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Gulamiya Ab Hum Nahi Bajeibo
Social Justice and Enlightenment
1
2
Manish K. Jha
OTHER VOLUMES
IN THE
SERIES
Volume 2
Justice and Law: The Limits of the Deliverables of Law, edited by Ashok Agrwaal and Bharat Bhushan
Volume 3
Marginalities and Justice, edited by Paula Banerjee and Sanjay Chaturvedi
Volume 4
Key Texts on Social Justice in India, edited by Sanam Roohi and Ranabir Samaddar
Gulamiya Ab Hum Nahi Bajeibo
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Social Justice and Enlightenment West Bengal
Edited by
PRADIP KUMAR BOSE SAMIR KUMAR DAS
SAGE Series in State of Justice in India: Issues of Social Justice, Volume I
Series Editor
RANABIR SAMADDAR
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Manish K. Jha
Copyright © Mahanirban Calcutta Research Group, Kolkata, 2009 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2009 by SAGE Publications India Pvt Ltd B 1/I-1, Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 11/13 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. The assistance of the Ford Foundation in publication of the volume is hereby acknowledged. The views expressed, however, are not necessarily those of the Ford Foundation. Library of Congress Cataloging-in-Publication Data Available
ISBN: 978-81-321-0064-5 (HB)
(set of 4 volumes)
The SAGE Team: Elina Majumdar, Sushmita Banerjee, Gautam Dubey and Trinankur Banerjee
Gulamiya Ab Hum Nahi Bajeibo
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Contents List of Tables and Figures Series Acknowledgement by Ranabir Samaddar Series Introduction by Ranabir Samaddar Introduction by Pradip Kumar Bose and Samir Kumar Das
6 7 9 29
1. Land Acquisition Act and Social Justice: A Study on Development and Displacement Ratan Khasnabis
43
2. Two Leaves and a Bud: Tea and Social Justice in Darjeeling Roshan Rai and Subhas Ranjan Chakraborty
74
3. Deprivation and Social Injustice in a Rural Context: An Ethnographic Account Kumar Rana with Amrit Paira and Ila Paira
95
4. On the Wrong Side of the Fence: Embankment, People and Social Justice in the Sundarbans Amites Mukhopadhyay
118
5. Prescribed, Tolerated and Forbidden Forms of Claim Making Ranabir Samaddar
153
Consolidated Bibliography About the Editors and Contributors Index
180 185 188
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List of Tables and Figures TABLES 3.1 Socio-economic Patterns of the Study Areas 3.2 Jorakhali and Betkundri: A Comparative Sketch
98 100
4.1 Block-wise Distribution of Population of the Sundarbans in the District of North 24 Parganas 4.2 Block-wise Distribution of Population of the Sundarbans in the District of South 24 Parganas
125 126
FIGURES 3.1 3.2 3.3 3.4 3.5 3.6 3.7
Employment Pattern in Jorakhali (Primary) Employment Pattern in Betkundri (Primary) Annual Income of the Households Educational Scenario in Jorakhali and Betkundri Sources of Medical Treatments Extent of Hunger in Jorakhali and Betkundri Perception of Justice with Regard to Service Deliveries
99 99 102 107 111 113 113
4.1 The Sundarbans and Area of Fieldwork 123 4.2 Erosion-prone Area of North Kusumpur 139 4.3 The 1,500 Feet Wide Ring Embankment of Garantala 140 and Adjacent 36 Acres of Land Acquired for that Purpose
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Series Acknowledgement
T
he publication of this series on the State of Justice in India: Issues of Social Justice is the outcome of a two-and-half-yearlong research and dialogue programme conducted by the Calcutta Research Group (CRG) on the theme of social justice. The research work particularly gained from the dialogues which were painstakingly noted down, edited and later on produced in the form of a report. The report was distributed widely, besides being circulated among the hundred odd persons who participated in the dialogues. The editorial team thanks Kazimuddin Ahmed, Shreyashi Chaudhury, Dolly Kikon, Amites Mukhopadhyay and Pritima Sarma for the work. It also thanks in particular Debdatta Chaudhury, Ishita Dey and Rita Banerjee for their painstaking assistance in producing the volume. In 2003, CRG—with the assistance of the Ford Foundation— embarked on a research programme on some of the critical questions facing post colonial democracies, such as India. Since then CRG has conducted collective research into issues of autonomy and social justice. Three volumes came out of the research programme on autonomy, namely, Indian Autonomy—Keywords and Key Texts (2005), The Politics of Autonomy (2006) and Autonomy—Beyond Kant and Hermeneutics (2007). The method of combining collective research and dialogues continued in this work. While we have already noted that the second research programme followed from the preceding one, this programme was designed in a specific way. It was not meant either to be a philosophical inquiry or a pure political research: the emphasis was on combining critical legal inquiries with detailed ethnographic studies, intended to find out popular notions of justice and their interface with the dominant legal forms. Of course, appropriate theoretical conclusions have been drawn in due course, and these conclusions reflect on relevant philosophical issues as well. Readers will be happy to find that, as on the previous occasion, we have again prepared a collection of key texts—this time on social justice. Besides, soon there will be an online compendium of Keywords on Social Justice.
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The editorial team collectively thanks the Ford Foundation and Bishnu Mohapatra in particular for their support all through this exacting and at the same time exciting work, including this publication. Finally the team thanks the authors and all those who participated in the review discussions. Their mutual encouragement, discussions and suggestions were critical for this difficult enterprise. Ranabir Samaddar Calcutta Research Group, Kolkata
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Series Introduction The State of Justice in India RANABIR SAMADDAR
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his four-volume series is a report on the state of justice in India. In the by now established mode of collective research, which is dialogic, empiricist, yet imaginative, and has thus become well known within a relatively short period of time, the Calcutta Research Group (CRG) has come out with another study on post colonial democracy, this time on the aspect of justice obtained in democracy, that is to say, the limits within which democracy will permit justice, social justice in particular. Readers can take this study as a report card on social justice in India, titled State of Justice in India: Issues of Social Justice. Readers, in pursuing this four-volume series on justice, may, at times, think that we are conflating democracy with justice; they may also think that we are confusing justice with rights, or at times with law or with equality. Or, they may even think that we are overwhelming the idea of justice with our notions of social justice, burdening it with too many ideas, realities and expectations. In thinking of the CRG study in this way the readers are not all that wrong. In fact this thinking reflects a reality of our time, namely, that if the society of the propertied weighs everything with money and transforms everything with its Midas touch, the society of the subjects weighs everything with the criterion of justice—law, government, delivery mechanisms of administration, punishment, peace, war, reconciliation, revenge, reprove, relation with the rulers, historical memory—everything that affects the subject’s individual–collective life fraught with different socio-political issues. The idea of justice, we can say, is the great
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supplement of our time. Hence, the theoretical and empirical extent of this inquiry into the state of justice in India makes the inquiry tantalising. It approaches the various spheres of justice, yet recoils from defining what social justice is; likewise the terms of reference in this research are clear, yet the inquiries are always leading to unexpected paths. On going back through the volumes, particularly the documents collected in the fourth volume, it seems to me that the study leaves a sense of something still remaining undefined, un-enumerated, and therefore the entire series is, as if, delicately perched on an abyss between the governmental notions of justice and the popular notions of the same. If we were to be faithful to the realities of justice, we could not have quarrelled over its definition beyond a point and laboured it to death. Is justice then fundamentally a response to what is perceived as injustice, as reaction or as an idea better understood as a negative notion (the other of injustice), or understood properly only when taken as response to injustice? The volumes suggest to certain extent such an answer, hence is the prominent idea of the inexhaustible nature of the phenomenon, as the various ethnographic and analytic commentaries testify. Yet there is something to this manifold nature of justice, which we can put concretely only to its forms such as attainment of dignity, or reconciliatory, or retributive, or say, instant, restorative, restitution, distributive, allocation-centric, pardon, sentencing, redress of historic injustice or rational. These forms indicate the particular ways in which ideas of justice respond to various conceivable situations, where these ideas bring to mind certain injustices committed as well as some positive principles and practices forming the foundations of these forms. Hence we have decided to cast our explorations in an agenda of four engagements: The first volume is titled Social Justice and Enlightenment: West Bengal. The second volume is titled Justice and Law: The Limits of the Deliverables of Law. The title of the third volume is Marginalities and Justice. Volume four is titled Key Texts on Social Justice in India. Cast in an archaeological mode of inquiry, we wanted to see the layers in the practices and discourses on social justice, and how time, place, history, perceptions, arrangements or apparatuses (such as legal, judicial, constitutional, administrative apparatuses) play significant roles in influencing the regime of social justice, that is, the ideas and practices making this regime. We also wanted to find out the conflicting discourses and actions in securing justice, and see how
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the conflicting terrain of social justice makes conventional democracy unstable because while democracy depends greatly on mass uniformity, constitutional unity and primacy of rule of law over other modes of regulating life, the contentious politics of justice creates deep fissures within these uniformities and primacies. Archaeological inquiry brings out these forms, fissures, levels, overlapping and conflicts. To say the least, these four volumes establish that the field of social justice is extremely contentious, hence dynamic. But these volumes make a more significant point, in fact a lesson for democracy, that is, that conventional democracy (in the sense of conventional democratic theory or in a regime sense, that is, the institutional profile of standard Western democracies) had little room for considerations for justice, while it had more room for liberty, fraternity and equality (that is to say, a theory and institution of membership of a national society, called citizenship, and formal equal membership of a collective). Yet post colonial experiences of democracy show that the widening and deepening of democracy take place through the dynamism that can be sourced to yearnings for social justice. This is the milieu in which rights have appeared always as claims for justice and collective politics has revolved around issues of injustice/justice. In this milieu, freedom, equality, liberty, care, protection and similar other principles of political society are weighed on the scale of justice. Yet, democratic theory has no clue to the way this can be theorised adequately. These researches not only point out the fundamentally unsettling nature of the question of justice, but also the possible ways in which democracy can take the issue of justice as one of its essential parts, which can, as a consequence, propel democracy towards becoming more democratic. For such a research agenda, studying liberal institutions and liberal theories would not have been enough; nor would setting up of prior principles for a positive notion of justice have been the appropriate way. Historical as well as ethnographic studies are needed in order to know the details of popular notions and practices of justice, the discursive reflections, the contrasting realities of governmental and popular justice and, most important, the variety of marginal situations which produce ideas and claims for justice. Taken as a whole, this series is an argument for an appropriate method, on which we can here comment a little more. The fact is that justice in high philosophy has been ever a prestigious theme. It has signalled the inscrutable philosophers’ and logicians’
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argumentations about nyaya (logic, principle, justice, equity, fairness, and so on) or as in the West, from Plato to Rawls and beyond, a discourse of order and management of inequalities and stations in life. The question faced in the beginning is: is this high route appropriate for the archaeological task we set for ourselves? We chose a more historically and ethnographically oriented route that was suitable for our task of mapping the various existing notions and practices of justice and their respective backgrounds, and our method as demonstrated here can be at best called guerrilla work in philosophy, because it subverts many philosophical assumptions without it putting on a philosophical garb. These ethnographic-historical studies have produced analysis from within. We did not adopt any pre-meditated analytical strategy. Thus several unexpected questions came out of our justice dialogues, which formed an essential part of our research mode, and they determine to a large extent the plan of this publication. In fact the three dialogues held at various places of the country influenced the research agenda, procedure, findings and consequently this fourvolume report.1 Those who have accessed the report will have an idea of how this dialogic route of research influenced the study.
II I do not want to anticipate here the editorial introductions to the four volumes. But we can briefly take a look into the features of our inquiry as contained in these four volumes. The first volume presents four chapters on the state of social justice in West Bengal. Based on ethnographic studies, they present scenarios of injustice, which not only form the context of justice and shape the specific local discourses of order, governance, rights, claims and justice but also mark two significant themes characterising our entire inquiries. The first is the theme of the local. The volume tells us that, while we can always say that there is a general regime of justice (particularly when we look at the scenario from the capital city, where we find the seats of the court, the main organs of the rule of law, administration, government, schools of justice, juridical training, and so on), the local acts itself out at times violently, and local perceptions of in/justice may be modelled spatially precisely along the line of distancing from the metropolitan. Rule of
Series Introduction
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law as the main mechanism of justice makes little sense to these specific local practices. But this takes us to an even more significant point. Why is it that in West Bengal, known as the land of enlightenment, a standardised language exercising hegemony over the entire state, domination of the upper and middle castes quite well spread over the state, and a long established court system (the place where the colonial rulers established the first seat of the highest court in India) we have these pronounced assertions of the local? Or, why is it that, notwithstanding this enlightenment, of which citizens of West Bengal are justifiably proud, the archaic rule of law remains fundamental in state governance so that nobody is held accountable for hunger deaths, or caste discrimination, or the deep backwardness of the minorities, marking large areas falling outside the core rice producing areas of the state (the core rice producing areas are Burdwan, Hooghly, North and South 24 Parganas, Nadia, Murshidabad and East Medinipur)? We have thus incorporated in this volume the study of a colonial act that still persists. It seems that West Bengal presents for us two classic questions on justice, namely, what constitutes the social of social justice? And therefore, what is in this idea of social justice that cannot be exhausted by governmental gaze on justice? Also, what are the contests that mark the field of the social? Clearly, there is a strong disjunction between the political career of enlightenment, on which the constitutional Left in West Bengal has thrived for several decades, and the career of the idea of social justice. Indeed, the West Bengal experience demonstrates that while democracy may widen as in several parts of the country, including West Bengal, through mass entry of workers and peasants and the rural and urban poor, and this may indeed facilitate long denied political justice for them (like rights of unionisation, and so on), this does not ensure social justice per se. What is more ironic is that the champions of political democracy, like the official and ruling Left parties in West Bengal, may not even recognise, and therefore acknowledge, that political democracy does not ensure social justice automatically. They may even say, as recent experiences of the state verify, that the struggles and contentions for social justice are counter-productive for the democracy they guarantee because these contentions target the hegemony of the political class, overwhelmingly coming from upper/ middle caste, liberal, leftist background. This hegemony they think is essential for the democracy they have ushered in, or have widened.
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They may also say that ‘narrow’, local ideas of justice actually injure celebrated concerns and ideas of national progress and security. In this perspective we can recall the situation in West Bengal in September 2007 when unrest over the inadequacy of essential supplies of food grains in fair price shops spread over a significant part of rural Bengal. The unrest brought before us these two worlds: one of enlightened concerns about the nation, and so on, and other of local, immediate, material concerns—concerns that are articulated as demands of justice. The events dramatically demonstrated the bifurcated world of concerns of the nation and the very immediate concerns of justice. Reports spoke of a man being killed and dozens of people injured in the district of Birbhum in the last week of September 2007 after hundreds of people clashed with police, accusing authorities of hoarding food stocks meant for the poor. Poor villagers said that subsidised food grains and sugar meant for them were being diverted to regular markets and sold at huge premiums by corrupt PDS officials. At least 100 people, including dozens of policemen, were injured in clashes in the week in late-September–early-October 2007 in the state during protests against what locals said was widespread graft in the government’s public distribution system (PDS). One report quoted Peeyush Pandey, the district police chief of Burdwan, where trouble broke out in that week, ‘We have deployed a massive police force and are trying to bring the situation under control.’ Witnesses said one protester was killed when the police opened fire to disperse a mob, but police said they were still investigating how he died. The incident occurred in Ketugram in Burdwan district when irate villagers laid a siege on ‘ration dealers’—as PDS agents are commonly referred to—and demanded compensation from them for insufficient supplies of wheat and rice. A police contingent rushed to the spot and rescued the ration dealers. Angry at the police action, the villagers attacked the houses of ration dealers and hurled stones at the police. They also set fire to police vehicles. As things went out of control, police first resorted to a baton-charge and then opened fire. Ayub Sheikh, a protester, was killed in police firing outside a block office in Lavpur area of Birbhum district, when political leaders inside were discussing the spreading agitation. Arson, looting and ransacking of ration shops were reported from several areas in the district, around 128 km from Kolkata.
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The same report quoted the police as saying, ‘Ration dealers and their families are being given adequate protection.’ Protests against corrupt ration dealers continued to rock the heartland districts of Birbhum, Bankura and Burdwan. Trouble had first broken out on 16 September, and then rapidly spread. Everywhere PDS dealers were accused of privately selling off government-subsidised wheat and rice at higher rates. In Mayureswar of Birbhum district, about 250 km from Kolkata, the houses of six ration dealers were set ablaze and their families assaulted. Villagers also looted property and food grain. One political party, the Socialist Unity Centre of India (SUCI), called a 12-hour strike in the district to protest against corrupt ration dealers, but it was later withdrawn at the behest of local leaders. Protests were also reported from Bankura district. Security forces led by Inspector General of Police (Western Range) Arun Gupta tried to cope with the situation even as consumers looted the shop of a ration dealer near Kirnahar bus stop in Birbhum district. Reports also spoke of villagers trying to set fire to grain storage depots and police vehicles, saying they were starving. Dozens of PDS franchisees surrendered their permits out of fear and police said they were investigating all allegations of hoarding. In this context it should be recalled that earlier that year, an inquiry by the Central government found that most of the rural poor in five states were not getting subsidised food supplies regularly. It found that only 10 per cent of the rural poor were getting regular supplies in dozens of remote villages of West Bengal. Yet it also has to be recalled that around that time, one newspaper reported the Chief Minster as saying that Bengal would have two more small airports soon (Business Standard, 3 October 2007), and that Air France was keen to operate flights out of city. Yet, in the wake of the trouble in the countryside, the same newspaper also reported that West Bengal’s poor track record on the theft of public grain was second only to that of the northern state of Uttar Pradesh, and Reliance, the giant conglomerate of everything saleable, had cut its troubled retail plans further. The irony was clearer when faced with shortage of food, the people of a village in Bankura let out their anger at a protest rally organised by the CPI (M) against the nuclear-deal, saying they wanted food and not nonsense. Villagers also beat the local Left leaders. Nearly a thousand villagers clashed with police, forcing the latter to open fire. A schoolboy (16) and another man (23) were injured in the police firing. Nine other villagers were injured in the baton-charge. They
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were admitted to hospital. As the news of violence at the CPI (M) meeting spread, violent protests against ration-dealers were reported from elsewhere in the district. State CPM Secretary Biman Bose admitted that the Left’s stand against the Indo-US nuclear deal lacked the force of bread-and-butter issues and would be difficult to sell as a campaign issue to an electorate. Meanwhile, what was happening in the official world of politics and the academia? The ruling party, the CPI (M), accused the Trinamul Congress, Congress, BJP and the Naxalites of deliberately trying to disrupt the ration system in the state. The welfarist, liberal, developmental economist, Professor Amartya Sen, found nothing wrong in forcible acquisition of land of the peasants by the West Bengal Government, and assured the people that in due time industrialisation would solve basic poverty as it had done elsewhere, even if meanwhile poverty increased due to forcible dispossession of land. 2 The question that comes out of all these reports is: what do the ‘ration riots’ in West Bengal, as they are remembered now, signify for the discourse of justice, particularly social justice? Readers will have to go through all the four studies presented in the volume to get a fuller answer to the question posed here. The second volume works on the relation that exists between law and justice in India. Once again, the strategy has been to go into specifics that will tell us of the formations in which justice and law have hitherto related to each other. Therefore, the second volume begins with a description of how in the moment of constitution making our legislators had engaged in the discourse of justice in a particular manner that enabled them to separate the issue of justice from other issues of democracy, political power and citizenship, so that the Indian Constitution, while it spoke of justice, never integrated it with other issues of the political society it was building. Therefore provisions of justice—and this is a point that CRG brought out in its researches on autonomy also (Banerjee and Das 2007, Basu Ray Chaudhury et al. 2005, Samaddar 2005)—remained as an adjunct, a provision of special nature not applicable to all, and therefore thematically submerged in many other things belonging to the constitutional domain or theoretically dissoluble in the mainstream of constitutional thinking. The Constitution insofar as it laid down the profile of fundamental legal justice was the other scene of that reality where political justice made sense only when it had addressed issues of social justice, and
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popular politics made sense only in the mirror of popular perceptions of justice. All these can be termed as the phenomenon of the ‘justicegap’, which means a gap between claims for justice and governmental (including legal and juridical) regime of justice. The volume thus, as if in a continuing narrative, takes up the issue of reservation in a major way through two long contributions—one documenting the history of reservations in India in the context of political contentions, mass politics, elections, judicial activism and policy games, and the other that shows how the policy game goes on in the language of courts and law. Yet both of these contributions indicate how the issue of justice remains inextricably bound up with the issue of expansion of democracy—a ‘state of exception’ for democracy, because democracy widens not, as we are told historically, through calls for liberty or laissez faire or economic liberalism or individual freedom or even nationalism, but through calls and claims for attaining or ensuring social justice. Indeed, the volume demonstrates that a legal system, whose main task is to rationalise, encode and enforce sovereignty, cannot deal with calls for social justice in its manifold forms, including the form that calls for an end to the repression of sexual freedom under a patriarchal legal regime, or for delivering justice in transitional situations which often make the dispossessed (dispossessed in the wake of the so-called transition to industrialisation and globalisation) the victim. Can we say then, on the basis of this report on the state of the relation between justice and law, that the gap remains never fully bridgeable; and to the question then of what constitutes the social in social justice, can we say that the social (in the context of justice) is what remains beyond what is governmentally constituted, administratively constituted or constituted by considerations of rule (that is, considerations of territory, security and streamlining of people into population groups)? May be that too is social justice, yet clearly in the domain of social justice we have no consensus. Conflicts abound. On the question of what constitutes the social of social justice, the mystery deepens and then resolves in the third volume, which is on marginalities and justice. Marginalities indicate marginal situations, marginal actors, processes of making segments marginal, techniques of producing marginal situations, the asymmetric power play in society, but more than all these, marginalities indicate strategies of inclusion, exclusion, differential exclusion and, most important,
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techniques of turning spaces into marginal enclaves—and all these in the interest of effective government. In this dynamic field (because while the government addresses one issue of marginality, its governing techniques produce other marginalities), the claim for justice is a product of marginality. Power meets its other in the issue of justice. In the social imaginary of justice, governmental politics is thus apprehended as its other, as its absence, as the void in a relation that was producing power. Marginality produces counter-power—and this is a play produced purely through the diagram of space configured through disciplinary and governmental apparatuses. Marginal positions are positions marginal to operations of power—positions that are produced by the operations of power. Therefore, issues of public health suddenly bring to surface situations and positions of marginality in relation to operations to govern society. Dalit communities may have marginal positions within. Marks of violence may signal the marginal positions in society because only violence may indicate how the marginal may strike back at the heart of the empire. In short, as the third volume demonstrates, justice may emanate from the dynamics of marginality, and this not a spatial given once and for all, but a spatial dynamic produced incessantly from the operation of a grid of power that wishes to rationally govern the society by compartmentalising it, disciplining it and controlling the flows that mark it. Therefore the same governmental techniques which, to some extent, may address issues of social justice, such as positive discrimination, may produce marginal positions out of their operations. Justice is thus, what I indicated in the beginning, something that tells us of the existence of a remainder; it characterises a void; it demonstrates what remains outside the operations of governmentality. It speaks of arrangements of social spaces. The remarkable chapter on AIDS, marginality and issues of social justice addresses the heart of the matter. The fourth volume is a compendium, whose nature is again governed by the framework of this research. It contains certain key texts. These texts hopefully will bring out the relational nature of justice, as also the fragmented nature of its existence. They will also tell us as to why we cannot retain in our political idea the full-blooded nature of sovereignty when we want that society should fully ensure justice. This is of course a problematic posed by the paradoxical relation between law and justice. Each document, say, is an appeal
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for justice—appeal to the state to ensure justice, appeal to ensure effective legal delivery mechanism; on the other hand, each document is a manifesto that law is not ensuring justice, that state actions fall short of ensuring justice, indeed state actions cause injustice. You need order that will be the form of justice; yet this order will soon appear to the society of subjects as causing injustice to some sections therein, specifically those sections that find themselves now marginally situated consequent to the operation of order. Justice is perched on that great meeting point—of the operation of law and order and the process of subjectivation, when the claims of the subjects must take the form of being just, that is to say, these claims will have a permanent relation to law and order, yet will always seem to emanate not from order, but from what lies beyond, that is, in ethical-political claims. With attainment of rights, thus, subjects can say that justice has been done, in fact with the right to justice, the subject has attained agency. With claims for social justice, we can say, the subjects of justice have made their political intention of going beyond the legally mandated nature of political society even more clearly. This four-volume report aims at telling its readers the conjunctional nature of justice in India. In the framework of enlightenment, law and social marginality the report shows how justice fares. This is a selective approach. Even 10 volumes, structured along the line of describing the state of justice in India state by state or issue by issue, or institutional organ by organ, or form by form, would not have been adequate; not even 20 volumes. We have gone for a select report. However, this method should now prevent us from coming to grips with the issue of social justice in a democracy, which would mean, to repeat, finding out what constitutes the social of social justice, how law fares in delivering justice, how violence becomes an essential part of the popular notion of justice and how the dynamics of justice is linked with the emergence of marginal situations, and therefore in the light of all these, how to read texts of justice. All in all, this is a report on the conjunctional nature of justice in India, and the specific questions that it poses for democracy. The fourth volume is particularly meant for future researchers and students, who hopefully will benefit from the work already done by CRG in this field. It follows the standard practice of CRG in setting up its research goals.
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III Yet, the summary of these findings is not just a summary—it leads to something more to which we can move our attention. The principal one of the specific questions—and I have hinted at quite a few in the beginning of this introduction—is namely, if democracy is destined to be tied in the near foreseeable future to the rules of governmentality, how can it inhere justice at the same time, whose foundations are perched, as these volumes show, on the intersection between governmental forms and the forms that lie beyond the politics of government? Social justice is that genre of justice that is not exhausted by the prevailing governmental forms of justice, namely all those that are enumerated by law, administrative order, court order, policy resolution in official circles—in short, what is termed as ‘political rationality’. If we have tried to engage with the question as to what is social in social justice, here is another engagement marking this inquiry you may say from the opposite angle, namely, what makes this social an issue of justice, which can mean fairness, equity, verdict, guarantee, recognition, dignity, punishment, pardon, reconciliation, compensation and, in cases, even innovation—all these forms depending on the particular ways in which these two components of the appellation called social justice (social and justice) are being defined at the moment of the meeting of the governmental and the supplementary forms. In fact, as the chapters on AIDS (Volume 3) and the court discourses on reservation (Volume 2) show, some of the issues of our life become social because they raise the question of marginality and therefore, of justness. Likewise, these issues become issues of justice because they have refused to be exhausted by governmental (which includes the juridical) ideas and practices, and have become social. In this contentious dialectics we can locate our histories of social justice. This probably needs to be explained a little more. How do marginal positions arise? The governmental obligations of modern rule, as Michel Foucault showed, arise from the necessity of governing effectively the sites of the ungoverned, therefore turbulence and risk, namely one’s own soul, family, kingdom, territory and people. Governing the soul results in the science of ethics and morals; governing the family adequately results in economy; governing the territory results in security and governing the people results in the
Series Introduction
21
sciences of the population (namely economics, demography, statistics, juridical science, political science, human geography, urban studies, and so on) (Foucault 2007). I think for us what is instructive in this observation is not that this just happened, but that the dictates of the sciences of caring of the self, governing the family well, similarly ruling the territory, taking care of security considerations and, above all, the population, resulted in a massive reconfiguration in the power diagram where marginal positions would be created with each act of governing, because governing would become essentially a fragmenting and dismembering task, the calculation of rational means and ends in this way producing and meeting its dead ends. Since the sovereign would not now intervene at each and every stage, for that would be impossible given the complexities of a modern society (economy, food production, ‘overpopulation’, right size of territory, right kind of people, public health, public education, equal conditions, individual freedom coupled with social segmentation, social stratification, class, caste, race and gender divisions, and so on), the art of governing would have to ensure justice also, even if that meant producing social injustice. Thus, while during the colonial time, the cry for freedom reflected the demand for justice, by the time the constitution was being made, the nature of the demand for justice had changed. The Constitution could not be content with saying that attainment of freedom was justice achieved, it had to now demonstrate in its body of provisions as how justice had been or was being vindicated in each of conceivable marginal position—thus you have references to caste, problem of equality, just division of resources, just exceptions, just compensations, just policies towards minorities, and so on, so that the Constitution could claim that freedom meant justice for marginal positions. In a sense then, we have here the age old question of politics: can the sovereign be content with dealing with obedience and the problems of control, or will it have to devise ways of governing people, habitations, circulation of people, money and commodities and, with all these, the territory in which the population resides, habitations exist and circulation of money, goods, labour, capital, information, and so on, takes place? It seems, for instance, from a primary reading of the Indian Constitution that the issue of justice appears to the sovereign as an extraneous one, not intrinsic to rule, though advices to the sovereign have been always that the sovereign must be just towards his
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subjects. Thus the problem for the Indian Constitution was not simply laying down certain advice to the sovereign, but also erecting rules of government, which meant among others the rules for ensuring justice for those who occupy marginal positions. It is in this moral framework that the great encounter between the governmental forms of justice and the popular ideas of justice takes place. In a more precise and institutional sense, the court, the executive, the legislature, the bureaucrats and the policy makers—all start discovering the limits to ensuring justice. All start saying now in defence of the limits that justice must be balanced with considerations of security. Security means taking care of and avoiding risks. But that means calculating certain possibilities as risks. What is risk? There can be inflation, food crisis, weakening of borders, infiltration, depreciation of currency, bank failure, weapon failure, intelligence failure, spread of gun and criminal activity, environmental catastrophe, weather failure, climatic disorder, widespread entry of travelling mass diseases such as the Severe Acute Respiratory Syndrome (SARS), brain drain and internal disorder leading to civil strife. All these are risks to the government. Governing in risk society would mean engaging with risks, reorienting policies, ensuring security, so that risks can be calculated and mostly avoided. This is precisely the governmental business that proceeded from the 1950s in India. The governmental frenzy with risks of course reached its climax in the late 1990s when in the span of a decade it came out with at least seven policies (rehabilitation and resettlement, information, food, minimum wage, agricultural insurance, national security and coping with national calamities) aimed at coping with risks flowing from nuclearisation of weaponry, opening up of the national financial and commodity markets and liberalisation of controls. But this task of taking care of security would soon come into conflict with the other task of governing, namely ensuring justice. To the government the question meant, what would constitute justice in a risk society? As a result we have now endless debates as to how these two considerations can be balanced. In a fascinating chapter on Jharkhand (Volume 3) the research shows how what years ago was a cry for justice, namely self-determination of the Adivasis and thus the demand for separate statehood for Jharkhand, now changes with time and today the cry for development has become the other name for justice. But if this shows how in many cases the governmental form
Series Introduction
23
acts as the model, the volumes also show that social justice is often perched on the intersection of the two varieties, which in a conflictual combination make up the philosophical and moral framework, within which justice—its manifold perceptions, practices and institutions— operates. One thing is true at any rate that demands for social justice go against economics and the very economic idea of free circulation of merits, men and resources. We have in this corpus of writings a genealogical account of the Land Acquisition Act (Volume 1), which shows how, on the strength of economic logic, naked dispossession of people of their land and other resources have continued for the last two centuries, and the enabling instruments have been this Act and its preceding and following legislations. The economic logic would be to allow freedom to begin because freedom does not begin anywhere by itself. But the economic logic and the governmental obligation to institutionalise freedom, however, soon comes up against other governmental obligations, one of which is to keep the society calm so that the risk of civil disturbances does not become immense. Hence, you may have the declaration of a National Emergency as in India in 1975—a classic risk situation—when the government is faced with the risk of social inequalities and social protests going out of hand, and therefore cannot allow the society to continue along the lines of laissez faire, the cornerstone of liberalism, and has to intervene in a pronounced way. Indira Gandhi’s Twenty Point Programme was an attempt to combine the sovereign’s power and governmental responsibilities. The sovereign has to keep the territory and the population secure under its unquestioned power and control, the government has to ensure that all relations that affect the rule, that is, behaviour or conduct of the subjects, are governed properly. Governmental justice, the classic example of which was the Twenty Point Programme, emerges in such a milieu, its apparatuses are forged under such condition, and if we recall the ideas of developmental administration and judiciary that emerged in the mid-1970s in India, we can see the permanent dilemma for the government. Courts too swing in mood in that dilemma: should they be an apparatus of security (of the sovereign, interpreted as the nation) or should they help the task of governing? They cannot, of course, avoid either of these two tasks. Hence, the periodic convulsion in juridical thinking
24
Ranabir Samaddar
with which we are now all too familiar. Because social justice cannot be bought by market mechanism (individual justice can be—if you have money you can escape caste discrimination in an Indian village or town and settle elsewhere), the government is therefore ever at a dilemma—how to intervene, how much to intervene, how to control, how much to control, how to leave and how much to leave to economic mechanisms? Administration of things is thus never an easy task for the government, who has to know the correlates of evil and freedom, and is thus always in the need of knowledge of something we can call as the physics of power. The general form of mechanisms of security and normalisation are never enough in such a conundrum. We shall eternally ask, should the criminal be kept long enough in jail to keep the society free of crimes, or should the criminal be set free once he has been indicted of crime, since thereby we have satisfied the requirement of justice?3 What would social justice mean in a risk society, which requires government of all relations and themes in a microregulated way? From the point of normalisation then social justice becomes a hindrance, though precisely for this reason, social justice becomes a motor for popular democracy. It disturbs the relation between politics and strategy, government and the sovereign, responsibility and freedom and normalisation and risk. Considerations of social justice mean, as these researches show, reflections on the sovereign, ways of rule and the sciences of government. But more significantly, these considerations would mean at least openness of the discourse for claiming redress for the wrongs done—a recognition of the wrong, a provision of redress, a guarantee that the wrong would not be repeated, custodianship of the corrections done, and an attitude of innovation or openness towards creating new mechanisms to act as guarantee that the wrong would not be repeated. This is what I have described elsewhere as minimal justice (Samaddar 2004). The argument for minimal justice has implications for the theory of sovereignty. Democracy could not make a dent in the theory, possibly that was not its purpose also. Nationalism and popular sovereignty— both closely related with the history of democracy—brought the juridical form of sovereignty into sharper focus, though both brought the imperative of government also closer home, as under nationalism and popular sovereignty the sovereign was to be close to the people, and was obliged to constantly explain that the sovereign was for the
Series Introduction
25
subjects, and intended their welfare. Yet, we must remember that even though democracy grew up under the aegis of these two, governance was never strictly its main occupation. It was a science to be practised by the experts employed by the sovereign. Democracy occupied itself with the issues of rights and law, but left the matter of ‘administration of things’ to the government. Thus democracy never raised the issue of the sharing of sovereignty—realising those forms, which would enable democracy to install popular governance at the lowest level in each sphere of life, autonomous arrangement for selfrule and an interaction of autonomies in a society reorganised along the lines of autonomies. With the clamour for social justice now marking democracies, the liberal theory of the state cannot easily incorporate those demands within its theory of sovereignty regarding the state, or within its theory of government based on a view of laissez faire, in which market mechanisms must be given as much space as possible to keep things flowing or circulating with ease. Social justice does not eliminate the problem of sovereignty; on the contrary it makes the problem more acute than ever. It now obliges the sovereign to become the great trustee of a mechanism called the administration of justice. Its freedom is curbed. It now has responsibility and an obligation to explain. This is where sovereignty and democracy start parting ways, because social justice, as these volumes show, raises issues ranging from legal pluralism to development, dignity and compensation, to contests around marginal positions. The art of government cannot save the sovereign from the challenges facing it. In a way through the emergence of the issues of social justice that now mark politics in a big way we have a reconstitution of the history of sovereignty. The state of justice, born in the feudal age and characteristic of the territoriality of that time, corresponded to the society of customary and written law. Then came the state of regulation, government, laws and controls, which mark the modern time, corresponding roughly with the society of industrialisation, mass population, developed trade and market mechanisms and risks about our biological lives stemming from famines, starvation, security threats, currency crisis, mass disasters, and so on. This state of regulation and government would be happy to be engrossed with issues of security and population. But the question of justice becomes a question mark in this neat history of transformation of the state. The reason is that issues of social justice on one hand do not allow the
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Ranabir Samaddar
sovereign to leave everything of daily administration in the hand of the government; it has to intervene as an exceptional power to ensure justice (once again recall the proclamation of National Emergency in India in 1975); on the other hand, the government is compelled to devise newer and newer techniques—based on a combination of legal and semi-legal modes—to satisfy the demands for justice, which its own governmental forms had in the first place given rise to. Neither the elevation of government to a sovereign position nor the governmentalisation of the state proves to be the solution. Social justice presses democracy to escape the closure imposed upon it by these two transformations—one or the other. The sovereign, suzerain, lord, landowner, priest, master, administrator, legislator and the judge—all have had their own specific ideas of how to administer justice, and governing justice has become a specific activity. In this the policing, prosecuting, trying, sentencing, jailing, interning, expelling, imposing penalty and finally killing— all have specific roles. All these are meant to combat risks of delinquency, murder, theft, illegalities, violence and all that threaten life and society. If this is the reason of the state and governance, it is clear that reasons of both the sovereign and the government lean heavily on functions of security so that social circulation continues unimpeded (recall the confinement of the AIDS patients). As I have pointed out, this in the long run injures the legitimacy of the sovereign because the sovereign was to rule for the benefit of the subjects. Social justice shows that police and justice, meant to go together, cannot go together. Political rationality fails because the co-existence of the reasons of the sovereign and those of the government is disturbed with the emergence of the issues of social justice. Social justice is thus a specific domain—perched on the cleavage between the two rationalities—of analysis and knowledge on the one hand, and intervention on the other. The truth of justice cannot make peace with the truth of politics. Governmental negotiation of issues of justice is shown in this collective research as not something transcendental. The more governmental power assumes microform to settle issues of justice, the more justice eludes the governmental regime (even enlightened administration, as shown in Volume 1, cannot escape the paradox of governmentality while it thinks it has addressed the issue of justice satisfactorily) and becomes an issue that is even more marginal in its position in society.
27
Series Introduction
That is why this series required a combination of case studies built on the theme of law and democracy’s engagement with issues of social justice—issues that owe their genesis to marginal positions in society and have not been exhausted by governmental rationality.
NOTES 1. For an account of the CRG dialogues on social justice, please see http://mcrg. ac.in/Dialogues_on_Justice.pdf. 2. I am drawing from the reports in several newspapers published at that time. The particular report I have referred to in the preceding two paragraphs is from the bulletin archives of
[email protected] on behalf of Palash Biswas. 3. See for instance the discussion in Hudson (2003), especially 203–26.
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Gulamiya Ab Hum Nahi Bajeibo
29
Introduction PRADIP KUMAR BOSE AND SAMIR KUMAR DAS
T
he present volume is a collection of writings reflecting on the state of social justice in present-day West Bengal. Much of the contemporary literature on West Bengal—albeit meagre and inadequate in many respects—dwells, at one level, on the plethora of new experiments with rural self-governing institutions and their implications for the rural power structure and, at another, on the state’s unique historical and political dynamics slowly consolidating the rule of the Parliamentary Left, particularly during the last three decades. The latter are often cited to make a case for ‘West Bengal Exceptionalism’ explaining the uninterrupted Left rule in the state for over three decades. The existing literature, in other words, has taken what Samaddar in his note on the present series calls ‘the high route’ and the question of social justice, according to it, is viewed more in terms of how the Parliamentary Left has fared in the sphere of development (particularly in the newly emphasised social sector), its performance (or even lack of it) and the changing nature of its institutional interventions over the years, presumably weaving a new web of governmentality, than in terms of how various sites of marginalities and popular notions of justice are produced and reproduced in the process and how—if at all—they contribute to certain renegotiations of governmental strategies. All the chapters contained in this volume, both individually as well as together, draw our attention to various sites of marginalities and articulations. These popular notions, contrary to the commonplace argument, do not point to the deficits of governmental notions, deficits that can be diagnosed, made good and compensated with ever-greater doses of democracy; they on the contrary bear the marks of peoples’ everyday struggles against the forces and capillaries of governmental operations. By refocusing the agenda on the technical issue of deliverability of justice and viewing
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Pradip Kumar Bose and Samir Kumar Das
the government as one of the most important delivering agencies, the existing literature takes the contents of justice as given and knowable, if not already known, as much as it singularly rules out the possibilities of the concept’s contentious articulations at various sites of marginalities.
THE SOCIAL
IN
SOCIAL JUSTICE
In an essay on the rise of the social, Gilles Deleuze writes: ‘the social refers to a particular sector in which quite diverse problems and special cases can be grouped together, a sector comprising specific institutions and an entire body of qualified personnel (“social” assistants, “social workers”)’ (Deleuze 1979: ix). As a domain of knowledge and intervention, the sphere of the social was not created in one day, but there is a history of that social which needs to be investigated and written. The social in social justice relates to various forms of inequalities, deprivation, denials and distress in different fields like education, health, employment, and so on. Delivery of justice calls for intervention into these fields, which results in a panoply of interventions that accounts for the creation of a domain that several researchers have termed ‘the social’ (Donzelot 1991). The implementation of social justice requires recognition of certain specific social phenomena as ‘social problems’, which in turn requires extensive knowledge about the population and the correctional technologies in terms of law and social planning. Thus the delivery of social justice and creation of its mechanism lead to the setting into place an apparatus of knowledge and power that took it upon itself to optimise life by producing it under modern conditions. Delivery of justice thus can be termed as ‘government of the social’ and the history of modernity is not only the history of knowledge and justice, it is also more revealingly, the history of the social. We can, therefore, say that the question of justice and its history imply the continuation, in other places, of this history of the social. We can see this history in various legislations, which have laid the foundation of what may best be termed as social right. This comprised laws dealing with work condition, protection of workers in various circumstances like accidents, illness, old age and unemployment,
Introduction
31
laws protecting women and children in a family, as well as many measures aimed at securing conditions for health, education and morality of all members of society. In theory, the figure of the social is often represented in terms of solidarity—a notion which was conceived as distinct from that of sovereignty. One finds reflections of this in the writings of Durkheim when he speaks of mechanical and organic solidarity. In other words, solidarity simply expresses the rationality of the organizing practices of society. It was Durkheim who stressed the irreducibility of social phenomenon either to the psychological motives of the individual or to the dreams of pure political will. To understand and act on social phenomenon it is necessary to start—always and exclusively—from social facts. In other words, it is by acting on the social milieu that one makes changes, not by proclaiming moral and political maxims. The idea of social right has been developed under this sign of solidarity, which in turn creates the figure of the state as the guarantor of society’s progress. It can be noticed that majority of social justice issues is addressed to the state. In the name of social right the public power increasingly intervenes in the sphere of civil and private relations. Social right presents itself, therefore, as a practical application of the theory of solidarity. The question here is how rights can be given to various underprivileged sections, without giving them a right over the state. In conformity with the doctrine of solidarity, social right seeks only to make up for the shortcomings of society—it aims to mitigate society, not reorganise it. The solidarist definition of the state requires it to act on the forms of social bond and not on the structures of society. It substitutes the principle of social compensation for the moral demand of justice and counterposes the principle of a promotion of the social to the pressure to be exercised on the state for a possible reorganisation of society. The consequences of such a course of action is that society is dispossessed of a direct hold over its future and the state no longer appears as only a power that protects society’s solidarity but as the positive manager of its progress and the agent of its destiny. It is here that the foundation of the welfare state—the state, which will deliver justice and create conditions for wellbeing to all—lies. The principle of the welfare state which stands outside society and whose function it is to guarantee society’s progress and justice to its people aims at the
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gradual realisation of a consensus society. The state, from its position of reinforcing the solidarity of society so that it could pursue its own progress gradually, aims to guide society’s progress. The state becomes positively responsible to society so as to gain the means for securing the social promotion of society and eradicating the sources of injustice. Society is no longer the subject of its evolution so much as the object of promotion. If we keep this larger perspective in mind, the question of democracy, the state and enlightenment discussed below will be quite apparent.
ENLIGHTENMENT’S HIGH ROUTE
TO
JUSTICE
In a sense, democracy, with its promise of addressing and caring for people’s demands for justice, diverts our attention from the production of alternative notions of justice at sites of marginalities created by it. Injustice is being defined as a deficit of democracy—only democracy as a political form is deemed to have the potential of making good that deficit. Indeed, as we argue in this volume, the existence of a democratic state per se is a problem for justice insofar as it is taken to mean a certain degree of convergence between the state and the people living within it, and vice versa. If democracy has been historically unable to free itself from the governmental web, it registers the inadequacy not of democracy per se but of any actually existing democracy that is caught in the web. This tradition of viewing a democratic government, including the Left, outside the governmental web in postcolonial West Bengal is part of the same ‘Enlightenment framework’ that seems to have exercised its hegemony over the Bengali intelligentsia since the early 19th century. Bengal being the cradle of ‘Enlightenment’ or to use the more widely circulating term ‘Renaissance’1 is understood to have resolved the question of social justice unlike many other States of India. While social justice remains a burning issue in neighbouring Bihar/Jharkhand, Orissa or Assam, West Bengal having passed through the experience of 19th century ‘Enlightenment’ is spared of many of the evils and injustices that do not persist any longer. The Left—especially the Parliamentary Left—claims itself as the legatee of ‘Enlightenment’ and comes to political power with a claim of having foregrounded the issues of justice in the public discourse.2 Atrocities on the Dalits (the downtrodden) and caste wars
Introduction
33
are claimed to have become passé. Hunger and starvation deaths may stalk villages of Kalahandi, Koraput, Bolangir or Vidarbha, but not West Bengal. Communalism may characterise the politics of Gujarat but not West Bengal where any conflict between the majority and the minority is alien. The official response in West Bengal is predictable. Thus, to cite an instance, official records, as it is claimed by the government sources, show that the Adivasi (indigenous) Sabars who died reportedly of starvation in Bankura in January 2008 availed themselves of the rations that were due for them at subsidised prices in ration shops—never mind if the fellow villagers complained that the ration dealer was unscrupulous and issued fake receipts in their names, himself appropriating the food grains in order to make profit by selling them in the open market. They may have died but not of starvation. If prime agricultural land is taken over from the landowners in the countryside for setting up chemical hubs, industries and Special Economic Zones (SEZs), the government here is mindful of the poor people and offers the ‘best’ of compensation packages in the whole of India. ‘Enlightenment’ is the magic wand that has removed all these social evils and injustices and helped the state in surging ahead of others. This is the reason why West Bengal ordinarily does not form part of any critical inquiry into the state of social justice in India. It is true that one may have one’s reasons for hesitating to describe the 19th century intellectual ferment as ‘Enlightenment’. But true to the tradition of European Enlightenment, the Bengali intellectuals challenged the colonial rationale of differentiating India from Europe in terms of their respective civilisations and the responsibility that the colonial rulers assigned to themselves for making the transition to Enlightenment possible in India. The difference made by the colonial rulers was at the root of the argument that Indians being backward and retrogressive were not eligible for democratic self-rule and hence need the guardianship of the colonial authority. Many of the Bengali intellectuals, on the other hand, were in favour of treating everyone as equal legal personalities—irrespective of their civilizational differences. As Chaudhuri paraphrases the agenda in the following terms: They … insisted on political privileges and equality of status with the Europeans, agitated for removal of disabilities, extension of the area of association of the Indians with the administration at the highest level, and prevention of European exploitation and colonization. They also confronted the Government for the freedom of the press, for local self-government, for
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the introduction of elective principles in public organizations and for other rights, which were enjoyed by the free peoples of the West. (Chaudhuri in Chaudhuri et al. 1972: 10)
The project at one level was driven by this desire of placing the colonised at par with the colonial rulers insofar as the law of the land is concerned. Kishorichand Mitra, for instance, strongly condemned the exemption of the British-born subjects from the jurisdiction of the ordinary courts in the district towns and regarded it as unconstitutional and unjust in principle, and often oppressive in practice. Indeed, Govindchandra Datta was the first to raise his voice against such inequality in the eye of law as early as in 1846 and against imprisonment—even of ‘bad characters’—without adequate proof. There were others too who wanted equal representation in lawmaking bodies and the jury. But at another level, this Enlightenment project, as it is now being reviewed in the existing literature and particularly concerning its promise of legal equality, has had an extremely limited social constituency. The whirlwind of Enlightenment was blowing—to borrow the words of Benoy Ghosh—‘through a small, half-closed window in the attic of the upper echelons of the society’ (Ghosh 1979: 176).3 The intellectual ferment could stir up only the tip of the iceberg. Social justice through the ‘high route’ of Bengal’s Enlightenment, instead of creating any significant social ferment, took the easy route of bringing about social changes through legal reforms, by way of constantly appealing to the wisdom of the colonial rulers and thereby making them initiate and undertake legal reforms with varying degree of success. The idea was to introduce legislations wherever they did not exist to change the then-existing social practices, which they thought, were arbitrary and unjust, and therefore, wherever they existed, the Bengali intellectuals also worked for legal reforms. Thus, the way Plantation Acts and legislations were replacing each other as if in a fairly long sequence between 1859 and 1893, speaks of their growing sensitivity to address many of the informal labour-recruiting practices that sought to escape the laws and contributed to the abysmal exploitation of the laws. Most of these reforms were made in response to the advocacies made by Sadharan Brahmo Samaj and particularly leaders like Ram Kumar Vidyaratna and Dakshina Charan Chattopadhyay, and so on. Notwithstanding their sincere efforts, all of them treated the tea labourers as ‘helpless and mute masses bereft
Introduction
35
of any self-confidence and self-power’ (Chaudhury 1989: 150). Thus, law and legal reforms became the keywords of justice in Bengal’s Enlightenment framework. This obviously set forth an agenda of social justice that was top-down in character—an agenda that was perhaps destined to take the ‘high route’ at a time when the distance of the leaders from the people was too critical to be overcome by them. It was a time when history recognised the efforts of those who sought to bring the people in the dark under the light of Enlightenment and their guardianship.4 Thus, in both cases of the Dalit and the tribal labour of tea plantation in the Darjeeling hills and the poor and marginalised of the arid and infertile West Midnapore or the ecologically fragile and submersible Sundarbans, justice—according to the Bengali intellectuals—was never regarded as a means of self-empowerment and subjectivation of those who were historically on the wrong side of the spectrum. In the final analysis, it depended on the goodwill and wisdom of the rulers. Bengali intellectuals took more than a century to realise that colonialism by virtue of being what it was could not be made to disregard the dichotomy between the Indians and the Europeans and the civilisational distinction that obtained between them. For example, Dwarkanath Ganguly—the outstanding Bengali intellectual who held his cudgels for the distressed tea garden labourers sought to redress the sufferings of the tea coolies ‘with the cooperation of high officials in India and England’ (Datta 1995: 26). While this certainly led to a certain broadening of the social base of Enlightenment, it did not involve any agency of the tea labourers. This implies mobilisation of the tea labourers strictly under the leash of the intelligentsia. As the agenda of social justice in the Enlightenment era comes to be defined by the great enlighteners, the victims of injustice are viewed as its recipients on whom falls the ‘light’ of justice. Justice is keyed to a monologue. The ‘social’ of ‘social justice’ was thus appropriated by the intelligentsia and reflected as in the case of the Sundarbans a concern of the historians and sociologists, a concern for shedding the ‘light of civilization’ (Sen 1935: 1126) on it. The clamour for legal equality vis-à-vis the colonial masters mentioned above was not backed by any serious attempt at levelling off the hierarchies internal to the societies of the colonised. The intellectuals’ claim to ‘represent the whole people’ (Ahmed 1965: 70) was not complemented by any concrete social agenda.
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Dinesh Chandra Sen’s Brihatbanga, first published in 1935, has a section on the history of the Sundarbans added to it only as an appendix, titled significantly as ‘The Provincial Histories of Bengal’ (Banger Pradeshik Itihas). Justice has no history until it is rediscovered in the time of Enlightenment and literally ‘enlightened’ by the great excavators, archaeologists, historians and scholars of the 19th century. Although the ‘light of civilization’ fell first on the western part and historical evidences suggest that the Guptas, the Palas and the Senas successfully ruled over the Sundarbans in ancient times, the history after its submersion and the growth of jungles and swamps still remains unknown. The Sundarbans, as the book tells us, came completely under Islamic rule by 1465. Subsequent submersion of the land and the growth of jungles and swamps made it ‘unfit for tax collection’ (kar adayer janya anupayukta) (Sen 1935: 1132). As the jungles grew on what once was a thriving civilisation, it remained cut off from the scope of stable political rule. Social justice, in other words, becomes a problem of enlightenment and establishment of stable political rule associated with it. Justice is available only to all who are lit up by ‘the light of civilization’ and not for those who remain in the dark, are not part of any stable political rule and do not pay taxes to the authorities. The Sundarbans was pushed out of the agenda of justice insofar as it went into oblivion presumably due to a great natural disaster in an otherwise little known history. The ‘light of civilization’ does not fall on all sections in the same manner. Bhudev Mukhopadhyay’s Samajik Prabandha (Essays on Society), first published in the form of a book in 1892, interestingly reduces social justice to the central Enlightenment problem of bringing the people remaining in the dark to light. He privileges Hindus as the light-giver and it is by coming under the light offered by them that the Muslims and the aboriginals (adim) can hope to get justice. Bhudev particularly makes a mention of the Muslims and argues that their ‘social system’ is closer to that of the ‘other nations outside India’ (Mukhopadhyay 1981: 11) than to anyone inside. The Muslims, according to him, boast of being the descendants of the Sultan of Turkey or the ruler of Persia. He also traces the lineage of the lower castes of Bengal (a good number of them converted to Christianity) to non-Aryans and argues:
Introduction
37
Amongst these people, the national spirit (jatiya bhav) still remains confined to the spirit of their (respective, editors) communities. But everywhere, the aboriginals are gradually accepted into the lap of Hindu society. The Hindu society (that is) replete with religious rituals, the peoples’ elaborate entitlements to perform them and the wider foundation through the strict observance and recognition of casteism is totally appropriate for making the aboriginals fit for the state of civilization (sabhyabastha) and progress. (Mukhopadhyay 1981: 20)
He also makes the point that ‘the awakening of the “national spirit” in them can come about only from within the Hindu society and this is going to happen’ (Mukhopadhyay 1981). The same distinction between castes having their lineage to the Aryans and to the non-Aryans is also central to Satish Chandra Mitra’s analysis of the caste system in the Sundarbans. Even the same caste (like the Pods) is divided between the Aryans and the non-Aryans and the two sections, according to him, are ritually separate from each other (Mitra 1922: 842). Injustice works itself out differently in different and hierarchically placed social constituencies. In a sense the official claim that there is hardly any challenge to the consensus about the dominant development model (based on rapid industrialisation with a radical change in the land use pattern) being followed in the state marks a distinct continuity with the Enlightenment project of bringing the people remaining in the dark into light. Such challenges being treated as ‘exceptions’ do not destroy the essentially popular nature of the consensus. The ‘minority’ that challenges it is either dismissed as ‘outsiders’ having no stake in the local economy undergoing rapid transformation or doing it as part of some vicious scheme of discrediting a people’s government that is evidently based on overwhelming electoral majority. Command and consensus together produce what Samaddar calls a ‘high capacity regime’ that because of its claim of being based on popular consensus envisages no opposition to it. The people who oppose ‘development’ are condemned to darkness and hence need to be persuaded to appreciate the ‘light’ of development. Our studies in this volume show that poverty and hunger are unevenly distributed across diverse ethnic communities of West Bengal as much as there is ethnic division of labour in the Darjeeling Hills, predominantly tribal West Midnapore and the Sundarbans. Kumar Rana, Amrit Paira and Ila Paira (this volume) find imbalances in the
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Pradip Kumar Bose and Samir Kumar Das
incidence of starvation and hunger amongst diverse ethnic groups and communities. The recruitment of immigrant Nepali labour in tea plantation was provoked by an ethnic factor: ‘the Lepchas were not employed in tea plantations, as their lifestyle did not suit wage labour system of the tea plantation.’ If the Lepchas are excluded then it was, as Rai and Chakrabarty argue, ‘ethnic exclusion by default’. Slavery in the tea gardens takes on the form of an ethnic tug of war between the Nepali workers and non-Nepali plantation owners and labour contractors. Scheduled Castes form the bulk of the respondents of Amites Mukhopadhyay’s chapter (Chapter 4, this volume).
SITES OF MARGINALITY AND THE PRODUCTION OF JUSTICE In many ways, justice as a problematic in West Bengal continues to be informed by the Enlightenment framework mentioned above. The present collection of essays seeks to offer a critique of the framework and proposes to investigate into the issues and questions of justice outside the framework. Enlightenment’s diverse forms seem to have been inspired by a common body of premises that gradually helped in laying down a framework and establishing its hegemony over the body politic. While Khasnabis’ chapter (this volume) points to the inherently abrasive nature of governmental operations that refuse to be bound by the liberal promises made by modern states at the heyday of European Enlightenment, in more positive terms it calls for the separation of the issue of governmentality from the liberal or neo-liberal ideologies of justice. Governmental operations are too intricate and complex to be bound by what these ideologies lay down for the state to follow. Governmentality, as Foucault tells us, is less about ideologies and more about ruling people and organizing diverse segments into a disciplined and governable body of population. Thus, the impossibility of ‘meeting the full value of the asset that the displaced are dispossessed of’ within the prevailing market framework—thanks to the acquisition of land for industrial purposes since the days of Industrial Revolution in Great Britain—did not and does not prevent the actually existing
Introduction
39
states with liberal promises from acquiring land and flout the principle of equity otherwise held as central to its liberal being. Market simply cannot compensate for all that it takes away when land is acquired for setting up industries and therefore cannot ensure justice in this regard. Justice defined as compensation a la liberalism becomes the obvious casualty in this tussle between the market principle of private property and the liberal principle of equity. The imperative of governmental operations makes the actually existing liberalism to compromise with the second. Rai and Chakrabarty (this volume), on the other hand, prefer to define justice in terms of the principles established by law. Thus, the Plantation Labour Act (1951), according to them, offers some kind of a benchmark for justice insofar as justice in the Darjeeling hills is concerned. At a time when the workers are afraid of lockouts and losing their jobs—in case they agitate too much—‘they usually accept what is offered to them’. It is obvious that the provisions enshrined in this Act are not ‘properly implemented’. Although the argument sounds legalistic, the history of plantation legislations in India underlined above reminds us of one of the longest sagas of tea workers’ struggle against the plantation owners, employers, labour contractors and often their own leaders and unions since the late 19th century and an entire series of legislations enacted during this period to address and alleviate their conditions. If the paper takes law as the benchmark for justice, it also gives unto itself a history that carries the distinct traces of people’s struggle for justice and the expansion of its ambit that it brings about in the wake of these struggles. However, one does not have necessarily to subscribe to any triumphalist view of these struggles and the history of plantation legislations whether in the colonial or in the postcolonial era. The history can hardly be said to be a linear one. Plantation Labour Act (1951) mentioned above addresses only the organised part of the tea garden workforce accounting for, according to the authors’ estimate, only 15 to 20 per cent of the total tea garden labour in India. On the other hand following Amartya Sen and his associates, Rana et al. define justice as a set of minimum conditions (like food, health, education and environment) that confer on relevant individuals, groups and communities an agency to ‘pursue the ends that they think they have reasons to value’ (Sen 1999: 14–15). Justice per se is not an agency; it only refers to a body of agency-conferring
40
Pradip Kumar Bose and Samir Kumar Das
conditions, which are historically denied to the already marginalised individuals, groups and communities. These conditions are not opportunities but are conferred by the society in recognition of their everyday struggles and movements. The babus do not want the tribal5 children going to schools and acquiring education. They are the victims of ‘active discrimination’ (rather than unintentional neglect) prevailing in society. The paper betrays a certain cynicism in the popular attitudes towards the justice-delivering potential of the state. For, the very structures of delivery at the local level also give one the power to ask for a rent to be paid in order to seek justice. Justice defined as conditions turn into a commodity that comes with a price tag and therefore can be afforded by those who can pay it, as Janki Mahato, one of their interlocutors, feels. This implies commodification of justice and completely polarises society into the ‘haves’ and ‘have-nots’ of justice. Derogatory remarks against the political leaders are heard frequently in a rural society. Hatred is ‘manifested’ and often ‘takes the route of violent recourse’. Mukhopadhyay’s paper (this volume) marks a departure in the sense that he treats justice as an indissoluble remainder of and a supplement to people’s perceptions standing apart and refusing to be dissolved into any of the governmental grids of justice. The paper eloquently traces the genealogy of a newly emergent ‘politically correct’ concept of ‘ecological justice’ that, according to the author, is vacuous insofar as it shifts the terms of discourse from the Sundarbans defined as a lived space to one defined as a ‘wasteland’ during colonial times and then as ‘a natural resource site’ now. In neither of the latter constructions, Sundarbans appears as a lived space—a space where people, mostly the poor and the marginalised live. It is difficult—sometimes impossible—to define and demonstrate the remainder in affirmative terms. But it is perfectly possible for us to argue, as the author does, that the people negotiate with the administrative and governmental rationality without at the same time harbouring any necessarily positive idea of justice. Not everything in our sense of injustice automatically translates into justice that passes through ‘some known legal or ethical values’. Judith Shklar, for example, proposes to turn the tables around and urges the world’s actually existing democracies to focus on injustice rather than justice: ‘… it is the necessary democratic voice. The claim may be unfounded on the available evidence and might be rejected, but the putative victim must be heard’ (Shklar 1990: 90).
41
Introduction
Thus, ‘ventilating grievances against injustice’ in the words of Mukhopadhyay becomes synonymous with ‘a strategy of survival’ and not necessarily with the production of any affirmative conception of justice. One of CRG’s earlier works on forced displacement of population points to this critical incommensurability of any sense of injustice with a corresponding conception of justice (Das 2003: 10–12). In the absence of any positive notion, justice finally refers to an ensemble of claim-making practices. ‘Persistent’ practices constantly threaten to blur the textbook boundaries among their prescribed, tolerated and forbidden forms and in the words of Samaddar expose the ‘weaknesses’ of high capacity regimes. If development today impinges on our lives like never before by affecting our land use and food patterns, livelihood, health and dietary practices, biological clock and sense of sanitation, hygiene and perceptions of pain and pleasure, then claim-making also revolves on issues relating to ‘life-stakes’. More than what Foucault would have us believe, biopolitics also works in reverse and ‘biologises’ our resistance and struggles as much as it governmentalises our biological existence. Much of the present era of democratic politics is marked by this reverse biopolitics. This encounter between an otherwise high capacity regime and the practices of claim making therefore is crucial to the functioning of democracy and enhances its ‘dialogic capacity’. In the absence of any ‘inherent capacitor’, the fate of democracy all around the globe, according to Samaddar, thrives on its dialogic capacity. This book is a modest attempt at reviewing the status of social justice in contemporary West Bengal. CRG will feel rewarded if it is able to generate a lively debate on the issues of social justice.
NOTES 1. Such terms as ‘Renaissance’ and ‘Enlightenment’ were and are being widely used almost as synonyms to refer to the intellectual and social ferment of the early 19th-century Bengal—although in the European context they refer to two quite different movements in history. 2. Social justice in other words continues to be viewed through the prism of Bengal Enlightenment. Once social justice is subsumed under the framework of Bengal
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Pradip Kumar Bose and Samir Kumar Das
Enlightenment—otherwise considered as an immensely successful social and intellectual movement—questions of social justice are believed to have been solved in (West) Bengal unlike in other parts of the country. 3. Unless otherwise stated all translations in this book from original sources are the author’s. 4. Questions of justice are regarded more as intellectual problems than as problems of mass movements and peoples’ struggles. 5. Although politically incorrect, such terms as ‘tribe’ and ‘tribals’ are freely used both in official circles and in popular parlance in India.
43
Gulamiya Ab Hum Nahi Bajeibo
1 Land Acquisition Act and Social Justice A Study on Development and Displacement RATAN KHASNABIS
INTRODUCTION
A
cquisition of agricultural land for non-agricultural economic activities is justified on the ground that the return from nonagricultural activities either in terms of contribution to Gross Domestic Product (GDP) or in terms of net addition to employment is usually higher. Non-agricultural economic activities—activities in the secondary sector or in the tertiary sector—can absorb the surplus labour in agriculture that stagnates there with zero marginal productivity and therefore, such alternative uses should definitely provide a more productive utilisation of land. This is the standard argument and the history of economic development has definitely vindicated this point—be that in Europe during Industrial Revolution, be that in the newly industrialised countries in Asia in the post–Second World War period. There is, however, a rider. The entire agricultural land of an economy cannot be converted to non-agricultural use based on the economic rationale of productivity gain. Agriculture is needed for providing wage goods to the workforce engaged in non-agricultural activities. As the area under agriculture declines, even with rising productivity in agriculture, the industry and the service sector might suffer from wage goods constraint—a situation under which the nonagricultural sector might also stagnate.1
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Be that as it may, a massive drive for converting agricultural land to non-agricultural use is taking place in the Third World in the recent phase of globalisation. Since the land market is not adequately developed, the conversion of agricultural land to non-agricultural use is being done by utilising the instrument of state power. The state acquires the land in ‘public interest’ and hands it over to the non-agricultural sector.2 Acquisition of agricultural land for non-agricultural activities leads to the displacement of the people who earn their livelihood from the land-based traditional occupations. Displacement without a collateral provision for maintaining livelihood with dignity for the persons displaced is considered to be unjust in a modern society. This is why displacement in modern society is usually associated with a provision for compensation.3 The compensation that the displaced persons would receive should be based on the principle of equity. The problem, however, is that the principle of equity is not always honoured in settling the compensation package. The full cost of creating collateral provision for maintaining life with dignity cannot be realised in a market-mediated transaction, first, because many of the constituent elements of total cost cannot be translated into the language of market economy. Second, for the elements for which the market instruments can work, efficient pricing cannot be done in many cases because of the inadequacy in the development of the institution of market itself. Again, even if economic values are assigned to the damages, the problem remains with fixing the agencies that would bear the responsibilities. The private agents would hardly accept full responsibilities of compensating the displaced. To what extent the state would bear the cost depends on the political power which often works against the weaker sections of society. The equity-based principle of compensation can therefore be hardly adhered to. The basic problem is that compensation is usually perceived only as the compensation for the loss of property rights4 on land. Land, however, is the basis of many other rights, including the right to occupation. The principle of equity states that a collateral provision for maintaining livelihood with dignity is necessary before a person is displaced. This can hardly be honoured if the compensation is offered only on the basis of property rights on land. The principle of equity is further violated if the property rights on land remain ill-defined. Thus equity-based justice is consequently denied to a section of the displaced persons. The compensation that a displaced person receives
Land Acquisition Act and Social Justice
45
when the land is acquired is the expression of justice that he gets from the agents that displace him. Due to market failure or market imperfection, ‘justice’ as translated in terms of cash compensation or a provision for alternative means of livelihood is what the dominant social force that shapes the path of economic development considers the best that it can offer to the displaced. Usually, the mitigator is the state. The offer comes to the victim as the order of the state that executes it in a disciplined way by creating a legal provision of land acquisition for ‘public needs’. In the legal provision itself, there remains the possibility that the justice, which the displaced receives, denies the basic human rights—the right to live with dignity. Economists would seldom discuss this issue because this politics of justice cannot be captured fully in the language of economic cost of displacement. We understand that ‘justice’ that the land-based population of society receives from the dominant social forces is best captured in the history of evolution of Land Acquisition Act (LAA) and the land laws defining various rights on the natural resource called land. Hidden in every land law, there is a concept of social justice pertaining to land relations, ownership rights, land management and land utilisation patterns. Land Acquisition Acts document the will of the state power as regards revising/redefining these rights. A careful reading of the texts, as Karl Marx did with respect to the Factory Laws of England (Marx 1976: vol.1, ch. 24), would reveal the internal social tension and the nature of ‘justice’ that the dominant social group (class) offered to the victims. In order to develop this theme, we would first outline the concept of justice that evolved in England in its early stage of capitalist development when a massive displacement took place from agriculture. Known as the Enclosure Movement, the act of displacement of a large section of the peasantry from British agriculture during the early years of its capitalist development caused a change in the then concept of justice in feudal Britain. In the first section of this chapter, we would study this history. The more recent wisdom on justice that the disposed should receive would be outlined in the second section. In the third section we would consider the history of Land Acquisition Act in India with special reference to West Bengal. The purpose is to study the process that the legal provisions for compensation take recourse to as the social order changes.
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ENCLOSURE
AND THE
CONCEPT
OF
JUSTICE
The Feudal Justice In pre-feudal Europe, the concept of ownership over land was based on Roman Law, which provided unitary and exclusive right of the family (community) over agricultural holding. In the feudal era the right over agricultural holding was based on the feudal canon under which the right over land was bifurcated. The lord had ownership right over all land under his estate but he used to lease out the land to vassals against their feudal service. Under feudal canon, the vassal also could freely parcel out his estate (known as fief) and sub-enfeoff to the vassal of his own; thus he would become a middle lord. Sub-enfeoffed vassal had loyalty to the middle lord only. The ordinary peasants lived in a manor (usually found in central and south England). A manor had a distinct geographical boundary, under the control of the concerned feudal ruler. Within a manor, depending on the size of it, there was a village or a cluster of villages. The manor provided subsistence to the villagers who used to settle there and exercised customary rights over its open arable fields, its meadows and its common ‘waste’ of woodland and pasture ground. The members of the village community were to cultivate the land according to manor routine. The waste was for common use (livestock raising up to certain number, collecting hay, and so on) Some arable land had to be kept as lord’s personal domain (known as demesne). Each villager had to provide labour service (three days a week) to the demesne. The system developed from the 6th century A.D. and its full-grown form appeared in the 12th century. In course of time, some villagers (usually the villagers with a virgate of 30 acres) could replace the labour rent with kind rent and thus they could become ‘free’ peasants. But even then they hardly had any freedom to ignore the custom-based obligations. In a feudal society, property right, as well as the usufruct5 on land, remained bifurcated. The lord at every tier had property right on his fief; he also exercised usufructuary right over a part of his fief, known as demesne. The land on which the peasants had customary rights generated two types of interests, namely usufruct and ownership interest. The usufruct was with the peasants and the ownership was with the immediate lord who earned rent out of this ownership right. Dispute, if any, with property rights was settled in lord’s court (curia). The court used to dispense with fief rights only. In settling the fief rights,
Land Acquisition Act and Social Justice
47
custom was supreme and best known by the tradition of those who practised it. Legal immunity was the fulcrum of the system; the lord was immune to the vassal and the vassal was immune to serf. Feudal privilege had been the key and this was highly discriminatory in nature. The manors also used to function according to custom. The cotters and also the other villeins6 enjoyed democracy, the essence of which was the obligation to attend manorial court where ‘custom of the manor and its working’ would be announced. The villagers were supposed to abide by them. Their right to live in a manor was conditioned by the obligation to abide by the custom-based rules of the manor. Thus during the feudal era, the right (and obligation) of a person was based on custom. Behind custom, there had been a concept of justice the propelling force of which was hierarchy-based rights and obligations. Exclusion was hardly practised because this was against the spirit of obligation of the lord to the vassals and of vassals to the serfs. The concept of feudal justice was replaced with an elaborate jurisprudence which the British gentry claimed to have borrowed from the Roman law of property that gives the right of exclusion, during the Enclosure Movement. Enclosure and the Emergence of the New Concept of Property Rights Enclosure first targeted the common waste on which the villagers had customary right. To trace the process, one should note that the Enclosure movement took place in England in two distinct phases. In the first phase, which started in the 12th century, the need for enclosing the commons came from the feudal lords who tried to usurp the productivity gain in agriculture by allowing the commons to be enclosed for developing pastoral land to meet the demand from a growing woollen industry. The new class that emerged in Phase one of enclosure consisted of a section of yeoman farmers, the merchants and the new entrepreneurs in wool industry. The economic reason had been that the enclosed land would fetch better rent. In terms of the theory of rent, the owner of the land can get a share of the rising productivity by charging a differential rent on intra-marginal land. The feudal lords had a share of the produce in the form of rent on the basis of (customary) ownership right on land; such rent is known as the absolute ground rent, to follow the
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Ricardian terminology. The absolute ground rent does not contain any share for the owner of the land on the productivity gain that a farmer can acquire by better farming. In the middle ages, the concept of productivity gain was not there until the peasantry introduced the innovative technique of cultivation under Three Field System and improved water management (mechanised wheel under wind mill technology). In fact the gain in productivity created the opportunity for the farmers to replace labour service with rent in kind. The feudal lords did get the message. The peasants were utilising the gain in productivity for buying their freedom from the landlords as labour service was being replaced with kind (and subsequently cash) rent. The feudal lord could hardly prevent it. A lord could not claim a share of productivity gain because their customary right was on the absolute ground rent only. Redistribution of holdings by expropriating the traditional farmers from the manor for getting the benefit of differential ground rent from the new tenants was not possible because the individual farmer had customary right over the parcel of land that he used to cultivate and eviction was not possible according to feudal canon. As the fresh demand for land came from the growing woollen industry, the feudal lords now had the opportunity to get a share of the differential ground rent. The method was that the commons, which had not been under the possession of any individual farmer, could be enclosed and leased out for sheep grazing. The losers had been the ordinary farmers including the copyholders in the manor. They were now denied the traditional right on the commons. Enclosure Phase one is thus the phase of introducing displacement of the peasants from the commons in English countryside. It violated the feudal custom that the villagers would enjoy the usufructuary right over commons. But then, eviction per se was not practised because that would grossly violate the feudal canon. The next phase of Enclosure, that is, Enclosure Phase two began roughly from the beginning of the 16th century when there was a general rise in productivity in British agriculture. By the end of the 16th century, villein age was over in most part of England. The feudal rights over land, most of which were customary were now being undermined; the traditional farmers were being evicted for fetching higher rent. Enhancing rent was possible not only on pastoral holdings. Even in the crop land there had been a tremendous rise in
Land Acquisition Act and Social Justice
49
agricultural productivity,7 a part of which could be realised by the landlords. The economics of production was that large-scale farming would be cost effective. Hence enclosing the croplands for largescale farming had become necessary. Large-scale farming would contribute to productivity gain which, inter alia, would fetch better rent (as well as better profit) from agricultural endeavour. The historical factor that contributed to the acceleration in the Enclosure movement on croplands was that the food grain prices had been increasing over time (which reached its peak during the Napoleonic war) that provided the basis for the demand of the abolition of Corn Law at the beginning of the 19th century. Enclosing the croplands would not have been possible without undermining the age old (feudal) usufructuary rights of the individual peasants over croplands. The British political and legal system took up this exercise as the old monarchy learned to live with the new social scenario that provided the basis for Cromwellian Revolution. By 1660 feudal tenure was abolished. Only the landlords had now the legal rights over land. The small copyholders were placed under arbitrary death duty so that they could be evicted from land. By 1677, the legal provision changed in such a way that the small free holders should be no less secure than the copyholders. The old nobility that could uphold the feudal canon of justice had now been disappearing. Following the Glorious Revolution that replaced James II, land worth of 5 million pound was confiscated and sold; 1.5 million pound was raised from fine on royalist who had to sell a considerable part of their estate to meet the obligation. Consequently, a new gentry class emerged in the countryside of Britain who would consider land as ‘capital’ for enhancing their asset base. The new gentry class consisting of the merchants, the government contractors, the yeoman farmers, the shareholders of East India Company and the holders of the public offices, had a new set of values that shaped the British (bourgeois) legal system, as reflected in the incidence of lawful eviction of the British small peasants.8 Enclosure and the Legal Process of New Britain In Enclosure phase one, enclosing the commons took place by means of individual acts of violence against the ordinary villagers who used to enjoy customary rights over the commons. There had been no
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Ratan Khasnabis
legal sanction but the lords hardly cared for any such sanction. The social approval being weak and the Church and the old feudal state being still under the medieval social ethos, the practice of enclosure was being denounced by the Church and the government at that time. In fact, legislation was drawn up against it. However, the tide of the elite opinion began to turn towards the support for enclosure, as the rate of enclosure increased in the 17th century. Individual acts of violence were no longer necessary. Following the Cromwellian Revolution, the political power was with the new elite which vested the legal rights over land to the (new) landlords. Getting legal sanction was not a problem now. Legal sanction came usually from a series of Parliamentary Acts addressing individual regions, which were given a common framework in the Enclosure Consolidation Act of 1801.9 This laid down a model of procedure for the enclosure of common lands in particular. In 1836, a second General Enclosure Act was passed. This was concerned with the open fields and it gave local farmers the right to appoint commissioners and to enclose land without direct reference to Parliament. In 1845, a third (and final) Enclosure Act was passed. This established a group of ‘specialist’ commissioners who would travel round to the different villages to supervise the enclosing of land. They then reported back to Parliament and one General Act of Enclosure was passed for all the villages inspected during the course of the year. Enclosure had been implemented at this stage by the legally appointed commissions. At a series of meetings called by the commissioners, landowners had to make a claim as to how much land they should be awarded under the enclosure. The commissioners then had to decide on the validity of each claim and come to a decision as to who was actually entitled to receive land in the award. When finally the land had been allocated, the surveyors drew up a new map of the village displaying the new enclosures, boundaries between each section of land and the location of new paths and roads. With the new enclosure map went the award, a list of all the landowners who were allocated land in the enclosed village. The Parliamentary Commissions were invariably of the same class and outlook as the major landholders; hence it was not surprising that the great landholders awarded themselves the best land and the most of it, thereby making England a classic land of great, well-kept estates with a small marginal peasantry and a large class of rural wage labourers. Those with only customary
Land Acquisition Act and Social Justice
51
claim to use the land fell by the wayside, as did those marginal cotters and squatters who had depended on use of the wastes for their bare survival as partly independent peasants. How does one explain these acts of enclosing the commons and the lands of the possession of small farmers by the British elite in the framework of the modern concept of justice? The expropriated peasantry received some compensation. But as G.D.H. Cole and Raymond Postgate observed, ‘their strict legal claims were generally met, but their equitable claims were almost wholly ignored’ (Cole and Postgate 1956: 122). The awards were mostly in favour of the wealthier class; the persons without documentary rights on land hardly received any compensation. The poor cotters did not find even alternative employment in the rural areas. They were driven to the newly growing cities where some of them found employment in factories. Many of these dispossessed peasants were driven to ‘work house’ where they would get state-funded food under ‘Poor Law’. In other words, a large section of the dispossessed peasants were denied equity-based justice. The British law did not compel the new gentry class to bear the full cost of displacement. Moreover, the expenditure in the form of cost of feeding the dispossessed poor peasants who did not receive compensation was shifted to the state. The state had to bear the cost in order to maintain the legitimacy of the system. As the incidence of eviction increased, the cost of feeding such people was increasing enormously and by 1830s the yearly average cost of maintaining the ‘work houses’ increased to 60 million pound (Morton 1974: 131). It appears that the private cost of enclosing the commons was rather low and the major part of the economic burden was shifted as social cost to the state by the British gentry.10 The process by which the grabbing of land was done in England is best described in Capital, volume 1 by Karl Marx. While analysing the process of primitive capital accumulation in Britain, he discussed extensively the Enclosure movement and summed up the process of justice and legality in the then Britain. As he observed, in the early phase of Enclosure, [T]he process was carried on by means of individual acts of violence against which legislation, for a 150 years, fought in vain. The advance made by the 18th century shows that the law itself now became the instrument by which people’s land is stolen. The parliamentary form of robbery is that of ‘means
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Ratan Khasnabis
for Enclosure of commons’; in other words, a decree by which the landowners grant themselves the people’s land as private property, decree of expropriation the people. (Marx 1976: 885, ch. 27)
Enclosure, Justice and Power The emerging concept of justice, as capitalism had been developing its sway over the British society had a few features. In the feudal era, the customary right of the peasants had not usually been violated if the hierarchy-based loyalty was maintained. Their usufructuary rights were never denied, although there did not exist elaborate jurisprudence to explain what is ‘usufructuary right’ and how this was to be protected. The capitalist order ignored this customary right. The reason had been quite material. The possibility of enjoying higher rent from ownership right cannot be explored unless the custom-based usufruct is replaced with a new one that would permit eviction of the subject peasantry. Since the custom did not allow it, initially this was executed by individual acts of violence against the unwilling peasants. The landlords were yet to translate it in the language of jurisprudence and the British state was yet to concede to the will of the landlords. Moral sanction was also not there11 for Enclosure movement. It took a long time to reset the jurisprudence so that this act of encroachment on the customary rights could get a legal sanction. The new jurisprudence redefined the property rights so that the peasants could be denied their customary rights on land. At the same time, the jurisprudence required the Enclosure to create some provision for compensation for the displaced peasants for making displacement legally possible. This part of the juridical provision was the contribution of Enlightenment-driven modernity. Compensation for the displaced (as and when it occurred) was never heard of in the feudal era. The new society, the capitalist society of ‘Enlightenment’ was now propagating a new concept of justice in which equity (fairness, impartiality) was supposed to be the guiding principle. Legal provisions, according to the new wisdom, must not be based on privileges, and they must not be discriminatory in nature. In the context of enclosure, the new legal provision, in the first place, admitted the need of eviction (because the reality of the demand of capitalist agriculture had to be recognised) by redefining the property rights so that eviction would be legally possible. At the same time, it incorporated
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53
certain provisions that might reflect the wisdom of the Enlightenmentdriven concept of justice that upholds the principle of equity. The British law thus legalised the forced eviction of the peasants and at the same time it created a provision for compensation (because the principle of equity demands that he should be compensated for the loss of his usufructuary rights on land) for the displaced. The wisdom of the ruling class that eviction must be allowed with a provision for compensation was translated in the language of jurisprudence in the Enclosure Act(s) of Britain. But then, law is essentially the epiphenomenal part of the superstructure that reflects, in the main, the need and interest of the ruling class—the class that dominates over the economy, which is why it cannot be impartial or fair to every social class. England in the era of Enlightenment was no exception. The equity between the rulers and the ruled could hardly be honoured in that society, as it happens to be so in every society in which domination of one class over the other exists. Enclosure Acts had therefore been conservative in accommodating the true spirit of usufructuary rights of the peasants, as they had traditionally been enjoying. In the Enclosure Acts, the customary rights of the peasants were not recognised as usufructuary rights. Only such peasants (mostly a section of the yeomanry) who had documentary evidence of such rights were recognised to be entitled under Enclosure Act(s) for receiving compensation. The principle of equity was flouted in this way. The immediate reason was to allow a section of the ruling class to acquire the property of the weaker section at a low private cost. Law itself was encouraging the land grab. The enclosure through Enclosure Act(s) was thus ‘parliamentary form of robbery’ as rightly pointed out by Karl Marx. This was done when the philosophy of enlightenment was ruling to roosts in Britain and principle of equity was recognised as the basis of new jurisprudence. The history of Enclosure movement also reveals that the burden of enclosure-driven displacement was also shifted, to some extent, to the state which had to create enhanced provision12 for feeding the displaced. In the language of economics, this part of the burden of displacement is the economic expression of social cost. The state had to shoulder this burden in order to keep the conflict between the ruler and the ruled within a tolerable limit—so that the legitimacy of the state is not placed under threat and the abject violation of the principle of equity is not questioned. Society across classes would thereby
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accept the rule of law and the social tension would pacify in course of time—a phenomenon which indeed took place in Britain during the 19th century. Principle of equity demands that the private cost and social cost taken together should meet the full value of compensation. This was hardly honoured in England during the Enclosure movement. As we shall see, the equity-based justice is never practised even in the contemporary world—the world that we live in now.
DISPLACEMENT
IN
CONTEMPORARY WORLD
Development Induced Displacement The Enclosure movement is no more there in the contemporary world. However, the parliamentary form of robbery of land still exists and this is mostly associated with ‘development induced displacement’. Development induced displacement is a new phenomenon. It implies the forcing of communities and individuals out of their homes, often also their agriculture lands, for the purposes of economic development. It is a form of forced migration. Historically, development induced displacement was associated with the construction of dams for hydroelectric power and irrigation purposes, but such displacement also took place due to many other activities, such as mining. In recent years, one social issue that has caused intense debate among the academics is the involuntary displacement of people from their productive assets (particularly cultivable land) due to industrial or infrastructural projects. Such displacement is usually executed by a legal action in the form of ‘acquisition of land’ by the state ‘in the public interest’. Though the process of acquisition of land is not new, the intensity of its adverse effect was not comprehended in the past as it is today in the Third World countries. Following economic liberalisation, growing needs of infrastructure have threatened traditional sources of sustenance of the people. More and more agricultural lands are being depleted for setting up industrial or infrastructural projects. According to the World Bank Environment Department (WBED), roughly about 10 million people are displaced each year all over the globe due to dam construction, urban development, industrial expansion or infrastructural construction. While development induced
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displacement occurs throughout the Third World, two countries in particular—China and India—are responsible for a large part of such displacement. The international community has long recognised that the issue of forced evictions is a serious one.13 In 1976, The United Nations Conference on Human Settlements resolved that‘undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made’. In 1988, The UN General Assembly in its resolution 43/181, mentioned that the ‘fundamental obligation [of Governments is] to protect and improve houses and neighbourhoods, rather than damage or destroy them. Again, Agenda 21 stated that ‘people should be protected by law against unfair eviction from their homes or land’. In the Habitat Agenda, governments committed themselves to ‘protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, alternative suitable solutions are provided’. The Commission on Human Rights has also declared that ‘forced evictions are a gross violation of human rights’. International Covenant on Human Rights has also suggested that there should be provisions of ‘legal remedies to eviction and provision where possible, of legal aid to persons who are in need of it to seek redress from the courts’.14 In spite of the UN Declarations on Universal Human Rights and the provisions for compensation to meet the resettlement cost of displaced or evicted families, the evidences as furnished by various field studies do indicate that justice was denied to a great extent with respect to such people. The problem, as it appears from the international experience, is basically rooted in the concept of justice that shapes the pattern of compensation for the displaced persons in various countries. The concept of justice for the development-induced displaced persons needs to be discussed at length in order to comprehend the basic problem that the society faces while deciding upon the principle of compensation. We will discuss this issue now. Compensation and the Concept of Equity The concept of equity-based justice suggests that every displacement should have a collateral provision for compensation that meets the
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full cost of resettlement. That equity should be the core consideration is the outcome of entitlement-led modernity, which replaced the medieval (feudal) cannon that used to legitimise the judicial discrimination favouring the privileged few. The problem, however, is that equity-based justice can hardly be achieved even after 300 years of the Enlightenment movement. In case of development induced displacement in the contemporary era of globalisation, the story is essentially the same as it had been during the Enclosure movement in Britain. Only, the difference is that some new dimensions have been added. Let us see why this is so. How are the development-related economic projects to be evaluated from the principle of equity-based justice? Admittedly, equity is not equality. A development project that aims at creating an egalitarian society might be a desirable one on several grounds including one of reducing social inequality. But a development project would definitely be unjust according to modernity, if it distorts the existing assets in society without equivalent compensation. This would be unjust according to entitlement-led modernity because it violates the principle of equity; it does not remain impartial to everybody, it inflicts unfair treatment to such members of the society whose assets are being redistributed in favour of others without adequate compensation. How can the equity-based transaction of assets be realised in a society? Apparently, no intervention by any other agency except market is necessary for this transaction. Economic theory suggests that market ensures exchange of equivalents and therefore market is the institution that ensures this equity-based justice in economic transactions. The principle of equity would not be undermined if transactions take place through the institution of market. Market distortion or the intervention of non-market forces in mitigating exchange might undermine the principle of equity because the exchange in that case might not be the exchange of equivalents. Theoretically, therefore, the state or any other non-market agency should not be allowed to act as arbitrator in land (asset) transfer in development induced displacement process. In practice, however, there exists a strong case for the state to serve as a mediator, often invested with legal power to do so, because exchange of equivalents is not ensured by market due to market imperfection; even if the market imperfections are removed, full price of an asset might not be realised
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in the market if transaction costs are present. The act of acquisition of land (asset) by the state is, therefore, fully justified on the basis of entitlement-led principle of equity if the state delivers the justice properly. The problem, however, is that if the state fails to remain impartial, equity is never achieved. The requirement of asset transfer for development purposes might then face the problem of maintaining equity-based justice. As the market fails, so does the state. Both the market and the state fail to uphold the principle of equity. The violation of the principle of equity might also come from the process of development itself. Usually, a development project is viewed from the utilitarian point of view (‘greater good for greater number’). But one may argue, as John Rawls did, that the utilitarian thinking is inherently tolerant of social injustice because ‘greater good’ here is not for all but for ‘greater number’. A development project that benefits a part of the community and excludes others should not be considered as just because it violates the principle of equity. Benefits might be unequally distributed but a development project must create some benefit for all. If it fails to do so it would inflict injustice to a section of the community. In other words, development should aim at ‘greater good for all’ (Rawls 1971).15 Considered in this framework, acquisition of land (asset) for development projects can be justified—and this is where the contemporary wisdom finds a consensus—if two conditions are satisfied. In the first place, it must not exclude anyone from a community from the development process (no ‘oustee’); everybody has to be benefited from the outcome of the development project,16 even if the distribution of benefits is not egalitarian. Second, the asset transfer for the project must adhere to the principle of equity. These two conditions are hardly fulfilled in development exercises—particularly, the exercises that we experience in the present era of globalisation. Development process is often found to exclude the weaker section of the society. Equity in asset transfer is also not honoured. Market which is supposed to carry out equity base transactions, fails in many cases. The state, which is accountable to the society, has therefore emerged as an institution to carry out this exercise. We shall argue that equity-based justice in asset transfer is hardly practised by the modern state. In essence, the scenario is the same as it had been during the Enclosure movement.
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Valuing Equity-based Compensation That the displaced must get compensation was recognised by the Enlightenment-driven jurisprudence. By now, this has become a universally accepted juridical norm. In the contemporary world, every country has a legal provision for compensation. Even in China, where property right of the individual peasant is not recognised by the state, there is a provision for compensation in Land Administration Law (1998) of the PRC.17 The problem, however, is with the amount of compensation that the displaced would receive. Justice based on equity demands that the compensation should meet the full value of the asset that the displaced are dispossessed of. In reality, this is hardly done. The immediate reason is that even with the best of intentions, it is not possible to evaluate the full value of the asset because of certain practical limitations of the compensation principle. The basic point, as Lionel Robbins (1935) pointed out in his Nature and Significance of Economic Science, is that it involves interpersonal comparison of gains and losses which is unscientific. The market should take care of the problem by ensuring exchange of equivalents but, as we have already observed, the market might fail to do so. The state as an arbitrator is often entrusted to take care of this problem. Since the interpersonal comparisons of gains and losses cannot be done, the compensation package is often decided arbitrarily. It is often overlooked that the function of compensation in developmental projects is not the same as the function of investment made in new asset; its function is only damage substitution—compensation does not provide the oustees anything more than simple repayment, which is nothing above what they had before. Equity-based justice reflected in the legal provisions should adhere to this basic point. More often than not such a principle is ignored. The arbitrariness works against the oustees. Compensation fails to substitute the damage the oustees are to bear. The legal provision that the state creates for compensating the damage does not take into consideration all the dimensions of damage inflicted upon the displaced. As land is acquired, the most tangible damage inflicted upon the displaced is the loss of income and wealth that the oustees used to enjoy. While creating the legal provision of compensation, the fact that is often overlooked is that losses of this sort figure not only in terms of landlessness. It also creates joblessness,
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homelessness, marginalisation (families losing economic power) and loss of access to common property. The equity-based legal provision should take care of all these losses. In reality, the compensation is calculated on the basis of the property rights alone and thus, a substantive part of tangible damage remains uncompensated. Again, to follow the Rawlsian perspective, the displaced are also denied liberty and opportunity with respect to the assets that they used to control. Bases of self-respect are also seriously damaged due to the loss of the group’s cultural space and identity. The dismantling of the community’s social organisation and the dispersal of formal and informal networks in the people’s lives also have a cost. The equity-based concept of justice should take care of these costs. The state, however, creates legal provision only for the damage of tangible asset in the form of property. Consequently, the equity-based concept of compensation remains unrealised even in the contemporary world. Again, while creating legal provision for the damage of tangible asset in the form of property, the state fails to maintain class neutrality. As in England during the enactment of Enclosure Act(s), the legal provisions for compensation in the contemporary world reflect, in the main, the interest of dominant social class. Primarily, the relevant provisions of the law reflect the need and interest of this class only. If feudal canon is criticised on the ground that it favoured a privileged few, modern jurisprudence is hardly any different. We shall elaborate this point in the context of the evolution of the concept of justice for the displaced as reflected in the successive Land Acquisition Acts in India with particular reference to the Land Acquisition Acts in Bengal.
LAND ACQUISITION ACTS
IN INDIA
Ownership and Usufruct on Land In pre-British India, the property rights on land remained bifurcated, even though the typical West European form of feudalism had been absent in India. Typically, the ownership right was with the sovereign (king, badsah) who would either offer the usufruct to the subject peasantry against a rent (revenue),18 or the sovereign would function
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through intermediaries who would exercise ownership right on behalf of the sovereign.19 The intermediaries had a share in the ownership right on which they used to get a share of rent (revenue). With spatial difference, this was similar to the interest that the vassals used to have in feudal (western) Europe. The actual functioning of the system was more complex than it appears to be from this description because the system used to function under a complex power structure with wide variations in norms and nuances. The economic essence, however, was that land used to function as a source of absolute ground rent. The juridical basis of the power to earn absolute ground rent was the ownership right on land. Such rights were often offered in a written contract (Sanad). Sometimes such rights were enjoyed on the basis of convention and custom. The usufruct was usually with the peasants. In the language of the modern jurisprudence, they were entitled to ‘enjoy the advantage and profits of the property of another without altering or damaging the substance’. Again, the actual functioning of the usufructuary right was quite complex because the jurisprudence and its enforcement was based on the pre-modern hierarchy based loyalty that contained the provision of discrimination. However, the rulers used to honour the customary right of the subject peasantry, as it had been in medieval Europe. As the British confronted this system, usufruct and ownership right had already become complex because the usufruct interest had by now developed over a part of the land under ownership at various tiers of intermediaries. For examples, the zamindars were now keeping a part of land as khas for their own use. Land under usufruct was also being leased out by ryots (the original holders of usufructuary rights) to the under-ryots, that is, the ryots were now developing rent seeking interest on the land that was under their usufruct. The relation between the zamindars and the sovereign, between the ryot and the zamindar and that between the ryots and the under-ryots had also become complex. For the British, it took a lot of time to establish a rule of property, a rule that might be spelt out in the language of modern jurisprudence. Bengal in particular had been the major field of experiment for the British rulers in this respect. In Bengal, after the initial years of confusion, the issue of fixing the state’s share on the absolute ground rent (revenue) was settled by the British by enforcing the rule of Permanent Settlement (1793). The immediate reason for such a settlement was to ensure fixed and assured
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revenue from land so that the expenses of the state (mainly the expenses on military) could be met without additional efforts. In doing so, the British did not consider the fact that the zamindars under the new (permanent) settlement were not under any legal compulsion to collect the rent at the fixed rate from the ryots, neither was there any compulsion to offer usufruct to a peasant permanently. Since the new law was silent on the usufructuary right of the peasantry,20 eviction was possible and that could be used as instrument for increasing the share of zamindar’s rent in the total produce. The colonial rulers were not bothered. Their only interest at that time was to safeguard their own interest in all possible contingencies. To them, Permanent Settlement was a contract only between the state and the zamindar for getting assured revenue from land. The zamindars had had to pay as per instalment the annual rent fixed thereupon by the state. Since the British was the dominant partner, they could dictate the terms which included a pledge from the zamindars to the effect that they shall be ‘liable to be arrested and imprisoned’ in case they default in paying the revenue of the government, and that ‘neither we ourselves nor our heirs will be able to impugn these terms’ (Calcutta Review 1864: 79). The contract was translated in the language of modern jurisprudence and thereby the British established their first rule of property on land in Bengal Presidency. But this jurisprudence was pertaining to a part of the ownership right—the part that dealt with the sovereign and a class of intermediaries between the owners of land and the persons having usufruct on land. The intermediaries that came under the ambit of Permanent Settlement were the intermediaries that the British recognised as zamindars. There were of course other intermediaries that procured ownership right against a rent from the state-recognised zamindars or from the zamindars at the lower tiers. They had to negotiate with the zamindars at immediately higher tiers for fixing the rent on their zamindari.21 This system of having intermediaries at lower tier, which has a vague similarity with the vassalage system of feudal Europe, percolated down the line and within 50 years of Permanent Settlement, buying and selling of zamindari at various tiers became a common practise. The number of tiers went on increasing and at one time, in Barishal, a district of undivided Bengal, the number of such intermediary tiers was found to be as high as 23. The first rule of property that the British established in Bengal, thus, made the system more complex. This was overlooked or ignored because the
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predominant partner, that is, the colonial state, did not find it detrimental to its interest—the interest to earn a fixed and assured return (revenue) from the land.22 Persons having usufruct on land, that is, the peasants, were facing further difficulty in the new arrangement. During the enactment of the Permanent Settlement, their interest was not protected adequately. As the system of sub-leasing the land developed and the new intermediaries were exerting the ownership right, the peasants were put under pressure to meet the enhanced share of rent on the produce from land. Since the state was reluctant to safeguard their interest, the peasants began to retaliate in the language of defiance. Enforcing the order (discipline) by coercion led to violence and the British state, which did not feel any need to review the usufructuary right seriously during the enactment of the Permanent Settlement, was now forced to frame a rule for the usufruct in Bengal Presidency. The Tenancy Act of 1856 and the revision of it in 1885 had been the legal expression of the will of the British state as regards the usufruct on land in Bengal Presidency. It might be interesting to note that these acts also tried to protect the interest of the dominant social classes at the cost of the weaker classes. According to the Bengal Tenancy Act (1885), the more substantive ryots, recognised as tenure holders under this Act, were not subject to ejection or enhancement of rent. Their customary right was recognised as heritable and transferable. Similar privileges were given to the ryots under fixed rent tenancy. Some privileges were there also for the ‘occupancy ryots’ and ‘settled ryots’.23 The other ryots including the under-ryots and sharecroppers (bargadar) were ignored. In fact, they were to bear burden of enhanced land rent that the landlords and even the substantive ryots could now levy with the legal protection from the state under the Bengal Tenancy Act (1885). Ejection also remained legally possible for these tenants. The state, as it appears, negotiated with the more powerful section of the tenants. It ignored the weaker tenants. They remained marginalised till the end of the British Raj. In reality, they were the real cultivators who should have to have the legally approved usufruct, that is, ‘the right to enjoy and profits from the property of another without altering and damaging the substance’ on the land they used to cultivate. Given these twin rules—the rule of property and the rule of usufruct, which were adverse to the weaker sections of the rural society—we shall now discuss the Land Acquisition Acts of the British Raj.
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Land Acquisition Acts Under Colonial Rule Acquiring land for public purpose causes an infringement on the property right or usufructuary right of the individuals. Such an act of infringement is unjust according to the philosophy of modernity that upholds the rights of the individual. With a rule of property that safeguards the interest of the individual property holder or land24 it was only necessary that the state would prepare some legal provision for reversion of an estate (property) to the grantor, that is, the state, in case the state needs that property for some purpose. If the property rights on land are considered as absolute, acquisition of land by the state might be viewed as unjust according to the modern concept of justice. This, however, was not to be so, according to the colonial rule of property because every right on land was subject to the state’s ownership on landed property. That the state did have such a right was made to be felt by keeping the provision of collecting land revenue from the estates. Reversion of a landed property to the state was therefore justifiable following the equity-based concept of justice. The first such legal provision was made in Bengal Presidency in 1824. By Regulation 1, 1824 of Bengal Code power was given to the state ‘for taking any land in the territories subject to the Presidency of Fort William in Bengal, which is needed for any public purpose, a according to forms therein prescribed’. The need for reversion to the grantor was not strong at that time because the demand for land at that time was weak—land for railways, irrigation or factories was yet to be required. Since the urgency was not there, Regulation 1, 1824 did not include any clause for ‘immediate possession’. On compensation, it was just honouring the contract of Permanent Settlement where by the zamindars were to bear a reduced land revenue obligation to the state in case the land under reversion had been a source of land revenue for them. Usufruct on land was not even mentioned in that Regulation. Act XLII of 1850 for Railways, Road, Canal and other Public Works passed by the Governor General of India was the second legal measure for land acquisition promulgated by the British. Subsequent revisions were done in 1857 (Act VI), 1861 (Act II), 1863 (Act XXII) and in 1870 (Act X). The 1857 Act was exclusively for acquisition of land for public purposes and 1861 Act was a revision of 1857 Act. The 1863 Act was ‘to provide for taking land for works of public utility
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to be constructed by private persons or companies, and for regulating the construction and use of works on land so taken’. All these were repealed in 1870 when a comprehensive Act was passed. After 24 years of promulgation of this Act, the colonial government passed a new Act in 1894 in the preamble of which it was stated that the new Act was necessary for meeting the problem of acquisition as also ‘for determining the compensation to be made on account of such acquisition’. The 1894 Act was the most comprehensive Act and the Act was retained till the end of the British Raj. Even after independence, the Indian state did not feel that this Act should be repealed. It was retained as such with necessary changes in the rules by issuing government order or introducing some minor amendments to the Act as and when necessary, in various provinces of India including West Bengal (and Bangladesh). That acquisition is inherently coercive and the state should be adequately empowered to discipline the defying citizens by legal means in case it becomes necessary, was first recognised in the 1850 Act. Section IV of this Act vested power to the ‘Officer so appointed by the Government’ to ‘take immediate possession thereof on behalf of the Government’. A provision for ‘consideration to be paid,’ that is, compensation was there in the Act and the consideration sum was to be negotiated. If the negotiation failed, the officer, according to this Act would be empowered to take immediate possession ‘leaving the amount and distribution of the consideration to be paid there of ’. The Act also vested power to the magistrate ‘to enforce the surrender of the land’ as and when the officer informs that such intervention was necessary. Anybody found to obstruct the process wilfully, ‘shall be liable to be imprisoned for any term not exceeding six months and also to fine not exceeding two hundred rupees’, according to Section IV of this Act. This particular provision of imprisonment and fine was retained in every subsequent Act including 1894 Act where the term of imprisonment was reduced to one month and the amount of fine was reduced to rupees fifty only. It appears that the necessity of enforcement by coercion was declining overtime as the people realised the legal implication of acquisition and the state also learned the power of rule by consent. It tried to build up consent by various means, including the means of fixing compensation sum to an amount that might be acceptable to the dispossessed proprietor. We will discuss the issue of compensation presently. What we will highlight here is the
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fact that the colonial state had to take necessary steps to educate the people on the legally approved power of the state and the implication of the new system to the citizen. The citizens must know that the acquisition is done in an orderly manner. The order is maintained by following the rule of law. The protestor dispute, if any, has also to be recorded in the language of law. The citizen, whosoever it may be, shall have to pay the penalty if he fails to speak in the language of the new order. This, in fact, is the contribution of European modernity to the society that used to be ruled by age-old convention which allowed discrimination and discretion. Compensation Equity-based jurisprudence would advocate a compensation for the acquisition of land. This was never neglected by the colonial rulers. Even in the 1850 Act, the acquisition was supposed to be done by awarding a consideration sum. In every subsequent Act, the provision for compensation was always mentioned. In fact, the 1894 Act specifically mentions that the new Act was necessary for determining the amount of compensation along with the necessity of acquisition. The problem, however, was with the determination of compensation sum. As we have already pointed out compensation, strictly speaking is no favour. It is just damage-substitution. The equity-based jurisprudence should therefore see to it that the principle of equity is honoured while settling the compensation sum. How did the colonial state consider this issue? As the Land Acquisition Acts indicate, the damage-substitution principle was followed in settling the compensation, just as the enlightenment-led modernity demands. But as in case of British Enclosure, here also the full cost of damage was never taken in to consideration. We shall elaborate this point. The 1850 Act was not very explicit on the amount of compensation or the persons to be compensated. Section III and Section IV of the Act, however, retain provisions for compensation. It was not explicit, as we have already mentioned on the compensation sum. It only mentions that the sum was to be decided by ‘private bargain’. Going through the Act, it appears that the colonial rulers were yet to work out a compensation principle so that a compensation sum
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could be suggested. Reasons might be many, including the fact that alienation of land by sale or purchase was yet to develop here as a regular phenomenon. The 1857 Act was more explicit on the compensation principle. Section V of this Act states: … on a fixed date the Collector or other Officer shall proceed to enquire summarily in to the value of land and the amount of compensation to be awarded; and if he and all the persons interested who have attended in pursuance of the notice agree as to the amount of compensation to be allowed, shall make an award of the same.
A case may be referred to arbitrator in case the ‘persons interested’ do not agree. However, the awards of the arbitrator(s) would be supreme. The Act thus incorporated a provision which was not there in the 1850 Act—the awards of the officer-in-charge of Acquisition might be contested now. But this also was to be done in an orderly manner, by entering in to a legal process and the aggrieved person(s) shall have to accept the awards so determined. The 1870 Act provided a more elaborate procedure for settling the dispute. Under Section 11 of this Act, the magistrate would proceed to enquire summarily into the value of land and determine the amount of compensation, as was mentioned in Section V of the 1857 Act. In case the affected party disagrees, the dispute would now be referred to the civil court (Section 15) and not to an agreed arbitrator. However, the magistrate might take possession of the land immediately without waiting for the awards of the civil court. A lengthy legal process would start. The judge in the civil court would appoint an assessor who would submit a report. The hearing would take place subsequently and the awards would be announced. In order to minimise the scope of discrimination Section 24 of this Act provides guidelines for compensation. The guidelines suggest: … in determining the amount of compensation … the Judge and the assessor shall take in to consideration first the market value at the time of awarding compensation of such land; secondly, the damage (if any) sustained by the person interested … by reason of severing such land from his other land; thirdly, the damage (if any) sustained by person interested … by the reason of acquisition injuriously affecting his other property, or his earnings, etc. and fourthly, if, in consequence of the acquisition, he is compelled to change his residence, the reasonable expenses if any incidental to such changes.
Such provisions were retained in Section 23 of 1894 Act, with two added provisions, one of which was the compensation for the damage
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resulting from ‘diminution of the profits of land between time of publication of the declaration and the time of the collector’s taking possession of the land.’ In effect, Section 23 of 1894 Act was taken as the guideline for compensation that the Land Acquisition branches of the Land and Land Revenue Departments were instructed to follow while awarding the compensation for acquiring a land under magisterial order. In post colonial period also, the provisions under Section 23 of 1894 Act were adopted as the basic guidelines for settling the compensation sum. Some incentives were added, compensation for standing crops, trees, and so on, was taken into consideration as and when the state found it necessary to do so. For example, a provision for Consent Awards was made in the relevant West Bengal Act (Sub-section [2] of Section 11). For a smooth implementation of the provisions of compensation, the state prepared a set of rules and guidelines in the colonial era. Such rules and guidelines are still followed by the Land Acquisition branch (under Land and Land Reforms Department) of the Government of West Bengal. There exists now an acquisition manual, which the department would follow in awarding the compensation. The rate of land value according to the type of land is also contained in this manual. According to the West Bengal manual, there are seven types of land in rural West Bengal; the rates of compensation vary according to the types of land. There is a provision for considering the value addition on the ground of such lands having locational advantage due to direct connectivity and accessibility with national or state highways.25 The basic spirit, however, remains unchanged. The state as the grantor of every right on land has the authority to revert it back to its own self, in case the state needs the property for ‘public purpose’ and the legality of acquiring the land by the state is therefore consistent with the concept of justice. Justice, however, makes it also necessary to pay compensation as the reversion of right takes place. The Acts adhere to this principle as well. The compensation package had initially been determined arbitrarily by the officer-in-charge of acquisition. Since this leaves the possibility of interpersonal discrimination which is against the modern principle of justice, the state gradually developed a mechanism by which the discrimination in awards might be avoided. The dispute settlement mechanism and the guidelines for compensation were developed by the colonial rulers with this purpose. The legally approved method of valuation as elaborated in 1870 Act and 1894 Act adds another dimension to it. These indicate that the state was also recognizing that land
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market was developing in the country and the signals that one receives from the land market as regards the asset price were also to be taken into consideration for developing a fair rule of business in settling the compensation amount in monetary terms. In fact, it became part of the acquisition rules framed by the state following the 1894 Act. Market price was also taken into consideration by the post colonial state while setting the basic price of a land during acquisition. For example, in West Bengal, the compensation awards are decided basically by the price of a piece of land in the market. In order to remove ambiguity, average of land prices in that region as recorded by the Land Registration Office is calculated and this is offered as the basic price.26 The spirit behind this arrangement is that equity should be maintained in asset transfer and since market ensured it the signals from market are honoured in settling the compensation sum. In order to ensure that acquisition looks less coercive, further incentives are added to basic price as solatium and the damages, if any, on the property that might have occurred due to acquisition (loss of standing crop, tree, and so on) are compensated. Entitlement to Compensation Who would be entitled to compensation? In the Act of 1850, there is no explicit clause as regards entitlement to compensation. In Clause III, there is a provision for ‘allowing compensation to the owners and occupiers of land’. But this refers to the damage done by the officer in the process of acquiring the land. It appears that the complexities of rights over land had not been anticipated properly while promulgating the law. The 1857 Act is more explicit on the issue of entitlement. It refers to ‘interested persons’ among which the award would be apportioned. Clause VII of the Act indicates who should be considered as ‘interested persons’. The clause reads the person as one who is ‘deemed by the Collector or other officers to be in possession as owner or as recipient of rents as being entitled to’, as the legally acceptable claimant of compensation. There are two very important points to be noted. First, the compensation would be for proprietary rights only and not for usufruct. Second, the law admits that there is complexity in the ownership right in rural Bengal. There might be permanent tenants (recognised in 1885 Tenancy Act as tenure holder
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or as occupancy ryots whose rights are heritable and alienable) who would be ‘owners’ or rent (not revenue) receivers from under-ryots. They would have a right on compensation sum. Since the land rights in Bengal were complex and the rights of big ryots remained ill-defined even after the promulgation of 1856 Act, the urgency of acquiring land for railways and irrigation made it necessary to evade this issue by vesting the power on the ‘Collector’ or other officers to settle the dispute as regards who would be compensated. The Act therefore makes a provision for paying the compensation to the person who was ‘deemed by the Collector or the Officer to be in possession as owner of the land’. The 1870 Act and 1894 Act identified claimants of compensation on the land to be acquired as ‘person interested’. Both the Acts state that ‘the expression “person interested” includes all the persons claiming an interest in compensation to be made on account of the acquisition of land under this Act’. The 1894 Act adds that ‘a person shall be deemed to be interested in land if he is interested in an easement affecting the land’. Easement is a right that one may have on another’s land. The legal implication is that a piece of land might be source of multiple interests; ownership is not the only interest. This is further expounded in Section 10 of 1870 Act (10[1] of 1894 Act) where ‘interest’ is defined as interest as proprietor (co- and sub-proprietor included), mortgage, tenant or otherwise who would be receiving rent and profit. The apportionment of awards among the persons interested was primarily left to the persons themselves which indicates that the state would not enter into the issue unless there was a dispute. This was so because of the fact that, as we have mentioned earlier, property rights remained ill-defined because of the complex interpenetration of usufruct and ownership. The scenario was not as simple as it had been in Britain during the Enclosure movement. In case of dispute as regards apportionment, the matter was to be referred to the civil court where the sitting judge was empowered to ‘decide alone’ (Clause 39, 1870 Act) and the matter might be referred to High Court if necessary. By 1894, the Bengal Tenancy Act (1885) had already come into effect. The section of the tenants who had heritable and alienable rights on land had therefore been identified by the legal authority. Accordingly, the 1894 Act made the term ‘person interested’ more specific. The right on which compensation can be claimed must be ‘alienable right’, that is, the right that may be transferred to others.
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This is exactly what property rights imply. By 1894 it became transparent that the compensation would be awarded only on the basis of property rights. Evidences of having such rights must be presented before the court of law in the form of a document. In post colonial India the same spirit is upheld in every Land Acquisition Act and no local (provincial) government can change this as because the right to receive compensation on the basis of property rights has a constitutional sanction. Article 31A of the Constitution states: … it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or any structure standing thereupon unless the law relating to the acquisition with payment of compensation at a rate which shall not be less than the market value thereof is paid.
If the registered bargadars are offered some compensation, this would have no relation with the compensation package that the holders of the property rights would receive. Their compensation package cannot be apportioned to meet the payment to the registered bargadars. In sum, the equity-based justice for the dispossessed was not adhered to in colonial India. The scenario is no better in independent India. The norms and nuances as regards payments of compensation for the displaced remain basically unchanged since the days of Enclosure movement.
NOTES 1. As economists like Michael Kalecki have observed, the share of wage in the output of non-agricultural sector would increase as the wage goods become dearer, because the wage rate shall have to be increased for compensating the higher (real) prices of wage goods which are now dearer. As the share of wage increases, the share of profit and in its turn, the rate of investment would decline. As the rate of investment declines, the growth rate of Gross Domestic Product would also decline. The argument holds good even in an open economy where the competing economies would reduce the share of ‘low value’ agricultural goods in its basket of commodities in order to ensure dynamic gains from trade. 2. The state power is utilised for minimising the transaction cost. Such intervention becomes necessary when the market of property rights is inadequately developed. As scholars like Ronald Cose pointed out, if the market of property rights is adequately developed and the transaction cost is absent, free buying and
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3.
4.
5. 6.
7.
8.
9.
10.
11. 12.
13.
71
selling of property will lead to efficient allocation of assets. The intervention by state (or any non-market agent) will not be necessary in that case. In India Article 31A of the Constitution (inserted by Constitution First Amendment Act 1951, and the Fourth Amendment Act 1955) protects the rights of citizens in receiving compensation and states that any acquisition ‘shall be deemed to be void’ if compensation is not paid. In India, ‘the expression “rights” in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure holder [ryot, under-ryot] or other intermediary and any rights or privileges in respect of land revenue’ (Article 31 A[2]B, Constitution of India). Usufructuary right is the right to use and enjoy the advantage and profits of the property of another without altering or damaging the substance. A villager (known as villein) used to hold a yard land or virgate of 30 acres (or its half) distributed in scattered acre-strips in two or three open fields in the manor. In course of time villein with smaller strips of land also emerged. They were known as cotters. The productivity gain in croplands was possible due to changes in technology. Oxen were replacing horses as draft animals. Better drainage system, hedging and ditching contributed to better crop management; more intensive cultivation was now possible. As the Enclosure movement in Phase two expropriated a section of the peasantry whose croplands had been enclosed (with or without compensation), there emerged a class of agricultural labourers who would seek wage employment in farmland. Their ultimate destination was the newly growing cities where they would seek employment in factories and other enterprises. Enclosure took place in many different ways but these can be classified into two broad categories: formal and informal. Formal enclosures include both Parliamentary enclosures, those which derived their authority from either a Private Act of Parliament or from one of the General Enclosure Acts. In 1801, the first General Enclosure Act was passed. One should add that in order to reduce the social cost, the British gentry by utilising its hold over the Parliament brought a change in the ‘Poor Law’. This was done by appointing a Commission which strongly recommended that the cost of maintaining the ‘work houses’ should be reduced further by cutting the budget for food and lodging of the displaced poor. The Commission also advised that the poor should not be allowed to raise a family in the ‘work house’; the couple should be forced to live in separate ‘work houses’. As we have already pointed out, the Church used to denounce enclosure in the 16th and early 17th century. By the middle of the 18th century the cost of supporting the poor under Poor Law was about 700,000 pounds a year. The budget increased to about 2 million pounds in 1790 and in 1800, it escalated to 8 million pounds. After that the yearly budget stabilized at about 6 million pounds (Morton 1974: 341). Under international human rights law, the practice of forced evictions is widely considered to ‘constitute a gross violation of human rights, in particular the right to adequate housing’.
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Ratan Khasnabis ... the right to adequate housing [is] a basic human right ... people should be protected by law against unfair eviction from their homes or land. (Agenda 21, Para. 7.6 and 7.9[b]).
14.
15.
16.
17. 18. 19.
20. 21.
22.
23.
All stages of the eviction process have identifiable human rights implications. The right to adequate housing, which is widely recognised under international human rights law, includes the right to be protected from forced eviction. This right has been expressed in various formulations in numerous human rights instruments, most notably the Universal Declaration of Human Rights (Art. 25, Para. 1) and the International Covenant on Economic, Social and Cultural Rights (Art. 11, Para. 1). However, although these statements are important, they leave open one of the most critical issues, namely that of determining the circumstances under which evictions are permissible and of spelling out the types of protection required to ensure the right to live with dignity. John Rawls does not advocate an egalitarian distribution of benefits. To him, any social act or action would be considered as unfair if everyone is not made better off (not equally better off) than they would have been otherwise. Rawlsian concept of justice is that ‘all social values—liberty and opportunity, income and wealth, and the basis of self respect—are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage’ [not of equal advantage- R.K.] (Rawls 1971: 62). In fact, this is the spirit of UN Declaration of the Right to Development (1968) which calls for ‘national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting there from’. See Article 2, Article 13, Article 31 and Article 49 of the Act. In the terminology of classical political economy, this was Absolute Ground Rent. He himself could function as sovereign as the king or badsah became weak. The authority of the sovereign had to be established there, more often by exercising (superior) military power. Except a vague promise that they ‘shall not in any way oppress the ryots, or proceed against them illegally’ (Calcutta Review 1864: 53). These had various local names like pattanider, talukdar, darpattanider, and so on. Essentially, they used to enjoy the ownership right over the estate at various tiers of the system. With declining importance of land revenue in the state budget, the interest of the colonial rulers on Permanent Settlement also declined. Ultimately by 1940 the Land Revenue Commission (Floud Commission) recommended that the zamindari system should be abolished. The 1885 Act included a clause by which the landlords had the onus of disproving the ryot’s claim to occupancy. This benefited the occupancy ryots to a great extent, just as the Land Reforms Act (1979) benefited the bargadars by throwing upon the landlord the onus of disproving the bargadar’s right as tenant over land.
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24. Permanent Settlement created such property rights on land as are upheld by the western jurisprudence as the ‘power of alienation and sale’ and possessing the same from ‘generation to generation’. Such rights were then extended to land possessed by ‘tenure holder’ and ‘fixed rent ryots’ and ‘occupancy ryots’. 25. GO 1701-3M-07/06 West Bengal Government. 26. However, the basic price is determined by average actual prices in the market during preceding three years. In an economy where asset prices increase over time due to inflation the owner does not get the prevailing higher price for his piece of land.
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Manish K. Jha
2 Two Leaves and a Bud Tea and Social Justice in Darjeeling ROSHAN RAI AND SUBHAS RANJAN CHAKRABORTY
T
ea is what has made Darjeeling internationally famous. Darjeeling is synonymous with its exquisite muscatel flavoured tea. Tea is promoted by the Tea Board as an exclusive brand, comparable with champagne and cognac in other contexts. Darjeeling tea conjures the vision of a pale yellow brew, rich in aroma and delicate in texture, served in expensive china and sipped in open and sunny terraces with the majestic snow-capped Kangchenjunga as the backdrop. Between 8 and 12 million kg of tea are produced every year in the Darjeeling Hills. Eighty per cent of it is exported, fetching premium prices. In 2006 a new record for prices was set when the price per kg crossed Rs 50,000. Darjeeling tea is an international brand. Even though Darjeeling produces a maximum of 15 million kg of tea per year, in the international market almost 40 million kg of Darjeeling tea get circulated. More than 30 per cent of Darjeeling’s land is under tea plantation. The industry provides employment directly and indirectly to about 50 per cent of the population in the district. Fifty per cent of the directly employed workers are women. There are officially 87 tea gardens in Darjeeling at present. A tea estate can be described as a capitalistic institution operating with wage labour and owned either by an individual or a corporation. Darjeeling tea is grown in altitudes ranging from 600 to 2,000 metres above mean sea level. The cool and moist climate, the soil, the rainfall and the sloping terrain—all
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combine to give Darjeeling tea its ‘muscatel flavour’ and ‘exquisite bouquet’. The combination of natural factors gives Darjeeling tea its unique flavour, not found anywhere else in the world. Thus it is much sought after and highly valued in the affluent western and Japanese markets.
A BRIEF HISTORY
OF
TEA
The evolution of Darjeeling is closely linked to her tea. Darjeeling is the northernmost district of West Bengal, India. It is the only hill district, which is socio-ecologically very different from the rest of Bengal. The territories at present under the district were acquired by the English East India Company from Sikkim and Bhutan between 1835 and 1865. This development has to be seen in the context of the conflict between Nepal and Sikkim in the early 19th century and the inevitable confrontation between these powers and an expanding colonial state in India. The British decided to set up Darjeeling as a sanatorium. Dr Campbell, who was shifted from Nepal in 1840 as the Superintendent of Darjeeling, made experimental plantation for the first time in Darjeeling. This was done at a time when the Company had already been thinking of starting tea plantations in the territories under its possession. Lord William Bentinck, the Governor-General, appointed a committee in 1834 ‘for the purpose of submitting a plan for the introduction of tea culture into India’. In fact, however, Major Bruce in 1821 and Mr Scott in 1824 had discovered the tea plant growing wild in Assam. Satisfied that tea had a great future, the government took the initiative to start experimental plantations in Assam and even in the Kumaon and Garhwal. By 1839, the initiative passed to private capital and the Assam Tea Company was formed in 1839. Dr Campbell, then Superintendent of Darjeeling, started the experimental cultivation in Darjeeling and was satisfied with the result. It was seen that the plant was suited to the altitude, the climate and the soil. His lead was followed, among others, by Dr Whitecombe, the civil surgeon, and Major Crommelin, at Lebong (8 km from Darjeeling town and situated at a lower altitude), who opened experimental nurseries. It was realised a little later that sites at a lower altitude were better suited to the cultivation of the plant. Mr Martin started
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plantations at Pankhabari and Kurseong. By 1856, the experimental cultivation was transformed into a full-fledged industry. Some of the earliest gardens were at Takvar (under Capt. Masson) and Kurseong (by Mr Smith). The government supplemented these efforts by supplying seeds to the local cultivators, but they were not prepared to wait for four years for the fruition. The year 1856 has usually been accepted as one in which tea emerged as a commercial enterprise in Darjeeling. The Kurseong and Darjeeling Tea Company started a garden at Alubari, while the Darjeeling Land Mortgage Bank opened one on the Lebong spur. Growth thereafter was pretty rapid. By 1905, more than 50,000 acres were under cultivation and total production was more than 12 million pounds. Total number of gardens stood at 148. Tea was introduced by the colonial masters in colonies conducive to the cultivation of tea so as to break the monopoly of the Chinese on the tea trade. Even today, tea remains a highly export oriented industry. The romanticising of Darjeeling tea masks the harsh reality associated with the growth of the tea industry. Tea was introduced into Darjeeling by clearing large tracts of land with the help of migrant Nepalese labour. Darjeeling was one of the places where the British had no problem with labour at the initial stages because of the large number of immigrants from Nepal. The immigration was caused both by the presence of push factors in Nepal and the pull factors operating in Darjeeling. Tea appeared to be one of them. The rapid growth of the tea industry between 1850 and 1900 created heavy demand for labour and immigration from Nepal, in particular, met the needs of the tea gardens in the hills. In 1891, it was found out through census data that 88,000 people residing in Darjeeling were born in Nepal. By 1901, the census of that year showed that the tea garden workers and their children accounted for more than two-thirds of the total population. Some Chinese were also brought in for their technical expertise. Tea was introduced in the Darjeeling and Kurseong sub-divisions as Kalimpong had settled agriculture and reserve forests. It is recorded that in 1873, the cost of tea planting was estimated at Rs 40 per acre and wages were 4 annas per day. It is important to record this evolution and its history as one needs to remember that tea plantation was an exotically introduced socioecological system in the hills during the colonial era. One also needs to note that the sole motive for the introduction of tea was profit. The experience of suffering of the large body of immigrant labour in the plantations is not, unfortunately, well recorded. However,
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collective memory in the form of folk songs and poems do record the miserable existence of the plantation labour. Notions of social justice were irrelevant to the colonial government and the planters. But, looking back, we can see the emergence of the ethos of a migrant community, sharing the miserable existence they did, and gradually forging an identity. This was achieved more through the shared living, abject as it was, in the gardens and the common language, that is, Nepali, which emerged as the lingua franca, gradually taking the place of the various tribal languages/dialects. The experience of life in the plantations and the factories here did not differ from such experience in other parts of the world. Sardars were active bringing in workers from Nepal. Contemporary chroniclers have noted the indebtedness which compounded the plight of the workers: ‘The brother and the sister are indebted to the tip of their hair.’ Census figures indicate that between the1860s and 1900 there was an increase in the number of Europeans and Eurasians in Darjeeling. Plainly they came in to man the managerial and supervisory positions in the gardens. The workers lived in the gardens with their families and were given a tiny piece of land to till. But they had no title to such lands. They could be asked to quit the garden at the pleasure of the management. Planters virtually treated the workers as slaves. Any attempt by the workers to organise themselves was, understandably, out of question. We have some evidences of organisation during the non-cooperation movement in the early 1920s, but this did not result in any unionisation. Sporadic trouble was in evidence, but it was not till the 1940s that one finds serious attempt to both organise the plantation workers and to make their miserable condition a political issue. The Communist Party of India, and later the All India Gorkha League and the Congress set up their respective unions. The Darjeeling Chia Kaman Mazdoor Union was organised by the CPI and its first secretary was B.B. Hamal. It was, however, an uphill task. Outsiders were prevented from entering the gardens and often allegations of criminal trespass were levelled against the political workers. The police naturally obliged the management.1 Such then was the broad scenario at the time of transfer of power. However, the question that this paper dwells on is not the absence of social justice in the colonial period, but its present state in the tea gardens. The condition of the plantation workers received relatively more attention after 1947, but obviously problems persisted. There was new legislation seeking to give the workers rights and a better deal. Several
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gardens changed hands and most gardens are now owned by Indians. A certain degree of militancy characterised trade union activities from the sixties onwards. Yet, the plantation workers continue to be in a state that leaves a lot to be desired. Tea plantations are governed by the Plantation Labour Act 1951, which is a Central Act. This Act is supplemented by the West Bengal State Rules of 1956. The need for suitable legislation on plantation with a view to formulating social policy for the vast labour population, seeking to ameliorate their living and working conditions led to the formulation of the Plantation Act in 1951. The preamble aims at providing for the welfare of labour and to regulate the conditions of work in plantations. Thus, the issues of social justice have to revolve round this piece of legislation, at least from the viewpoint of legal conditions. Each tea estate has a group of permanent employees who form just 20–25 per cent of the total population in the garden. They are the only ones who can avail of the benefits under the Plantation Labour Act, 1951. Eighty nine per cent of the labour force is, however, daily rated wage earners also known as ‘numbered workers’. Fifty per cent of the daily rated workers are women. Even now, in most gardens, it is the descendents of the first Nepali migrant labourers who are employed. They are completely dependent on the tea plantation for their livelihood and have no other means of sustenance. Their entire life revolves round the gardens as they are housed within the estates. The payment of wages in tea plantations in hill areas is based on piece rates: the hazira and ticca. The hazira is the daily wage paid to each worker on completion of a particular work, which has been allocated for the day. The minimum wage rate has been fixed at Rs 49.80 per day, but daily rated workers engaged in jobs other than plucking get additional compensation over and above the daily wages in terms of the Plantation Labour Act, 1951. Ticca refers to overtime work as well as to extra plantation work given in contract. Each worker usually supports five to seven family members with his/her wage. During the plucking season (February–March to October– November) extra labour is needed. Since the growth of leaves is not continuous but comes in flushes, extra labour is needed for about six months a year. The management employs seasonal labour, usually women, from the garden. They are also known as biga workers. Their wage is based on the quantity of green leaves they pluck. The stipulation for the average quantity of tea to be plucked per day is 8.5 kg but it can go up to as high as 50 kg. The recommended rate is
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Rs 8 per kg of leaf plucked. The permanent daily rated workers are also used for plucking. They get their usual Rs 49.80 for plucking 8.5 kg of tea but anything above it is ticca which is paid at the going rate.
A BRIEF SURVEY In this chapter, we propose to make a brief survey of the conditions at two tea estates: Tukvar and Mim. North Tukvar Tea Estate is one of the oldest tea gardens in Darjeeling and was established only a few years after the first tea garden had been set up. Williamson Magor and Company, the original proprietors, established the Upper Tukvar garden in1852 with the help of Chinese labourers. Later, Nepalese workers replaced them. The existing forest was cleared for tea plantation. Jayshree Tea and Industries Limited, a subsidiary of the Birlas, owns North Tukvar now. North Tukvar lies on the northernmost slopes of Darjeeling and falls under the administrative jurisdiction of Bijanbari Block. It is connected to Darjeeling Town, 17 km south, by a macadam road. The garden has a gross acreage of 510.15 hectares with 237.24 hectares under cultivation. The factory is situated at an elevation of 2,000 ft above mean sea level. North Tukvar has a population of 5,000 which is housed in the 5 hamlets within the garden. Most of them are descendents of the original Nepalese immigrant labourers. The majority belongs to the Rai and Limbu communities. One must note that a typical tea garden houses most of the workers on land within the estate. North Tukvar employs 1,378 non-permanent workers, 1,318 daily rated permanent workers and 60 permanent workers. Four hundred and fifteen of the daily rated workers are women. Since the number of permanent workers is small, most people are per force engaged in agriculture. On an average, they cultivate 1–2 acres of land. Many migrate to the cities. Access to water is a serious problem here. In the peak plucking season, the garden employs around 250 seasonal workers for plucking. They are usually from within the estate. Mim Tea Estate in the Sukhia Pokhari Block borders eastern Nepal in the south and south-western side. Sukia Pokhari, its closest urban hub, is to the east of Mim. Andrew Yule Company owns the Mim Tea Estate with 49 per cent of the company’s share being in the public sector. Mim sells some of its packaged tea in the local market too.
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The factory in Mim was established in 1862 and tea was planted after clearing the local herb, titeypati. The word ‘Mim’ has been derived from the Lepcha/Dukpa word, Mimi, meaning spiritual master. Mim tea estate is surrounded by Khasmahal settlements and a reserve forest. The area is said to have been the site of a Lepcha fort. Legend links it to the Chief of the Nepal army, Damodar Pandey, commonly known as Parey Kaji, who in the early 1800s led the conquering Nepali army into Sikkim. Thus, in and around Mim history seems to be a living memory. Mim Tea Estate has a total acreage of 389.65 hectares and employs 503 permanent workers. Four hundred and twelve of them are daily rated permanent workers and in the peak-plucking season up to 250 temporary workers are employed. The workers are settled in the Mim and Pembong divisions within Mim. The people are a mix of Rai, Dukpas and Tamang communities; there is one Lepcha family as well. In Mim, some of the temporary workers come from neighbouring Khasmahal or non-plantation areas. Both these (that is, Tukvar and Mim) tea estates are conventional, which means synthetic chemicals are used in the production of tea. As a cross reference, representatives of the Tea Promoters of India and Small Farmers of Mineral Springs were interviewed. This was done to look at emerging trends of organic farming and fair trade. Tea Promoters of India have a conglomerate of five tea estates in Darjeeling and one in Dooars,2 which have been certified as producers of organic tea and practitioners of fair trade. They have a partnership with Mineral Springs Small Farmers’ Collective which grow certified organic tea. It has also earned the label of ‘Fairtrade’. The rationale behind fair trade can hardly be doubted. It is basically an initiative for small farmers and wage workers in the Global South, who have been restrained in their economical and/or social development by the conditions of trade. If fair access to markets is ensured by creating better conditions of trade they are likely to overcome the restraints of development and accordingly join fair trade. In this context, we may begin by looking at the notions of social justice that the workers/residents in the gardens may have developed. We give here a sample of the responses we could tease out in course of our conversation with them: Giving all the facilities to the workers from the management side without any delay and without corruption is social justice to me. —Office Apprentice
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For me, justice would be taking care of unemployed youth, good means of communication with proper medical facilities. —Head Clerk Conducive relation among the company owners, management and the workers should prevail. —Party Branch President Facilities/allowances, most of which have been cut down, should be provided keeping in view the rising market prices of various commodities. It would sound just to me. —Female Worker Justice to me would be the eradication of domination and nepotism of the management as well as of the labour union in the tea estate. —Tea Maker [Justice lies] in separation of casual labour from the permanent ones, in terms of providing various facilities, most importantly the medical facilities. —Casual Worker One single medicine should not be given for all sickness and the health workers should not be biased providing support to the patients coming from all walks of life. Management as well as the union should take care of these problems. —D-Grade Driver Business is down due to fencing around factory. The management should be able to look into the interest of the labour. —Canteen Manager Alternative means of employment in the garden would not have made me migrate from the area. —M.L. Gail, Bandra, Mumbai Management should be able to identify expertise in various concerned fields providing them with adequate wages. —Worker First we should make people aware what their rights and duties are; that would be first step towards social justice. —Female Worker Poor people benefiting from various gardens/government schemes with proper mechanism of implementation and monitoring would be justice for me and the people. —President H.P.W.U. and a Worker Inequalities between men and women should be eradicated, both enjoying all the rights—social, cultural, educational, religious and political. The freedom of choice should prevail all over. —Asst. Teacher, Jr. High School Wages should be adequate in terms of labour involved. —Tea Plucker
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The word justice reminds me of bread and butter but what we get here is inadequate; there is delay in the payment of our wages and scope for promotion in accordance to our capacity is absent. —Worker Relaxation should be there for the labour who is also a student. —Worker Facilities such as housing, toilets, drinking water, road repairing and others should be equally provided to all involving the labourers from khas areas. —Sub-Staff Crèche renovation with the helper for baby care should be provided. Moreover supply of food, milk and toys for children is absent. Package of baby-care training from the garden would be more beneficial. —Crèche Supervisor Freedom from domination with medical aids, doctors, umbrella, rain coat, good communication, proper educational institutions and sound economic condition for all is social justice to me. —Compounder It has been more than three years since reporting to the Garden about the water leakage of my roof; there is no response from them. Is it justice? —Labour Management should help the people in changing unjust land-labour policies in tea garden.3 —Garden Resident Management should plan and implement the programmes that envision the holistic development of the people in tea garden. —Garden Resident
How far do these expectations get satisfied by the existing mechanisms?
PLANTATION LABOUR ACT In the post-colonial period, the work condition in the tea industry was to be regulated by the Plantation Labour Act 1951(PLA) along with West Bengal State Rules of 1956. The preamble of the Act aims at providing for the welfare of labour and to regulate the conditions of work in plantations. The PLA extensively covers all aspects of
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plantation life and appears to be almost utopian in some respects. It goes to such specific details as to spell out not just housing benefits but the number of times the tenements must be whitewashed. The management of the plantation decides all aspects of life in the estate, but the workers’ rights are protected by the PLA which include wages and benefits, working conditions, housing, medical facilities, maternity benefits and crèche for infants, education, subsidised food, water, sanitation, electricity, protective gear, firewood and energy needs and entertainment. This range of benefits is what justifies the daily wage rate below the Minimum Wages Act. The PLA also provides for a suitable institutional set-up to enforce various provisions of this Act and Rules. The Labour Commissioner and the Chief Inspector of Plantations in Kolkata and Assistant Labour Commissioner with Inspectors at the district/sub-divisional level act both as watchdogs and mediators. There are further gradations in the chain of command. Various committees and boards are also in place. There are two statutory boards: the Tripartite Advisory Board and the Housing and Medical Advisory Board. They are constituted with the representatives from the Government, Employers’ Association and Employees’ Union. Besides, a Tripartite Committee to oversee the implementation of the Act and Rules has been formed by the Government of West Bengal. The PLA also ensures the appointment of a welfare officer for estates with more than 300 workers. We have already noted the beginnings of trade union movement in Darjeeling. It was on 15 September 1945 that the Darjeeling Tea Garden Workers’ Union under the Communist Party of India was set up; in the late 1950s, the Darjeeling District Chia Kaman Shramik Sangha affiliated to the All India Gorkha League, a regional party, was re-established; in 1960, National Union of Plantation Workers was established under the Congress and today there is also the Himalayan Plantation Workers’ Union under the Gorkha National Liberation Front, which is a regional party and controls the newly set up Darjeeling Gorkha Hill Council. The unions have been able to secure occasional succour for the workers, but many of the basic problems remain. There are, however, shortcomings in the PLA as well. It addressed the problems of the plantations inherited from the colonial masters without questioning the system itself and the root causes of the various
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issues and problems involved therein. The PLA was made without consultation with the workers and was made from the benefactor’s perspective. The PLA fails to understand that the plantations are inherently exploitative. A tea garden cannot function without the workers and the workers are part of the socio-ecological system. Yet the PLA covers just the permanent workers who constitute 20–25 per cent of the population. Temporary labour is used for 6–9 months in a year in a tea estate. As temporary labour, they are not entitled to the benefits like housing, medical, maternity and crèche, education, subsidised food, water, sanitation, electricity, protective gear, firewood and energy needs. Thus, addressing issues of social justice from the perspective of the rights and benefits under the PLA excludes 75–80 per cent of the population in the tea estates from the purview of such discussion. Moreover, when one looks at various secondary data and reviews the experience from direct observations one finds that even among the permanent workers the PLA is not always implemented properly. Discussions with some of the workers regarding wage rates revolved around timely payment only. Justice for the permanent worker is limited to the timely payment of wage and not the rate. The Puja bonus was referred to as an icing on the cake. Both the wage and the Puja bonus were referred to by the workers in the discussion never as their right but more as offers which have had to be accepted. It did not seem that any of the respondents had ever made an analysis of the scale or the justice of what is offered. The institutional set-up to oversee the implementation of the PLA is insufficient. Nor does it always function properly. The mandatory visits by the inspectors, eight estates per month, are hardly fulfilled especially from the workers’ perspective. Most workers hardly get to interact with the inspectors. The inspectors themselves are also pushed to their limits with insufficient personnel in a difficult and inaccessible terrain. The various boards and committees which have been constituted under the Act are limited in their vision and work because of the limitations of the PLA. Thus, concrete changes are never effected and whatever action is taken does not go beyond the cosmetic level. This, unfortunately, is more often than not true of the workers’ representatives too. Even they tend to think within the parameters of the PLA. Though Intensive Child Development Scheme and Sarva Siksha Abhiyan centres are running, people have little knowledge about the functioning of these centres. The response to the benefits was mostly, ‘That’s the way it is.’
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WORKERS’ MOVEMENT
FOR
JUSTICE
The history of the trade union movement is also somewhat circumscribed by the PLA and the core issues are usually not discussed. Thus, while the workers look seemingly organised, their genuine concerns/problems often remain unspecified. The workers’ issues are effectively reduced to mere slogans, to be used only to catch votes. This may be a very cynical view, but it appears to be an inescapable one. That the workers sometimes turn violent is for all to see, but the real reasons for this volatility are not often analysed, with most discussions and demands limited to the PLA and the ‘Puja bonus’. The general apathy was evident when the news of a suicide death in 2006 in protest against the exploitation in the tea gardens at Chungthung in Darjeeling failed to stir any strong emotions at any level and the incident faded unceremoniously. This, we feel, is largely due to the fact that tea evolved as a unique socio-ecological system somewhat isolated from the outside world even within Darjeeling. The workers in the tea estates, whether in Darjeeling, in the Dooars or in Assam, are far removed from the corridors of power. This exclusion at the policy level is also an ethnic exclusion by default in the way the workers were brought in by the British. The workers are ethnically different from the policy makers. The tea estates, even after independence, follow the system left by the Sahibs where the manager is referred to as the Burra Sahib and the assistant manager as the Chhota Sahib. The Sahibs live in Bungalows whereas the workers live in Coolie Lines. The workers are referred to as coolie or mazdoor and in many instances referred to with the permanent workers’ numbers. This is a very dehumanising system. Tea gardens, in many aspects, are still very feudal in nature and work on the basis of absentee landlordism. The workers on the one hand and owner and management on the other are plainly a breed apart in the tea estates.
LIFE
IN THE
TEA GARDENS
In North Tukvar, most workers add to their wage income with agriculture and animal husbandry. Migration to Darjeeling or other urban areas is a common phenomenon. Illegal felling of trees also
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supplements their income. Most are in a constant cycle of debt and repayment. There is large-scale unemployment and under employment. The permanent workers are paid their due share of wages but when it comes to the temporary workers there is a sliding scale of payment for the number of kilograms of tea leaves that a worker plucks. The scale reduces as the season progresses. This has no justification as the work still remains the same if not more difficult with the passage of the season. Supply of drinking water and latrine facilities are very limited. Drinking water is a huge problem and during the dry season families have to employ a person full-time to bring water. Natural springs are the source of drinking water. The management provides drinking water in tanks at certain work sites. Housing related discussions recall the time since the last houses were built and how they are not built anymore. The permanent workers did not seem to be aware that they have a right to be provided with housing. Medical facilities are minimal with a single room dispensary and a semi-trained person handling it. No doctor visits on a regular basis. The company provides transport to carry permanent workers, who are seriously ill, to Darjeeling Government Hospital, but the worker has to bear half the expenses for the transport. A crèche is available for the children of the workers; it has basic facilities and some nutritive food is provided to the children. A government primary school functions in the estate but most prefer to send their children to the school run by the IBVM Missionary Sisters. Though it was the custom to provide housing to the permanent workers in North Tukvar, not all the permanent workers have not been provided with completed houses. The last house that was built was quite a long time ago. The houses do not have latrines and are maintained by the workers themselves. Sickness benefit and allowance is two-third of the pay for 14 days. Maternity benefit is three months’ leave with pay. Subsidised food is provided for the worker only. For energy requirements, firewood is substituted with cash. Since this is a conventional garden, there is very little awareness and education on the synthetic chemicals that are being used by the workers. There is hardly any protection provided in terms of protective clothing or food for the worker handling the synthetic chemical. The situation in Mim is more or less similar to that of North Tukvar. The daily wage rate for the workers is pegged at Rs 50.90 per day. Here also most workers are obliged to supplement their income through agriculture and animal husbandry, seasonal migration for
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employment and illegal felling of trees. The temporary workers and pluckers are paid Rs 7 per kg of leaf plucked. The wage is on a seasonal sliding scale. Here too, the last house that was constructed was quite sometime ago and the workers maintain their own houses. Access to sources of drinking water is not as difficult as in North Tukvar, which lies in the rain shadow. But, this is relative as there is hardly any place in the Darjeeling Hills where drinking water is not a problem. The estate has a compounder (para-medic) handling the dispensary. He has two workers under him, one male and one female. There are eight beds in the dispensary, four each for male and female. Darjeeling Government Hospital is the referral centre for serious illness and the permanent workers get reimbursed for the expenses on medicines. Older people recall that they used to be referred to the Darjeeling Planters Hospital in the earlier days. A crèche with basic facilities is available and maternity benefits are also available. The government primary school is not preferred by the people who can afford to send their children elsewhere. As a result, private nursery schools also flourish. The Gorkha Hill Council Sarva Siksha Abhiyan scam, which was linked to the Pembong division of Mim, has made the latter infamous. Subsidised food is provided for the workers only. For energy requirements, firewood is substituted with cash. Mim too is a conventional estate, but there is little attempt to raise workers’ awareness about health hazards and to disseminate safety practice in handling synthetic chemicals. One must note that very toxic weedicides and pesticides are used in the conventional tea gardens as the pests and weeds are getting more virulent with the passage of time. Mim has introduced Hazard Analysis and Critical Control Points (HACCP). The HACCP is an international principle defining the requirements for effective control of food safety. The HACCP system helps organisations focus on the hazards that affect food safety/hygiene and systematically identifies them by setting up control limits at critical points during the food production process. One needs to see how well it is implemented especially when it is a process oriented towards the protection of the consumer. These accounts show that there is a huge gap between the conception and the implementation of the PLA. The gap exists because the institutional structure to oversee its implementation is weak. At the same time, it has been noted that there is also lack of will on the part of the employer to implement the PLA. The stories of Mim and North Tukvar make this evident.
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The largest cost incurred in the tea gardens after the initial capital investment is the labour cost. Minimising this cost maximises profit. One must recall that the colonial legacy continues in the tea plantations. Thus, the workers are merely a cog in the wheel for the tea industry. Human resource development, so significant in the management world today, is truly restricted only to the management while there is very little investment on workers. This is evident in the minimal maternity benefit and crèche facilities. There is little investment on the future worker. Investment on education is minimal; the literacy rate in the tea gardens is the lowest in Darjeeling. This further limits the capability of the workers and their children. Those who are lucky get a permanent worker status and become a part of the large industry. Others either remain temporary workers with additional agricultural income, or are obliged to migrate. Illegal felling of trees by the tea garden workers is an important factor for deforestation in the Darjeeling Hills. Illegal felling unfortunately becomes an economic and energy need compulsion. Once one becomes a permanent worker, the wages are only what the worker gets regularly, whereas the other benefits under the PLA are not provided for on a regular basis. The working conditions are often not what are prescribed; access to drinking water, latrines and fixed working hours are not always maintained to the satisfaction of the workers and in accordance with the provisions of the PLA. In both North Tukvar and Mim housing benefits have only been partially fulfilled. Subsidised food and supply of energy needs are not adequate for the entire family. The workers live in unenviable living conditions. Medical benefits are again limited to the worker and the estates do not provide medical benefits. Being conventional gardens, both Mim and North Tukvar use synthetic chemicals, but the workers have not been trained about the hazards of the use of such chemicals. Neither protective gear nor necessary nutritive food supplements are provided to them. The workers do realise the harmful effects of the chemicals but have no choice if they want to remain employed. What is most amazing is the fact that most workers perceive the benefits as an icing on the cake and not as their right. Thus, in the life time of the worker there is little beyond the struggle for survival. The vision of life is to ensure that the children do not end up as workers but there has been no effort to build their capabilities for alternative employment. Temporary workers have
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little to look forward to except the seasonal work that comes their way. Usually a family has one permanent worker and the rest work on a temporary basis. Along with increasing migration to the towns, employment in the army is another important avenue of alternate employment. Most end up in the unorganised sector with little social safety nets and exploitative working and living conditions. Due to high-risk behaviour of the migrants, HIV/AIDS is entering into the families of the tea estates. Trafficking of young girls is not uncommon. The lack of investment in the workers’ welfare thus poses a problem, while it also indicates an indifference to issues of social justice. In this milieu, in both North Tukvar and Mim, trade unions are very active. At present, the Himalayan Plantation Workers’ Union under the GNLF is active. But one finds that, even with all its activities, the Union succeeds in making little change in the existing system. Basically, there is a reluctance to address the real issues involved in the industry and to contextualise the plight of the workers. Their methods of agitation are rather infructuous in the long run. The union representatives’ concept of social justice revolves round the issues of timely payments of wage and bonus, with some bargaining on bonus percentages, and quantity of benefits. Lock-outs in the factories in the Darjeeling Hills are often a strategy to bring the workers in line by the management. In the long run the union and workers have minimum bargaining power for they have no other choice but to work in the tea estates. The ones which have really been locked out and are sick are the ones that have been mismanaged. An argument that is commonly expressed by the older generation of planters in Darjeeling is that during the British regime, there was at least genuine owner interest in the tea plantations and a long-term strategy was in place. This strategy sought to achieve a balance between net profits and reinvestments in the garden. Many invested in hydro-electricity and roads. But with the new Indian owners there is little interest in long-term sustainability in the tea estates except maximising shortterm profits. This practice is ruining the tea estates. Replanting of the bushes and regeneration are largely neglected. Extensive use of chemicals has further depleted the environment. Issues of soil erosion, water contamination and increase in virulence of pests, disease and weeds demand urgent attention. These are some of the major factors behind the decline of some of the tea estates. Issues of malnutrition have been recorded in the past when Harrison’s Tea Estate closed
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between 1956 and 1960. Other recent closures of Vah Tukvar and Peshok have given rise to different situations. Vah Tukvar supplies Darjeeling town with most of her semi and unskilled and unorganised construction workers, whereas the workers of Peshok reorganised themselves and started selling green leaf very profitably before it was bought back by another company. The confusion in Darjeeling was made further evident in the discussions in North Tukvar and Mim with regard to Panchayati Raj Institutions (PRI). Tea estates have been made part of the PRI or the local self-governance institutions. The concept of local self-government within the 73rd amendment in Darjeeling is quite unique. The 73rd amendment, ‘… relating to Panchayats at the district level shall apply to the hill areas of the District of Darjeeling … for which Darjeeling Gorkha Hill Council (DGHC) exists under any law for the time being in force’ (based on interviews communicated by the authors). It is imperative to note that with regard to peoples’ participation, the clarity of the 73rd amendment is not there in the DGHC Act. There is a great need for clarifying the role of the panchayat institutions within the framework of the DGHC. One needs to note at this juncture that the devolution of powers for PRI within DGHC is on a single-tier basis with the DGHC handling development schemes and district administration handling the institutional aspects. This is a complex working system, which expands the administrative activities of programmes increasing the official processing time and posing bureaucratic hurdles for development schemes. An important indicator for community participation in the 73rd amendment is in the description of powers, authority and responsibilities of panchayats. ‘The preparation of plans for economic development and social justice; the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule’ (based on interviews conducted by the authors). The Eleventh Schedule enlists exhaustive indicators for community management of resources. An important factor for development is the ownership of assets whether it is individual or community assets. The issue of ownership and community participation becomes accentuated in tea estates where the workers have no access to ownership of the land within the tea estate. In Darjeeling 40 per cent of the land is under forests and more than 20 per cent of land is under tea. In both the cases the ownership of land
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and its resources is not with the community. Thus, even with their inclusion in the PRI community participation in the management of resources can never be meaningful. Many of the developmental schemes through the panchayat depend on the ownership of land. Since the workers have no access to land these schemes can never be implemented properly. Thus, in the existing set up the PRI is a toothless tiger. It is interesting to note the limited response of an elected PRI from Mim on community planning at the Gram Samsad. The community is hardly involved and a couple of members draft the plan. Till date, some concrete steps have been taken in only one of the housing lines in Mim. Some houses have been repaired under the Indira Awas Yojna (housing scheme for people living under the poverty line). One of the elected panchayat leaders in North Tukvar (elected under the reserved quota for women) has little understanding of her roles and responsibilities. When one of the knowledgeable educated youths of Mim asked the panchayat representatives about the Gram Samsad plans, they were told, ‘That is not your concern, let us handle it; we (the elected representatives) sit in a room and chalk out the action plan’ (based on interviews conducted by the authors). On this note one needs to ask a fundamental question, especially in West Bengal where people have enjoyed ‘progressive’ Marxist rule for thirty years. The Marxists claim to have founded their rule on land reforms: surplus land had been distributed to the tillers. This remains a hollow claim in the tea plantations where six or more generations have passed and the land still does not belong to the workers. Nor are they any closer to a share in the decision making process. In China, where tea evolved as part of the culture, it is not a plantation crop. Gender discrimination is rampant as the majority of the pluckers are women who hardly have any say or assets to prove their existence. Thus, the life stories of the tea estate workers are the stories of one of the most marginalised sections of our society. Stories like this touch our lives each time we drink a cup of tea but they hardly even brew a storm in our teacup. People who work on the land do not own it or take any part in making decisions. People who have exclusive rights under the Plantation Labour Act are often denied the enjoyment of such rights; the act itself is biased and exclusive of the majority of the temporary workers; neither is the act implemented in its entirety.
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Since 80 per cent of Darjeeling tea is exported there has been an international response. One-third of the Darjeeling tea estates are certified ‘organic’ today. The organic movement is largely due to the consumer pressures in Germany where the Green Party holds quite a clout. A shipment of Darjeeling tea was sent back in the early nineties because it crossed the Maximum Residue Limit during testing. This did jump-start the organic movement. Irrespective of its inspirations, the organic movement has improved the ecology and environment. Subsequently, the workers can now work in a cleaner environment. But, it also has meant an increase in the workload of the worker who is still compensated in accordance with the conventional estates under the PLA even though the organic products get a better price. Another important movement is that a number of these organic estates are Fairtrade or fairly traded. This means that the products fetch a premium price in the fair trade market. The premium is sent back to the primary producers as a development incentive. The usage of the premium is to be decided by the Joint Body, a body of workers’ representatives and management in a participatory and transparent manner. The premium cannot be used by the management to subsidise the benefits under the PLA. For Darjeeling, some leeway has been given for looking after the basic needs of the workers, which can be partly financed by the Fairtrade Premium with full consent of the workers. This movement is still at its initial stages in Darjeeling but has a lot of potential as well as loopholes. In theory, this system is fine but in practice participation and transparency are not easily achieved. The management needs to understand its facilitator’s role, but most management has little capacity to be facilitators. This calls on them to transform their regular working style. In many cases, facilitation has meant the joint body deciding to indirectly subsidise the benefits under the PLA. Moreover, it is not enough to have skill and capacity for planning, but also have a vision. Workers and/or their representatives as well as the managers are limited in their vision and thus draw up plans of actions, which are symptomatic and short-term measures worked out with only a limited analysis of the situation. It is also necessary to question the representation and levels of participation from the perspective of the marginal sections from within the worker community—women, young people and people from the lower classes and temporary workers.4 In both cases of Organic tea and Fairtrade, the certificate can be withdrawn for non-compliance. But the question remains whether it will be withdrawn, as even this is market-driven.
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Another model that is emerging is the small farmers’ collective that is Certified Organic and Fairtrade. Mineral Springs small farmers’ project is one of the pioneering examples. Mineral Springs small farmers are a collective of 450 farmers from Harsing, Dabaipani and Yangkhoo villages. They are from the erstwhile Harrison’s Tea Estate, which closed in 1956. The collective was facilitated by a local NGO, DLR Prerna and the tea is being processed and marketed by Tea Promoters India. What is unique in this model is that tea is grown as part of a polyculture farm and the farmers own the land. The collective is participatory and decentralised in structure, but the issues of the levels of participation and decentralisation need to be worked out in greater details. This partnership of farmers collective, an NGO and a corporate body, Fairtrade and Organic Tea Estates challenge the existing setup in the tea industry, and conjures visions of workers’ initiatives to ensure social justice for themselves. Marginality almost by definition means denial of justice. And discussions on marginality produce pleas of justice. The notion of social justice cannot be extricated from those of economic and political justice. It is also necessary to define social justice contextually. Autonomy in Darjeeling might have provided a better framework within which to work out provisions of social justice in the tea industry in the district. But the working of the DGHC so far has left a lot to be desired. What is worrying is that the colonial world lives on in the plantations and this accentuates situations of marginality so far as the workers are concerned. In this micro-study we have tried to understand the denials. The situation here is not as acute as in the Dooars and the Terai regions of north Bengal, where starvation deaths following closures have been reported. Tea gardens have been closed or have been converted to alternate land use (for example, real-estate or township projects), producing large-scale distress. In the context of Darjeeling, the inadequacy of existing legislation is all too plain. Access to land, to water, to hygienic living conditions, indeed to sufficient provision for housing, are all examples of denials. One needs to add to this the reluctance of the owners to invest for renewal. Organised trade union movement is splintered and following a tradition peculiar to Darjeeling is mainly in the hands of the dominant GNLF. The overall picture is dim; the only beacon seems to be the attempt by the workers to organise cooperatives to work the closed down gardens. This might lead to a better distributive justice, if they receive adequate assistance from all concerned.
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NOTES 1. In this context, it is interesting to note that Asok Mitra, the SDO of Kurseong ruled that political workers entering the gardens for political work could not be charged with criminal trespass. This marginally facilitated political work. 2. Dooars are the foothills of Darjeeling. 3. Plantation Labour Act 1951 envisages that labour after his/her retirement has no rights on land. 4. An interesting statement by a young management level employee looks at the evolving paradigms: ‘Today we need to manage workers and not instruct them.’
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3 Deprivation and Social Injustice in a Rural Context An Ethnographic Account KUMAR RANA WITH AMRIT PAIRA AND ILA PAIRA
Bhoter aghe kato babu mitha mitha buli Jitin kari kailkata na dilli chailen geli Humra babu boka manush gatar khatai banchi Babu chalak bhulai kari khachhe dudher chanchi (Oh babu, how sweet your words are, when you come to seek our votes. But as soon as you win the election you leave for Kolkata or Delhi, Who knows where. Ignorant as we are, we live on our manual labour. And you are so clever babu that you eat The whole cream by deceiving us with your sweet words.)
T
he above lines, tuned to a jhumur1 song, come as a quick response to a question as to what does she feel about justice. The respondent, Janki Mahato,2 is at her ironical best. She is a young married woman of Jorakhali village under Jhargram block of West Medinipur district. Apart from being a housewife she also works in the family farm and engages herself as an agricultural labourer. As the occasions come, she frequents the forest to fetch firewood for the household and leaves to make leaf-plates to sell in the market to earn some extra money. She has a son and a daughter, both studying in the village primary school. Her husband owns some land that he cultivates with family labour. He also engages himself as a manual labourer as and when opportunities occur.
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Janki’s slender figure rhythms with her infectious laughter. And she explains: Nyay? Kiser nyay he? Humder chhanpunara bhoke kande. Rog asukhe bhuge—bina chikchhay. Iskul jay kintu parha likha ghoarar dim. Nyay to uar jar taka acchhe, aar khamata acchhe. Nyay netader pockete aar kedarder pate. Je taka dilo uhe nyay pailo, jar taka nai uar fukur fuk. (Justice? What justice? Our children cry with hunger. They suffer from illnesses of various kinds, and yet, do not receive any medical aid. They go to school, but learn nothing. Justice is for those who have money and power. Justice is in the political leaders’ pockets and [party] cadres’ stomach. He who pays receives justice and those unable to pay just get nothing.)
A friend asked, when told this story, whether Janki can be taken statistically. Does she represent the village population? And even if so, can her case be linked with social injustice generated through deprivations of education, health and food security? Let me quickly answer the first two parts of the questions before attempting to answer the third. First, Jankis are not statistical objects. They are human beings, and a discussion of justice should hardly be influenced by the question of statistical uniformity—despite the fact that statistics has its own importance. But should it not be addressed from the point of view of social justice if the so-called affected population is meagre in number? Rather the opposite; the weaker parts of society—numerically or otherwise—should get more attention from the point of view of justice—economic, political, cultural—in a word, social. And second, even if we examine the case based on the numerical appearance of responses, which we definitely will in a later stage of our passage, more than 90 per cent of the 200 odd responses in two villages of Jhargram block, Jorakhali and Betkundri, felt, in a way similar, to what Janki explicitly thought. Of course, the articulations did not follow a uniform pattern as the individual members of the two villages have distinct subjective existence. In our attempt to answer the third question we will henceforth try to elaborate the various responses of the villagers of Jorakhali and Betkundri, which we studied during October–November 2006. Mention may here be made that the selection of the villages was more on the basis of convenience than on random sampling as the latter could have hardly influenced the study to make it representative. Of some 500 odd villages in a block, a miniscule sample of two can
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only ridiculously be claimed to have universal applicability. Yet, these two villages may indicate a lot about the socio-economic and political setting of the state by revealing a complex relationship of demography, geography, economic and political interactions, state intervention and nonintervention in social sector, and so on, as well as the inseparability of social justice with the issues mentioned above. While trying to examine these relationships we intend to (a) have a quick look on the location and draw a socio-economic sketch of the two villages; (b) examine the perception of the villagers about the realisation of the basic state deliveries, namely, education, health and food security and (c) analyse the responses of the villagers on the context of social justice.
LOCATION
AND
SOCIO-ECONOMIC DYNAMICS
General Introduction Both the villages are under Radhanagar Gram Panchayat of Jhargram Panchayat Samiti. Both are very close to Jhargram, a subdivision town on the South-Eastern Railway, which is well connected with the state capital. While Jorakhali is 2 km west to the town and is very close to the railway line, Betkundri is 3 km away on the northeastern side and is located near the state highway that connects Jhargram town with Bankura (and also Purulia through Belpahari, after bifurcating at Silda). In a way, Betkundri has better accessibility than Jorakhali, as the latter does not enjoy any public transport facility. However, in economic terms, Jorakhali is better placed than Betkundri as it has certain resources conducive to agricultural activities. It has some artesian wells. In fact, the village has found its name from the convergence of two streams in this village (jora—a pair, and khal—stream), which was filled in with earth to make cultivable lands. The artesian wells provide some advantage for double cropping in parts of the lands. Nevertheless, the complete absence of state facilities, complained the villagers, has reduced the immense possibilities in terms of agricultural growth. In addition to agricultural advantages the demographic feature of Jorakhali has some impact on the incomeoriented activities of the villagers. Betkundri on the other hand does not enjoy much of these advantages.
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Kumar Rana with Amrit Paira and Ila Paira
Although both the villages are much similar as regards the number of households and total population, they have substantial differences in the demographic compositions as well as employment pattern and economic activities. Again, these factors seem to have exerted their general influences on education, health and food security. At the same time, we find some general variations among the households inside the villages. From the comparative Table 3.1, compiled from the Census of India 2001 data, we can see that: 1. While the total literacy and female literacy rate of Jorakhali (68.55 per cent and 56.2 per cent respectively) are higher than the block averages (64.6 per cent and 51.7 per cent respectively) the same figures for Betkundri are much lower (60.29 per cent and 46.9 per cent). Mention may here be made that as far as the literacy rate is concerned all the eight blocks under Jhargram subdivision (Binpur I, Binpur II, Jhargram, Jamboni, Gopiballavpur I, Gopibalavpur II and Sankrail) fall much below the district (70 per cent) and state (69 per cent) average (Rana 2006). 2. Both the villages have less dependence on agriculture as compared with the block and the district (Also see Figures 3.1 and 3.2). Also, interestingly, despite being a tribal village Betkundri has a small proportion of agricultural labourers, which contrasts with the general pattern of the block, district and state.3 This is linked with the intra-category divisions among the Adivasis (Scheduled Tribes, henceforth ST) and their socio-economic and cultural structure. We will devote some time on the different TABLE 3.1
Population
Female–male ratio (FMR)
Literacy Rate
Female Literacy Rate
% Cultivator
% Agricultural Labourer
Medinipur W Jhargram Jorakhali Betkundri
No. of Households
Name
Socio-economic Patterns of the Study Areas
30,355 118 105
50,97,008 1,53,331 580 578
959 957 933 986
70 64.6 68.55 60.29
59 51.7 56.2 46.9
33.4 34.0 23.9 28.3
27.2 30.1 29.7 9.0
Source: Census of India 2001.
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Deprivation and Social Injustice in a Rural Context FIGURE 3.1
FIGURE 3.2
Employment Pattern in Jorakhali (Primary)
Employment Pattern in Betkundri (Primary)
Source: Study done by the authors.
social groups of the two villages and the influence of such divisions on the general socio-economic pattern of the village societies before going into other details (See Table 3.2). People and Their Livelihood Pattern Of the 118 households in Jorakhali, a large majority belongs to Kurmi Mahato—a social group that had been in the ST category till 1931. It is a semi-tribal group and their social, cultural and religious practices bear many different signs of their being a member to the larger Kherwar group from which had originated tribes like Santal, Munda, Ho, Mahali, and so on (Rapaj 1994). It is, like the other Kherwar groups, largely dependent upon settled agriculture. However, due to various factors, their economic status is comparatively higher than that of the Santals and others. Also, thanks to the combination of their better economic status and closeness to the caste Hindu society and
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Kumar Rana with Amrit Paira and Ila Paira TABLE 3.2
Jorakhali and Betkundri: A Comparative Sketch Jorakhali Demographic composition Occupational pattern Livelihood security
Social status
Basic facilities
Betkundri
Kurmi Mahato, Santal, Sabar Santal, Muslims Cultivation, Wage employment, gathering. Sabars are more vulnerable than others; nevertheless all the groups face the wrath of hunger in varied degree. Level of illiteracy is very high. However, all the children are now enrolled in primary school. Nevertheless, the quality of primary education delivered is highly doubtful. There are some cases of dropout even at primary level. Degree of acquiring higher education is very low. • Primary school • Health centre—2 km • ICDS Centre so irregularly functional that some of the villagers are not even aware of its existence
Cultivation, wage employment, petty trading. Santals are seemingly more vulnerable. Nevertheless, both the groups have to face certain level of hunger. Level of illiteracy is very high. However, all the children are now enrolled in the SSK established in the village. Cases of dropout at primary level are also found. Higher education is still a distant dream.
• SSK • Health centre—3 km • ICDS Centre so irregularly functional that some of the villagers are not even aware of its existence
Source: Study done by the authors.
some other factors, Kurmi Mahatos have relatively stronger presence in terms of political dominance. Nevertheless, no wider data on the socio-economic status of this group is available as the group has been de-scheduled in the same year (1931) when collection of Census data with caste disaggregation was last done. But general observations show that this semi-tribal group has overwhelming dependence on agriculture—as cultivators as well as agricultural labourers. This is very clearly reflected in Jorakhali where all the Kurmi households own some cultivable lands but at the same time 80 per cent of them engage themselves as agricultural and other daily wage earners, such as digging, construction, and so on. Only three of the households have members with some very low-income job employment.
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Nonetheless, while the tribal groups of the village like the Santals and Sabars are at the receiving end of extreme poverty, the situation of the Kurmis is a little better. The percentage of Santals and Sabars on the balance of population is almost equal. However, there is a clear demarcation line between these two groups: while the Santals are primarily settlers, the Sabars are still far behind in acquiring the skills of settled cultivation. This has clearly exacerbated the already vulnerable condition of the tribes in general and the Sabars in particular. As the latter largely depended upon gathering, the rapid degradation of forests has deprived the Sabars of the only opportunity of livelihood. They neither have land to cultivate, nor have they acquired the skills of settled agriculture. In addition, declaration as criminal tribe by the colonial government has just worsened their condition: even today they are seen and treated as very lowly creatures. Not so long ago, serious social observers might remember, how pathetically Chuni Kotal was treated by one of her teachers at Vidyasagar University, where she was doing her Masters in Anthropology. Chuni was the second graduate—and the first woman graduate—from this community. Failing to withstand the regularity of the teacher’s humiliations Chuni’s protest took the route of committing suicide. The multiple onslaughts that the Sabars face—their sudden uprooting from the traditional settings and the social degradation— have put them in a condition where many of them regard the old days to have been much better than the present ones. Be it land reform, or wage hike, be it Annapurna Yojana or 100 days employment guarantee scheme—nothing seems to have benefited this community. Not that the other two communities have benefited much; in fact most of the villagers complain, in complete agreement with Janki Mahato, that the public services have reached the village only on very rare occasions. The complaints were echoed at Betkundri too. This village is inhabited by two ethnic groups: Santals (80 per cent) and Muslims (20 per cent). While Santals have been living in this village for many generations, Muslims are relative newcomers. Also, in line with their socio-cultural texture, they have distinct occupational and economic categorisation. While the Santals have three different activities—cultivation, agricultural wage earning and other manual wage work, Muslims are mostly dependent on petty trading. Nevertheless, both the groups, according to their own evaluation,
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Kumar Rana with Amrit Paira and Ila Paira
face severe onslaught of poverty and hunger on one hand and governmental neglect on the other. As Manik Tudu of Betkundri elaborates with agony: Aleah okoi hon banu. Ale lagit chili hon banu. Ra rate met da hon rohor chabaena, menkhann nu da hon bang nam. (There is nobody of our own. There is nothing meant for us. We have been weeping for generations and our tears have dried up, yet we do not even get the water to drink.)
Economic Condition The above description, perhaps, has given some indication of the economic condition of the villagers. A rapid household survey showed that the average annual income of the households is far too inadequate to sustain them round the year. However, there are some inter-village as well as inter-household variations (see Figure 3.3). FIGURE 3.3
Annual Income of the Households
Source: Study done by the authors.
As Manoranjan Sabar laments, ‘khate paina, chhena parhabo ki?’ (We do not have enough to eat; how would our children acquire education?) ‘Paisa kharcha na kairle ki parha likha hoy.’ (Education [of the children] requires a lot of money.) Moreover, the meagreness of the household income often does not allow them to procure medical help during illness, which occur not only frequently but also with severity. We shall come back to discuss these interconnection at some length in a moment. Changes in Economic Condition in the Villages Undoubtedly, the villages have travelled through several changes. The opportunity to enhance household income has also been expanded to
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a certain extent, with varying degrees for different classes and communities. One section of the residents of the two villagers thinks that the economic condition of its families has had some improvement. This is due to land reform that provided the families some cultivable land, double cropping in parts of lands and the enhancement in wage rate. But at the same time many of the villagers think that the pace of change has rather been very slow on one hand, and the new socio-political dimensions have affected the changes in a counterproductive way on the other. Again, one section of the people—the Sabars—are not quite ready to agree with their fellow villagers: in sharp contrast to their present state of bondage, their belief tends to follow a line that leads them to a golden past when the forest was in its fullest of resources, nature was bountiful and they enjoyed much more independence. We shall take up here the different construction that might help us understanding the relationship of socio-political dynamics with social justice. Let us listen to some life-experiences: Madan Tudu of Betkundri: He has no idea of his birthday. The only clue that he gives us about his age is that he had just started to migrate to namal 4 as an agricultural labourer when the ‘CPM sarkar came to power.’5 From this hint we can roughly estimate his age to be 45. He went to the primary school but only for two years. Also, it seems, the two years of schooling has not helped him much as he could not even write his name. His father engaged him in tending the cattle of the richer farmers of a nearby village. At that time, the whole family, Madan painfully remembers, had to suffer the rage of hunger for a substantial part of the year. ‘Bhadar asin re ma dakage banu; hana noa jom baraikate nahen huyukoa; lac’ hon bang bidkoa; eta somoy hon addi rengec’; mit dhao daka jom lagitte muskil.’ (We did not get rice during the whole of Bhadra and Asvin [September and October]; we used to eat many different things; yet our stomachs remained empty. Other seasons were no better. It was hard to manage getting rice even once a day.) That extent and acuteness of hunger is gone. ‘Nito bar dang daka namokanale.’ (Now we can eat rice twice a day.) Nevertheless, in spite of the lessening of the severity of hunger, the menace has not disappeared in its entirety. Still, ‘rengec’ ma mena ge; oka jokhe mit bela hon daka bang nam; enrehon laha khon ma adi bhagi’ (Hunger is there. Sometime it is very difficult even to get rice once a day. Yet, the situation is much better when compared with the past.)
This is, however, a partial appraisal of the situation. In overall terms, Madan has serious reservations in appreciating his own condition, particularly when he sees himself in association with the larger perspective
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Kumar Rana with Amrit Paira and Ila Paira
of growth, development and justice, which we shall hear presently. But let us hear some more varied stories. Ratan Sabar of Jorakhali: The only clue—very impalpable indeed—to identify him with any age group is to make an estimate of the age of his elder child, which is roughly 15 years. Therefore, he is around 40 years. He does not at all agree that hunger has disappeared. Rather he thinks that in his childhood the Sabars were entitled to enjoy greater security in terms of food. ‘Hamder janya ban chhilo.’ (The forest was there for us.) There used to be various resources— readily consumable food, as well as different convertibles like firewood, leaves, and so on. Well, there was the fear of forest guards and police. They used to torture the Sabars. ‘Kintu ekhon ki seta nai? Ekhono to kathay kathay police dhare liyen jay. Kuthao kicchhu hole dhar sala lodhader dhar. Uarai badmas. Orai chor.’ (But, is it not the same even today? For any misconduct, done by anybody else, the police say that it has been done by the Sabars. And they say [derogatorily], ‘Catch the Sabars. They are the culprits. They are the thieves.’) His further evaluation could be embarrassing for many: ‘humra jamidar ghare kaj kam kare khate petam; jamidari gelo, humder bhat o gelo; jamidarer jami pelo ainya lokey; kintu humder ki labh haila? Humder dasa arha kharap haila.’ (We used to serve the zamindar and got food in return. Now that zamindari has gone so has our security of rice. Some people have got the zamindar’s land; but what benefit have we received? Nothing. Rather our condition has become more vulnerable.) In his final assessment, ‘even animals are treated in a more human way than what is done to the Sabars.’
Not only the Sabars, but also some of the villagers from other communities do think, with a lesser degree of harshness, that they have largely been neglected from policy attention, resulting in the perpetuation of their miserable living conditions. As Rahmat Ali puts it, the income has increased, but only in monetary terms. In real terms, he does not think there has been much improvement. ‘Majuri berecchhe thik, kintu jiniser dam o to berecchhe, aghe ja khetam ekhan ki tar cheye bhalo khai?’ (Certainly, there has been increase in wage rate. But at the same time the prices of essential commodities have also been increased. Do we eat better than what we used to?) Similar is the realisation of many others. Notwithstanding the variations in the assessments of objective condition of the households, most of the respondents across social and gender identities, think that while there have been some general improvements in the conditions of the villages, the largest share of the benefits have been harvested by the relatively richer people. The feeling was expressed best with the bitterness of Nilmoni Mahato of
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Jorakhali: ‘Jar du taka chhilo uar du hajar hailo. Kintu jar charana o nai chhilo tar ki haila? Ek taka o nai haila. Jamidarer to jami chalen galo, kintu se to arha baralak haiyen saharae jayaen basen galo; aar hamra ja chili tai rahen geli.’ (He who had Rs 2 could multiply it to Rs 2,000, but who did not have even one-fourth of a rupee could not even accumulate a single rupee. See, the lands of the zamindar have been taken away. But what harm did it do to him? He has become even richer and has settled himself in the town.) In spite of some skepticism, particularly of the Sabars, the general approach on economic growth is not questioned much. The question, as we will see in the following part, is essentially on the unequal delivery of the state services that directly link with the issue of justice: ‘Sahar bazarer baralokder jainye sab acchhe, aar humder lege ekta osud borio nai. Ita anyay loy to anyaya aar kake bole?’(The babus of the town have everything under their reach, but we don’t even get a single tablet of medicine while ill; if this is not injustice then what is injustice?) It may worth examining the state of the delivery of basic services.
THE DELIVERING OF EDUCATION: LEARNING FROM THE POOR Madan Tudu’s story goes on. He could not carry forward and had to quit his study at a very early age. But that was a different time, when his only goal was to assuage hunger. Now that the time has changed, the party Madan had been voting for is in power, and the same party is called the party of the poor, then what has gone so wrong as to force Madan’s daughter and his son to abandon studies halfway? Why cannot Janki believe that her children would be able acquire higher education? Why is it that Kalu Sheikh or Milu Sabar and many others do not have much faith on the school education system? These are important questions, but perhaps more important is to note an allegation of Janki. Indeed, the charge is very serious in nature and it targets not only the government but also the society in general which they see as ‘other’: Humder chenameyara likha parha sikhen lile babuder babuani je chalbek nai. Gatrer jorto nai, uader ache kalamer jor, ek kalamer khunchay hayke
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Kumar Rana with Amrit Paira and Ila Paira
noy kairen dey. Humder jadi pete tuku bidya thaikto parto humder sanghe eto anyay kairte? (Acquiring of education by our children means the end of the rule of the upper crust people. They are weak in physical abilities, but they are very powerful thanks to their capability to using the pen. With a single stroke of the pen they can turn things upside down. Could they do such injustice with us had we acquired some education?)
The term injustice appears frequently. And this is again attached with the delivery of education inter alia health and other basic services. Nevertheless, one can ask why she thinks that the ruling classes have conspired against the villagers to deprive them of education, even more so in a case where the primary schooling facilities are available in the village itself and the institutions for higher education (high school and colleges) are located nearby. Both Jorakhali and Betkundri are close to the town not only in terms of geographical proximity but also in terms of day-to-day interaction. Many of the villagers frequent the town, almost everyday, in search of manual work. Women visit the market to sell leaf-plates, tooth twig, and so on. There are several other occasions when villagers go to the town. And yet, such proximity does not seem to have exerted much impact on the educational achievement of the villagers. Is this really an enigma? Or, are Janki and the other villagers wrong in their perception? Is it an in-built weakness that has prevented the people of Jorakhali and Betkundri from acquiring even basic level of education? Before examining these questions let us take a quick look at the educational scenario of the two villages. While Figure 3.4 is clearly indicative of a poor rate of transformation of the children from primary to elementary level it is somewhat deceptive in reflecting the real picture at the primary level. All the children of primary school-going age have been registered with the primary school (in Jorakhali) or SSK (in Betkundri). Undoubtedly this is a big leap forward. While comparing with the past villagers clearly mentioned that they just could not think of such a situation in the past decades. Now, all the parents want their children to acquire education to the highest level possible. Some improvement in the economic condition combined with some special state interventions, like establishing SSK6 in Betkundri (which did not have a primary school inside it before the establishment of the SSK some five years ago) and the launching of the Mid-day Meal programme has immensely
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FIGURE 3.4
Educational Scenario in Jorakhali and Betkundri
Source: Study done by the authors.
contributed to transform this high parental aspiration to stepping forward to realisation (Rana 2004, 2005). However, even with these favourable steps, the parental aspiration can hardly get translated into reality: enrolment in the school does not necessarily mean acquiring education. There are still myriad hurdles the children of the socially and economically deprived communities have to surmount, even to learn the basic skills of reading and writing. While some of these barriers are connected with local conditions, most of them are related to greater policy formulations. And as we hear from the villagers the problems of education have a root that can clearly be linked with accumulated and multiple deprivations (Rana et al. 2002).7 To illustrate, in spite of a perfect enrolment rate in the primary school of Jorakhali, the dismal functioning of the school hardly allows the children to learn the basics. Dulal Mandi sees it this way: We are illiterates. We cannot help our children in their study. They are supposed to learn everything from the teachers. I do not know how much they learn. But the condition of schooling does not make me believe anything positive. One of the two teachers is very irregular. The other one struggles to keep the school in order. What would he teach? And we don’t have money to provide for a private tutor. Nobody cares about the school—neither the panchayat, nor other authorities. Had we been educated we could have helped our children and also could argue with the teachers, who only listens to the
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Kumar Rana with Amrit Paira and Ila Paira
educated people. Only the educated people are powerful and rich, and enjoy respect. Who cares for the poor?
Ganesh Mahato supplements Dulal’s assessment: There are multiple problems. One is the irregular functioning of the school. There is no reason why should there be only two teachers for four classes. Second, why should not the erring teacher be punished? The third is more grave—the insurmountable barrier of language. The texts are written in Bangla language, but hardly any child, particularly of the tribal households can grasp it. Why cannot these children be taught in their mother tongue? There are many other irregularities and difficulties. One is the delay in supplying the books. Second is the lack of basic necessities, like pencils, copybooks, etc. But the most difficult problem is the lack of assistance inside and outside the school. And for all these problems, in spite of a higher rate of attendance—particularly because of the launching of the much desired Mid-day Meal programme, the learning achievement remains very poor, which results in a poorer delegation to the higher level.
The case of Betkundri is even worse. While the establishment of the SSK has helped bringing in the children to the arena of primary education, the facilities provided are far too inadequate—the infrastructure is too feeble to house the centre; the language barrier between the children, the teachers and textbooks is as wide as a sea; children have almost no opportunity to study at home, and so on. In addition, the teachers, in spite of being sincere, are not only poorly paid, but are also subjected to extortion and other harassments by the ruling political party. So much so that the Mid-day Meal programme, which was centrally important for this poverty stricken area was suddenly stopped for about a year and has only been re-launched recently. No complaint was heard. No step was taken. And, is it wrong if this situation leads to a construction assumption by the local residents that it is their social identities—Santals and Muslims—that have been responsible for such injustice. ‘Gerame babuder basabas thakle sarkar emon anyay karte parto?’ (Could the government do such injustice if the upper crust people lived in the village?) asked Karim Sheikh. The sense of deprivation in terms of education has lately led to the construction of a conspiracy theory: a conspiracy of the ruling classes to keep the villagers uneducated. The centrality of education in every sphere of life, land, labour and livelihood has become more conspicuous to the villagers. As Butru Kisku elaborates:
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The political leaders keep the land pattas under their custody to use them to ensure votes. We, the uneducated people, cannot approach the officials. Nor do we understand anything about the technicalities. Similar is it in other fields. We don’t know what is the wage rate that we are supposed to get, or how the selection of BPL (Below Poverty Line) households is done. The leaders keep us in complete darkness. It is education that can bring us justice. But it is education that is being used against us as a major tool of injustice.
THE ILLNESS
OF THE
PUBLIC HEALTH SYSTEM
While people of this area in general think that the delivery mechanism of education in this area has been improper, the health delivery system is perceived to be totally inactive or even non-existent. So much so that most of the villagers’ experiences lead them to think that the state health system is not only indifferent but also highly unreliable. Let us take the example of Sanatan Murmu of Betkundri. Sanatan is a young man of 30–35 years of age. He lives with his wife and two children. He could not hold tears while narrating his experience: Who cares what happens to our life. All the babus and political leaders look after their own interest. They don’t bother whether the poor people live or die. Look at my wife. She is almost bed-ridden. She cannot work. She cannot move out of the house. I have liquidated all my assets to carry out her treatment. Now I have become a pauper. I don’t have anything. Not a single penny. And see I am cooking the food. My daughter—may be six, may be seven [years of old]—she is cleaning the utensils. And my son is tending the cattle for others. Both of them are enrolled in the SSK. But seldom could they attend to their studies. How would they? So miserable our condition is. Who knows who is responsible for this? I have never committed any sin, at least in my consciousness. Then why has such a great misery engulfed our family? … it happened like this. My wife had developed an abscess in her back. I took her to the hospital at Jhargram. The doctor—I shall not tell lie—the doctor did a check up and wrote some medicines. And told to get some [diagnostic] tests done. But no medicine was given from the hospital. I had to buy them. Very expensive medicines he asked me to buy. And the tests had also to be done from outside. Altogether, as far as I remember, I spent some 600 rupees. Where do I get money? I am a poor agricultural labourer. But I had some savings. I am a thrifty man. I do not spend money on drinking or other nonsense (altu faltu) things. Ask my fellow villagers if you don’t believe me.
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Kumar Rana with Amrit Paira and Ila Paira
… but all my hard earned money went in vein. Her condition did not improve. Then again I took her to the hospital. This time the doctor wrote more medicines. I had to sell of my goats and chickens. Yet she did not recover … What to do? I again went to the hospital. Again they wrote medicines. God knows, what happened to her—her condition only worsened. And finally I was suggested by a friend to take her to Bankura. I adhered to the suggestion. The doctor there told me that enough damage has been done. But she could recover slowly. Now she is under that doctor’s treatment. And has recovered to start walking inside the house and courtyard.
It is not the only Sanatan’s story that has created a sort of distrust on the public health system. The whole delivery mechanism has a role to play that has led to this situation. It is as if as a general rule the households of these two villages are prohibited from the health workers’ visit. We could check only some of the child immunisation cards, which reveal a pathetic state of this immensely important service: many of the subsequent boxes following the first or second tick-marked one are found to be blank. While this clearly indicates pruned immunisation coverage, the carelessness of the system has perhaps shaped the minds of the villagers in such a way that many of the mothers have not just bothered to preserve the cards. This unreliability of the public health system has led to a flourishing private practice, which is corrupt and exploitative on the one hand and incompetent on the other. As happens elsewhere,8 such private practices involve two types of medical practitioners: (a) qualified doctors, who are most often attached with public health system as government employees and (b) practitioners who are either unqualified or have been practising one branch of medicine—generally allopathic—with a degree in a different branch. The second group of private practitioners is popularly referred to as quacks. It is very surprising to note that a substantial number of the population of this area who have so easy physical access to a sub-division town with a hospital and a number of qualified private practitioners prefer to receive medical treatment from the quacks roaming around the villages. One cannot but use the term preference with some qualification to avoid a certain degree of apparentness that is involved in it. Preference in this case is clearly a forced construction, resulted out of a sense of helplessness vis-à-vis state failure to deliver justice. ‘Haspatale jayen ki habek? Na bhalo kari dyakhe, na osud dey. Uarle dher bhalo hamder gaunˇli daktar. Paisa thakle dilam. Na thakle pare dilam.’ (What is the
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use of going to the hospital? Neither the doctor checks up the patient with care, nor do we get any medicine. Much better [therefore] is our village doctor. We pay him if we have money. Even when there is no money to pay he gives us the service and we can pay him later on.) The above experience of Jaladhar Mahato has a wider reverberating effect: many of the respondents expressed similar annoyance over the functioning of the public health delivery system. ‘Babuder aar ki? Bhot peralo to kam siralo. Uader osuk bisuk haile bara daktar ache. Kailkata jachhe, Velore jacchhe, humder to jhargayenˇ bara daktar dekhabar paisa nai. Banchi ba mari, gam gharer daktarei bhorsa. jar paisa nai uar jom chhara keu nai he.’ (The rich do not bother [about us]. They just ensure the vote. They have big doctors to take care of when ill. They go to Kolkata or Vellore for medical treatment. We don’t have money even to see a qualified doctor at Jhargram town. Those who don’t have money have no one but the Yama [the Hindu god of death].) Dependent as they are on the local quacks, as we can clearly see from Figure 3.5, hardly do the quacks enjoy any respectability. Many of the villagers were found to be clearly sceptical about the medical knowledge of the quacks or the efficacy of their treatment. ‘Menkhan ched chikaia?’ (But, what to do?) There was none to answer this big question asked by Nabin Hansda of Jorakhali. There are other sources available, but hardly can they be accessed by the villagers. The public health system has nearly collapsed. And they do not have money to buy FIGURE 3.5
Sources of Medical Treatments
Source: Study done by the authors.
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Kumar Rana with Amrit Paira and Ila Paira
better private services. Moreover, their experience has taught them that even if some people could arrange some money by mortgaging their whole future (by selling off the assets) seldom do they get proper treatment from the so-called big doctors doing private practice in the town. Faced with such a harsh reality, these people’s minds have been reshaped so that they only see their own degraded lives as reality. They consequently hold the state and larger society as the agents of the injustice meted out to them for their miserable condition.
HUNGER
AND
PUBLIC INACTION
As though the injustices through the deprivation of education and basic health do not complete the circle of imposed distress, persistent hunger finds its deepest root among the households in Jorakhali and Betkundri. Hunger takes its most virulent form among the Sabars of Jorakhali. In fact, all the three other communities—Santals, Mahatos and Muslims—are also not free from this unremitting condition. A large number of households, we have been told, are bound to face a certain degree of hunger. While it is acute during Septemeber–October, some of the households across the communities face this menace round the year. ‘Humder obosta garu bhedarle o kharap.’(Our condition is worst than the cattle and ship), says Raju Mahato, an agricultural labourer. ‘Bhat jutey thik, kintu katota jute? Ekbela bhara pet khali to ar bela adhpeta, kimba upas.’ (True that we can manage rice. But how much? If we eat one time full-stomach then we have to eat either a half meal or just fast the other time.) Can he be blamed when he thinks Amlasole is not an isolated case but there are many Amlasoles elsewhere? ‘Amlasoler katha khabor kagaje likhenchhe, humder katha keu nai bale, eithai ja tafat.’ (Amlasole was highlighted by the media, and no one talked about us; that’s the difference [between Amlasole and Jorakhali or Betkundri].) Figure 3.6 is self-explanatory. Yet, we do not think this can illustrate even a minute part of the real struggle against hunger that people of these villages are engaged in. ‘Bhok ke ki dekha jay go? Bhoker jala bujhte hole bhok sahite hoy.’ (Can hunger be seen? One needs to sustain hunger to feel it.) Not words, but her facial expression and bodily gesture that combine the idiom of anger, grief, helplessness and hatred
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FIGURE 3.6
Extent of Hunger in Jorakhali and Betkundri
Source: Study done by the authors. FIGURE 3.7
Perception of Justice with Regard to Service Deliveries
Source: Study done by the authors.
unfold the layers of injustices that the state and society mete out with the mouthful of nomenclatures called programmes of poverty alleviation. How do these programmes work? According to Lata Sabar. ‘Ekso din kaj, ekso din kaj pale to raja hoyen jetam.’ (Hundred days’ work? Had we got 100 days’ work we would have become rich.) All other poverty alleviation programmes seem to be placed more on an unjust platform than just. The unhappiness over the selection and distribution of BPL was extraordinarily high. Only a few of the households have found themselves fortunate enough to get enrolled in the BPL list. Almost all the households were not only unhappy but also extremely angry with the ration dealer (see Figure 3.7). And, we just cannot miss to read
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Kumar Rana with Amrit Paira and Ila Paira
the even more dangerous indications: most of the people in the area think that the partisan attitude of the ruling party is a major element of deprivation of the ‘other’ people. The otherness has a very complex texture: they are other in the sense of their lower social and economic status vis-à-vis the elite status of the leaders of the ruling political party, particularly the CPI (M) and the government officials, who are often outsiders. The derogatory remarks against the elite political leaders and the officials (sala bangal—the bugger East Bengalee; or, bajjat bamun—the vicious Brahmin) are often made publicly. It is their everyday experiences of hatred towards the rulers that produces counter hatred and some of its manifestation has already tended to take a violent recourse. In the 1980s, such a sense of exclusion grew up to strengthen the Jharkhand movement, which was launched on the line of identity based equity and justice. The present day situation could lead to a more explosive future as the increased indifference of the state and society as regards to social justice has created a peculiar detachment among the people. The detachment, as is commonly known, takes a line towards a particular attachment. One cannot but see these attachments and detachments from the point of view of justice rather than as mere dereliction of this or that department or some or other officials or political leaders. The whole system has to be fully scrutinised. Not just to understand it but also to change it in a manner that the basic rights of Janki and her fellow villagers—education, health and food security—are ensured. That is where social justice has the role of illuminating action.
POSTSCRIPT The feedback of the first draft of this report necessitated a revisit to the two villages to further the understanding of social justice. The revisit was made in the last week of April 2007. Interestingly, or disturbingly, this time we were asked a lot of questions by the villagers. Most of the questions were related to the Nandigram massacre—the mass killing of the villagers of Nandigram I block of East Medinipur district by the state police and political goons on 14 March 2007. Almost all the villagers were visibly disturbed. They had little opportunity to gather details of what happened at Nandigram—no newspaper come to the
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villages. Only a few have transistor sets. Yet, the news of the massacre had shattered the villagers on two counts: one, the incident itself that had taken so many lives; and two, a horrible fear of getting similar treatment from the state. Will the government take over land in Jorakhali and Betkundri? Will it force the people to vacate their homes? How shall the villagers survive if the government displaces them?
The questions gradually related the issues with justice. What benefit the poor people would get from the proposed industrialisation for which the government has been acquiring land? ‘Hamra to likha parha nai jani’ (we are not educated), and ‘chakri ki murkha loke pai, baraloker likha parha jana chhenara pai’ (jobs [salaried employment] are meant for the educated sons of the rich, not for the poor who are uneducated.) Then, asked Madan: Why the government is doing so big an injustice (annyay)? … It [the government] has not provided the minimum of help to sustain—education, health, employment and food security. On the contrary it has always helped the rich. … You are asking about justice. Is this justice? We live under several atrocities. And now the government is coming up to displace us. …See how injustice brought forth more injustice. Could the government displace the rich, who are educated and powerful? No, it cannot. It can only attack the poor with whom it has never done justice. …Justice is meant for the babus, the netas and the officials. Not for the poor.
Nandigram had filled their minds with the anticipation of displacement. As Ganesh felt, today it is Nandigram, tomorrow it could be Jhargram, who knows? And when people come out to resist they would be replied with bullets. ‘Guli barsain mairen sirabe. Kene emon hochhe?’ (Why is it so?) ‘Sarkare annyay kairbe, netara annyay kairbe, ar garib manus tar upar kicchhu boilte gele uake guli mari suain diya habek?’ (The government and the leaders are doing injustice, and when the poor people protest they are simply exterminated.) And Janki was irony personified: This is the reason that we could not raise our voices against the injustices made through the ill deliveries of the basic services. You are identified and treated with the harshest possible mode when you raise your voice. For any matter, is it the absenteeism of the teacher or the non-availability of medicines at the hospital or the mischief of the ration dealer or the BDO. That is why we cannot protest.
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Kumar Rana with Amrit Paira and Ila Paira
… justice does not come in a simpler way. It needs power. How can an illiterate get justice? Can he read the papers? Can he check the documents? Can a hungry man spare a whole day to join a protest? He has to find work and food.
Pointing to us she said: You people can get justice, because you have the power … you can write and also can spare time. And the government, and you all, the educated and powerful, you have been depriving us from acquiring the minimum abilities in order that we employ ourselves for ever just to find food and nothing else. We just cannot talk about injustice. And even if we do, you commit another injustice of a crueller nature. … Don’t take it otherwise … you too are babus, may be good, I do not know, but I cannot just resist myself … Just leave us, and please do not talk of justice. It is not for us. You have ensured ancestral right over justice … and we are destined to face the wrath of injustice.
Harsh as her words were, can the disturbing questions and statements be ignored at all?
NOTES 1. Jhumur is a very popular form of songs sung in wide parts of, West Medinipur, Bankura and Purulia of West Bengal, Dhanbad, Ranchi, Bokaro, East and West Singbhum of Jharkhand, and Mayurbhanj, Keonjhar and Sundargarh of Orissa. 2. Names of the respondents have been changed, as they desired to keep their identity undisclosed. There seemed to be an apprehension that mentioning them with their original names might cause further harm to their already vulnerable life, and livelihood. 3. Proportion of agricultural labourers to total workers is found to be 54 per cent among the STs in West Bengal (Census of India 2001). Also, this proportion is found to be very high at the district level across the state. 4. Literally, the lower land. Here it means migrating out for agricultural wage employment in the lower parts of West and East Medinipur, Hugli, Bardhaman, and so on. 5. Here the CPM Sarkar means the Left Front Government. Since little or no presence of the other constituents of the Left Front is felt in this area people generally identify the front with its major partner CPI (M)—Communist Party of India (Marxist). Often the ‘I’ denoting India remains silent. 6. It is the acronym for Sishu Siksha Kendra. The SSKs are run under a programme, Sishu Siksha Karmasuchi, by the Panchayat and Rural Development Department of the Government of West Bengal and was launched in 1998. The main objective was to facilitate the children of areas where primary school was distantly located
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or difficult to access. In spite of having a same qualification that the primary school teachers have, the female teachers, called sahayikas, of the SSKs received a pittance: Rs 1,000 a month. Recently, the amount has been raised to Rs 1,500. 7. The wider picture of West Bengal is not very impressive either. The education system does not seem to be sympathetically active on uplifting the educational status of marginalised communities. 8. As in the case of Birbhum of West Bengal and Dumka of Jharkhand, found in a study by the Pratichi Trust.
118
Manish K. Jha
4 On the Wrong Side of the Fence Embankment, People and Social Justice in the Sundarbans AMITES MUKHOPADHYAY
INTRODUCTION
S
itting on an embankment, I started a dialogue with Bhagirath Patra, a resident of North Kusumpur,1 one of the most severely affected parts of Kusumpur island, where the rivers Matla and Goira are eroding banks on both the western and eastern sides. Bhagirath, one of the worst victims of land erosion, is now left with less than a bigha2 of land where he had his house and tiny plot of rice field. Before I could proceed to interview him he stopped me and tried to draw my attention to the vast tract of uninhabited landmass of Prakashnagar3 island right across the river. Pointing towards the opposite bank, Bhagirath told me: You know we used to stay there. We had our bilan jami 4 where the river is flowing now. You can’t make out where our house was, it was far beyond the new land that has surfaced and added to the landmass of Prakashnagar. This is the fourth ring embankment that we have seen during our lifetime. Everything is gone. The river and embankment are eating into our strength.
It would be misleading to consider Bhagirath’s narrative as unusual since he shares his plight with many other Sundarbans islanders.
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The shape and contour of Kusumpur are changing almost everyday. Standing on the embankment, it is difficult for an outsider to visualise what the island looked like in the past when the landmass on its western side extended far beyond where the river Matla is now flowing. It is even more difficult to imagine how the new land or char that has emerged out of the siltation process on the other side of the Matla could once have belonged to the people of Kusumpur. But that is how people in Kusumpur perceive their lost land. They believe that the land they lost due to continuous erosion and multiple ring embankments has contributed to the increasing landmass of Prakashnagar. But they cannot call this new land their own; they are denied access to it as it belongs to a different panchayat. As Bhagirath was talking to me I saw Adhar Mondal, another resident of North Kusumpur, walking towards us. He brought to our notice fresh breaches that had appeared in the embankment there. There were now two anxious faces. ‘This part’—a huge chunk, almost 20 metres long and leaning towards the river—‘is definitely going to go tonight,’ said Chandan Mondal who lived in the same area and worked as a labourer at the embankment site. ‘How can you be so sure?’ I asked him. Chandan smiled and answered, ‘I am 33 now, we have been living with these breaches since our boyhood.’ ‘You come to my house tonight,’ suggested Tapan Mondal whose house was quite close to where the breaches occurred. ‘Nothing is going to happen during high tide as the water pressure will be too high now. Tonight low tide will be quite late. If you can stay awake we will come back to see how the river takes away this chunk in the course of its retreat during the ebb tide.’ ‘At this rate,’ continued Tapan, ‘soon we will have the fifth ring embankment. But I am not sure if we can afford any more ring embankments. The Irrigation people told us that the maximum land available between the rivers on both sides is 800 feet.’ ‘We are about 130 families living in this narrow stretch of land,’ added Chandan. ‘We do not know what fate has in store for us. We are fast losing the land beneath our feet.’ While Bhagirath, Tapan and Chandan continue to lose the ground beneath their feet and are destined to see their rice fields flooded with saline water or meet with the failure of their winter crops for lack of fresh water, Sundarbans development remains a widely debated issue. Debates over the Sundarbans are intensified by the knowledge that this area is a World Heritage Site; it is the only mangrove land with
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tigers to be found anywhere. In 1996 the Directorate of Forests of the Government of West Bengal organised a seminar on the Sundarbans in Calcutta in memory of William Roxburgh who was not only the father of modern botany in India, but was the first Indian botanist to have made plant collections from the Sundarbans. In 1999 the proceedings of the seminar were published in the form of a volume called Sundarbans Mangal.5 Kiranmoy Nanda, the Minister-in-charge of Fisheries, Government of West Bengal, spelt out the purpose of this specialists’ meeting in the following manner: A million dollar question [that] peeps in our minds how Sundarbans is gradually losing her treasures. The Sundarbans, largest delta of the world, is the much talked about natural resource site and it is a privilege for the Indians to have such wonderful place of natural grooming and wildlife habitat. With the increasing population pressure the ecosystem of the Sundarbans is losing its balance slowly. The number of wild lives … has gone down considerably owing to deforestation and the destruction of natural habitats. The occasional visit of ‘Royal Tigers’ to the adjoining villages in search of food is a proof of the above statement. (Nanda 1999: 10)
Global funds that are channelled to the heritage site are informed by a grand vision of sustainability that the best way to conserve and develop the Sundarbans is to allow it to grow as the natural habitat of tigers and crocodiles. In 2001, the Sundarbans Biosphere Reserve became part of UNESCO’s world network of biosphere reserves and as a result the state Forest Department was to get an initial grant of USD 3 million6 from the UN Development Programme (UNDP) for the protection of the Sundarbans (The Statesman 2002). The heritage site also attracted a funding of Rs 30 millions from the Asian Development Bank (ADB) to conduct research on the development of infrastructure, soil conservation and a livelihood programme for the people in the area. Thus, deals were struck and development agendas were prepared in the government departments. Yet a development agenda such as this excludes the worries, anxieties and voices of Bhagirath, Tapan, Chandan and others because they are not deemed to be worth the attention of the community of scientists and policy makers. In the Sundarbans, the largest mangrove delta and a world heritage site, people live in a perpetual state of vulnerability, for breaches occur in earthen embankments that protect the inhabited islands. Erosion is primarily caused by rivers changing their course. However, people
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are not at the mercy of the river alone. One is struck by a sense of apathy on the part of the government departments responsible for the protection of embankments and providing services in the event of erosion and flooding in the region. This apathy is reflected in the absence of any resettlement policy for the victims of flooding and displacement. Rarely, if ever, are people compensated against their lost lands and houses. Thus, here we are not simply concerned with marginalisation induced by riverbank erosion and displacement, but with marginalisation induced by low priority being assigned to people’s problems in the region. This is what makes the question of social justice so very prominent and pertinent in the Sundarbans. What makes notions of justice so contentious is the fact that perceptions of justice are not only plural but conflicting as well. Can social justice be simply subsumed within governmental form of justice (governmentality or the way in which governmental provision or absence of it produces the justice seeking subject) (Samaddar 2007)? Our experience of the Sundarbans suggests that the state’s approach to the Sundarbans’ development is lopsided and has injustice built into it. Our discussion of the delta as a heritage site in the subsequent section of the chapter demonstrates that the region, while giving primacy to its ecology and wildlife, labels people as its unlawful occupants and accords their problems marginal significance. Despite this overarching image of the region as a natural wilderness and despite the islanders having marginal status, there are government departments undertaking development work in times of disaster or natural calamity. However, what is worthy of consideration here is the justice delivery mechanism. By justice delivery mechanism is meant the multilevelled and multi-sited public offices responsible for implementing governmental provisions. An ethnographic understanding of this justice delivery mechanism in the subsequent pages of this paper suggests that it is this deliverance of justice that makes injustice so glaring in the Sundarbans. In other words, the performative aspect of deliverance of justice makes its denial so very conspicuous. It is against this grand narrative of governmental justice that the paper seeks to explore islanders’ or victims’ perceptions of justice. However, to look for people’s notions of justice is not to indulge in ‘cultural relativist fantasies’ (Parry 2000). My empirical study suggests that people’s perceptions of justice are extremely volatile, being shaped
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and reshaped by their continuous encounter and negotiations with the governmental machinery. The following section introduces the Sundarbans and presents, in brief, the social and economic profile of the population living in the region. This will be followed by a discussion of the Sundarbans as a heritage site. Here, I show how the construction of the region as a heritage site itself implies relegation of people’s cause into the background. In other words, the region’s prominence as a global resource site and a wildlife sanctuary is what makes the people’s problems in this delta appear as only secondary and marginal to the considerations of wildlife and biodiversity conservation. The next section will look into the activities of two government departments, namely Sundarbans Affairs and Irrigation, especially their handling of the problem of marginalisation induced by riverbank erosion and displacement and how justice is delivered through governmental machinery. The last section deals with the people and their strategies for ventilating their grievances against justice delivered through governmental machinery.
SUNDARBANS: A PROFILE The region known as the Sundarbans7 forms the southern part of the Gangetic delta between the rivers Hooghly in the west of West Bengal and Meghna in the east, now in Bangladesh. The area consists of low, flat alluvial plains and is intersected by tidal rivers or estuaries from north to south and by innumerable tidal creeks from east to west. The swamps of the Sundarbans support one of the biggest tracts of estuarine forest in the world. The Sundarbans encompasses an area of over 25,500 square km, two-thirds of which lie in Bangladesh and one-third in India. The Indian part, with which I am concerned in this paper, is in the state of West Bengal (comprising of 19 blocks spread over the districts of North and South 24 Parganas (see Figure 4.1) and covers an area of 9,630 square km of which nearly half is forested. The reason why the region is famous today is because it is the largest natural habitat of Bengal tigers providing a home to nearly 271 of them (Directorate of Forests 2004: 34)
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The Sundarbans and Area of Fieldwork Map of Sunderban Biosphere Reserve
Source: Indian Sunderban: An Overview, Sunderban Biosphere Reserve, Wildlife Wing, Forest Department, Government of West Bengal, May 2004.
However, the fact less known is that the Sundarbans is also an abode of about 3.7 million people (Census 2001). Out of 102 islands in the Indian Sundarbans, about 54 are inhabited and the rest are notified as
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reserved forest. People living on these islands are mostly migrants from other parts of West Bengal or Bangladesh. The islands lying further south (on the margins of the forest) and closer to the Bangladesh border have migrants mostly from Bangladesh, with immigrants still crossing the border and settling into the Sundarbans. These islands on the southern fringes are parts of the active delta, being constantly configured and reconfigured by tidal movements in the rivers. The areas further up and nearer to Kolkata are parts of the stable delta. The stable delta, just south of Kolkata, has agglomerate, compact settlements that contrast sharply to the semi-nucleated, dispersed settlements of the active delta (Banerjee 1998; Jalais 2004). In the stable delta or in areas, which are connected to the mainland of West Bengal, prevalent modes of transport are rickshaws, motordriven three wheelers (often referred to as autos), buses and trains. However, the areas lying further south and surrounding the forests have mechanised boats (locally called bhatbhati) or non-motorised boats (dinghies) as the dominant mode of transport that connects otherwise isolated islands. Most of these islands have brick-paved roads which only allow cycle-vans (three-wheeled cycles with raised platform to carry goods as well as people) to ply. These roads are few and vans ply as far as roads exist. Beyond roads are mud embankments or bunds, which serve as pathways connecting one part of an island to another. People’s life on the southernmost islands revolves around the land, water and forest. Although agriculture remains a source of livelihood for the islanders, the brackishness of rivers makes agriculture unsuitable and uncertain. Winter cultivation is virtually non-existent for want of fresh water. Poor families—especially those having very little or no land—rely on rivers for marine resources such as fish, prawn or crab. Forest is an important source of livelihood for poor families. The families frequent the forest in search of firewood, wood, honey, and so on. People are engaged in livelihood activities that are not only physically demanding and challenging, but involve considerable risk. It is perhaps needless to say that the islanders risk their lives while entering the forest or fishing in rivers. According to the Forest Department’s estimate, about 150 people are killed by tigers or crocodiles every year.8 Women and children belonging to poor families are often attacked by sharks while drawing nets along the riverbanks in search of tiger prawn seeds, Penaeus monodon, the largest Indian marine prawn,
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farmed extensively in the region. Despite agriculture being an important source of livelihood a substantial proportion of the farming population belong to the category of marginal farmers and agricultural labourers. The islands lying further south and on the margins of the forest are inhabited predominantly by Scheduled Caste population. As mentioned earlier, these are the islands inhabited by migrants from Bangladesh. The majority of these migrants are found to belong to Scheduled Castes. The Sundarbans also has a sizeable proportion of tribal population. According to 2001 Census, 42 per cent of the whole population of the Sundarbans belong to Scheduled Castes and Scheduled Tribe communities as against 28.5 per cent for the whole of West Bengal (see Tables 4.1 and 4.2 for block-wise distribution of SC, ST and other population). Among the 13 Sundarbans blocks of the district of South 24 Parganas, Gosaba is one of the southernmost blocks (others being Basanti, Patharpratima, Kakdwip Namkhana and Sagar) where I carried out my fieldwork (see Figure 4.1). Gosaba block is composed of about 10 islands, all surrounding the Sundarbans Tiger Reserve, and has about 65 per cent of its population belonging to Scheduled Castes, 9.68 per cent to Scheduled Tribes and the rest (25.32 per cent) to Other Backward Castes (OBCs), the so-called upper-caste Hindus, Muslims and Christians (as per 2001 Census). This chapter is based on my research carried out on Kusumpur and Garantala9 islands of Gosaba block where the problem of embankment erosion and displacement assumes serious proportions. Apart from its Scheduled Caste and Scheduled Tribe population, Kusumpur island has a sizeable TABLE 4.1
Block-wise Distribution of Population of the Sundarbans in the District of North 24 Parganas Blocks Haroa Minakhan Sandeshkhali I Sandeshkhali II Hasnabad Hingalganj Total
Population
Scheduled Castes
Scheduled Tribes
Others
182,522 168,965 140,476 136,318 177,521 156,400 962,202
45,332 52,857 45,308 60,870 45,043 101,585 350,995
10,962 17,547 36,488 30,214 6,012 10,419 111,642
126,228 98,561 58,680 45,234 126,466 44,396 499,565
Source: Compiled from Census of India 2001 (Directorate of Census Operations 2005).
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Block-wise Distribution of Population of the Sundarbans in the District of South 24 Parganas Blocks
Population
Scheduled Castes
Scheduled Tribes
Others
Canning I Canning II Mathurapur I Joynagar I Joynagar II Kultali Basanti Gosaba Mathurapur II Kakdwip Sagar Namkhana Patharpratima Total
244,627 195,967 164,650 219,090 209,145 187,989 278,592 222,822 198,281 239,326 185,644 160,627 288,394 2,795,154
123,936 48,173 60,904 89,739 76,761 88,851 107,602 143,221 58,728 86,042 51,588 41,797 68,311 1,045,653
3,075 11,654 589 145 974 4,844 17,462 20,560 3,308 1,941 691 710 2,834 68,787
117,616 136,140 103,157 129,206 131,410 94,294 153,528 59,041 136,245 151,343 133,365 118,120 217,249 1,680,714
Source: Compiled from Census of India 2001 (Directorate of Census Operations 2005).
proportion of population belonging to backward castes (OBCs) from Medinipur mostly concentrated in Kusumpur village. However, the population of Garantala belongs predominantly to Scheduled Caste communities who are migrants from Bangladesh. It is quite apparent from the people’s livelihood options and the social composition of the population that people living in these blocks of the Sundarbans remain socially and economically neglected. The peculiar geography and landscape of this region is often cited as an excuse for the lack of effort on the part of the government to improve the material condition of the islanders such as strengthening bunds, building roads or installing electricity (Jalais 2004: 17). However, these statistical data are hardly indicative of the marginality of the islanders. People living in this delta live in a state of perpetual anxiety and uncertainty: what if the embankment collapses? Embankment-collapse and the subsequent flooding of rice fields can turn a farmer into a pauper overnight and render homeless several families instantly. However, the story does not end here. People remain marooned for days and months (depending on the remoteness of the island) until the Irrigation Department intervenes. What follows is further acquisition of land in the name of building protective
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embankments that result in further displacement of people. A question that arises at this juncture is, in what way the question of social justice is linked to the problem of embankment erosion, flooding and displacement in the Sundarbans, for riverbank erosion as a problem is not unique to the Sundarbans alone. It is to the consideration of this that I now turn in the next section of this chapter.
HERITAGE SITE
AND THE
PROBLEM
OF
MARGINALITY
The words of the fisheries minister Kiranmoy Nanda, with which I began my discussion in this chapter, are worth revisiting. Nanda expresses concern over growing population pressure on the Sundarbans’ ecosystem and in the same breath justifies tigers’ visit to the neighbouring islands in search of food. The Sundarbans Biosphere Reserve was launched to strike a proper balance between the human and nonhuman inhabitants of what is considered a unique ecosystem, but this balance is tilted in favour of the tiger. When people entering the forest or creeks get killed by tigers, it is justified through recourse to the argument that the people have been ‘intruders’. However, when a tiger strays into inhabited islands, killing humans and livestock, it is believed the animal is hungry. In many articles, like the one entitled ‘Vanishing Tiger’ by K. Chaudhuri in The Statesman, 13 October 2002, concerns are raised over how starvation is causing the death of these supreme predators. This clearly indicates whose site it is. The image of Sundarbans as a natural wilderness is based upon the recognition of the tiger as the legitimate claimant to the land and of the people as only intruders or mere ‘food’ for the tiger (Jalais 2005).10 It is something of a surprise that a region, which was largely a wasteland in the eyes of early colonists was to grow into a much vaunted resource site by the later part of colonial rule. The image of the delta as a natural resource site—a wonderland that is essentially unsuitable for humans— had been deployed historically by the governmental rationality during colonial and post-colonial era. We know that the Marichjhanpi incident—when the East Bengali refugees were denied settlement in the Sundarbans on the grounds that the place belonged to the tiger—is only a link in the chain of events that led to the consolidation of the Sundarbans’ image as a wildlife sanctuary.
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In 1973, the Sundarbans forest was declared a tiger reserve because it is the only mangrove tiger land in the world. In 1984 the Sundarbans became a National Park. Soon after that, in 1989, the Sundarbans was declared a Biosphere Reserve in which large stretches of mangrove forest, containing 64 mangrove species, the highest in a single area, had been conserved and wilderness maintained with its original ecosystem intact under the protective shelter of Project Tiger (Directorate of Forests n.d.: 3). In the same year the Sundarbans was declared a World Heritage Site for its unique ecological endowments. Much of the initiative concerning the Sundarbans development is based on an implicit assumption that the sustainable development of the Sundarbans is possible only if the natural habitat of the region is left to grow without hindrance, for the mystery of the delta lies in its being a place where the man-eating Royal Bengal tigers live as the jealous neighbours of the ferocious man-eating crocodiles and poisonous snakes, lizards, birds, sharks, honey-bees, and so on; the fury and beauty of the place has attracted the attention of tourists, ecologists and zoologists (Chattopadhayay 1999: 6). Thus, the Sundarbans is suitable for visitors, but terribly unsuitable for its human population. People’s visit to the forest is believed to destroy the forest resources and endanger tigers. Their fishing in the river is viewed as depleting marine resources and catching of tiger prawn seeds as being responsible for bio-diversity loss and the erosion of mangrove cover. The Forest Department of the Government of West Bengal in its reports defines catching of tiger prawns as a threat to the Sundarbans’ ecosystem (Directorate of Forests n.d.: 4) and as a destructive form of livelihood (Directorate of Forests 2004: 15). So the very presence of humans on the islands is a menace for the future conservation of the forested delta. According to a report in the Hindustan Times, 5 December 2002, a recent volume entitled Wilderness: Earth’s Last Wild Places, published by a team of over 200 international scientists, has identified the Sundarbans as one among 37 of earth’s most pristine areas critical to earth’s survival and where over-exploitation of resources and human settlement are seen to be posing a threat to the place. In the words of Herring, the central dilemma in the Sundarbans development is that, unlike the tribal forests elsewhere in South Asia, where the conflict is between the utilisation of an existing habitat cum common property resource and a historically novel statist claims to management, the shrinking
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mangrove forests have become an object of conflict between social forces seeking a livelihood and a state that seeks to limit that process (Herring 1987: 9). Rathindranath De, the Forest and Tourism Secretary of the Government of West Bengal, promoting the Sundarbans to tourists and visitors, writes that the shimmering tidal waters bordered by mangrove trees are like a world of fantasy. The visitor suspends normal time and embarks on a slow and lazy cruise against the tide along estuaries (De 1990: 1). In keeping with the needs of eco-tourism—a powerful concept in recent times—the Tourism Department has drawn up many programmes, such as an interpretation centre at Sajnekhali Reserve Forest, a turtle breeding centre at Bhagbatpur and Bakkhali and watchtowers in many places to view tigers. And more often than not locals are encouraged to be part of this grand conservation process while very little attention is paid to the problems they face in the delta. The construction of the Sundarbans as a heritage site and its preservation implies relegation of people’s needs to the position of secondary importance. Nowhere is this apathy more evident than in the government’s approach to the problem of embankment erosion and displacement. While the islanders live in perpetual anxiety and uncertainty, a view has gained currency in the government departments and among officials that the Sundarbans embankments are unsustainable largely because people originally settled in a place primarily meant for wildlife and, more importantly, did so before the land was sufficiently elevated by the natural process of silt deposits (Mondal 1997: 6; Kanjilal 2000). If people waited and settled later they would have had the land sufficiently elevated and not have needed protective embankments around their islands. It sounds as though people in the present day Sundarbans might as well be prepared to pay for the mistake the early settlers committed. Although the Irrigation Department does intervene during moments of embankment collapse and flooding, this view has powerfully shaped the orientation of bureaucrats and administrators looking after development in the region. In recent times, prawn seed catching has become a matter of much concern among the policy makers for its perceived contribution to environmental degradation in the region. All this seems in line with the increasing global concern about conserving biodiversity (Wilson 1995) and characterisation of biodiversity as a global public
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good (World Bank 2003). And the Sundarbans does provide a perfect site for bio-diversity conservation even when such a conservation drive runs contrary to the livelihood interests of the people living in the region. However, apart from its contribution to environmental degradation, prawn seed catching is also viewed as being responsible for frequent embankment collapse. It is believed that while fishing along the river banks the seed catchers disturb the siltation process at the bottom of the embankment and thereby weaken bunds at their base. This particular view—currently subscribed to by the state departments and local non-governmental bodies—suggests that, unless prawn seed catching along banks is stopped, bunds would continue to erode and people would continue to suffer. In a region where sources of livelihood are few and restricted, this kind of an approach on the part of the state only heightens islanders’ suffering and puts them at the mercy of ‘nature’. At this stage I turn to two government departments—Department of Sundarbans Affairs and Irrigation and Waterways—to examine how they address the problem of embankment erosion and flooding.
EMBANKMENT, PEOPLE AND JUSTICE: A CONSIDERATION OF THE ACTIVITIES OF GOVERNMENT DEPARTMENTS This section aims to examine the activities of two state departments, namely, Sundarbans Affairs and Irrigation and Waterways, and especially their approach to a problem as endemic as embankment erosion and flooding. I begin with an account of the Sundarbans Affairs Department (SAD) and then move on to examine the Irrigation and Waterways Department’s (IWD) approach to the problem, ending the section by throwing light on how embankment protection is actually carried out and justice delivered at the local level. Sundarban Development Board and the Sundarban Affairs Department The Sundarban Development Board (SDB), which currently is part of the SAD, was constituted in 1973 ‘for integrated and accelerated
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development’ of the Sundarbans region. The functions entrusted to the Board at the time of its constitution were: 1. Formulation of integrated programme for effective utilisation of local resources. 2. Coordination and supervision of execution of plans and various projects for the development of the region. 3. Review and evaluation of the progress of implementation and to make adjustment in policies and measures as the review may indicate (Sundarbans Affairs Department 2000: 4). The Board, in its formative stage, came under the Development and Planning Department (DPD) of West Bengal with the Minister-incharge of the Sundarbans Area branch of DPD being the chairperson of the Directorate. Apart from the minister as Chairperson, the Vicechairperson of the West Bengal State Planning Board (WBSPB) and three Members of Legislative Assembly (MLAs) from the Sundarbans area were ex-officio members of the Board. Although created for the very specific development needs of a region, the Board thrived almost incognito under the over-arching administrative structure of the DPD. Except for two short reports, both published in 1979, the department published no major account of the development activities of the Board. For many years the Board remained simply an adjunct of the DPD and the situation did not change for the better even after the Left Front came to power in 1977. It took the Board almost 23 years to publish its first development report in 1994. And it was only after the Directorate became part of the SAD in 1994 that the report was published. No wonder that in his foreword to the first Report S. S. Chattopadhyay, the then Secretary to the DPD, wrote: It is customary for a Government department to bring out an Annual Report regarding its functioning once a year. The custom has, however, become almost forgotten. It is, therefore, heartening that Sundarban Development Board has brought out an Annual Report on its own initiative. (Chattopadhyay 1994)
In the preface to one of its administrative reports R. P. Samaddar, former Member Secretary to the Board, described SDB as a ‘distinct development agency’ (Samaddar 2000) catering to the needs of the deltaic region. Yet the early history of the Board shows that no sooner was the Directorate (Board) formed, than it lost its credibility and initiative as a distinct development agency.
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The SAD, of which the Board is now a part, has so far published Administration Reports covering a period from 1981 to 2005. A recurrent issue, which runs through most of the administration reports, is that the Board since its inception has been plagued by scarcity of funds. The first development fund that came the Board’s way was from the World Bank sponsored International Fund for Agricultural Development (IFAD). These funds came around 1981–82 and continued till 1989. Under the IFAD-assisted project the activities of the Board were ‘restricted’ to: 1. Creation of sweet [fresh] water reservoirs through re-excavation of silted channels/village ponds, and by closing minor tidal rivers and creeks. 2. Improvement of drainage system by constructing a comprehensive drainage system consisting of master sluices, hume pipe sluices, excavation of main drains, and so on. 3. Improvement of village communication system through construction of brick paved roads, culverts, footbridges, small bridges and jetties. 4. Creation of brackish water fish culture, social forestry including mangrove plantation and providing agricultural support service during rabi11 season (Sundarbans Affairs Department 1994: 4). For the implementation of the IFAD-assisted scheme, the Board was strengthened by the creation of a few divisions such as engineering, social forestry, planning and evaluation, fisheries, finance and administration (Sundarbans Affairs Department 1994: 3). However, despite the creation of the above divisions, the function of the Board remained one of coordinating the activities of several other specialised departments (such as Public Works, Public Health Engineering, Forest Fisheries, and so on) at work in the Sundarbans. One of the two short reports prepared in 1979, much in anticipation of the IFAD funds in 1981–82, stated that the needs of the Sundarbans are special, because it is one of the most backward regions of the state (Sundarban Development Board 1979a: 9). The report further stated that the Board set up by an order of the state government is authorised to coordinate all development activities carried out in the Sundarbans by other state
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government departments (Sundarban Development Board 1979a: 74). It is perhaps somewhat surprising that the function of an agency created for dealing with the specific needs of the region is primarily one of coordinating development. Some years later in commenting on the need for such a Board S. S. Chattopadhyay, the then Secretary to the DPD, states in his foreword to the first report of the Board and also of the SAD: Sometimes questions are raised about the raison d’être for a separate agency of development when normal development activities are being carried out by different Government departments in the Sundarban[s] region. Those who ask these questions are not perhaps always aware of the magnitude of the task confronting development agencies in the Sundarban[s] region … the terrain is very difficult—inhospitable and inaccessible; much of the area is covered by forest infested with the notorious Royal Bengal Tigers …the Sundarban Development Board also is a model for harmonious working between the so called bureaucrats and technocrats, for, in this organisation generalists are working side by side with engineers, forest officers, agricultural scientists and statisticians. (Chattopadhyay 1994)
Later, in her preface to the third report in 1998, Mira Pande, Secretary to the Sundarbans Affairs Department, reiterates Chattopadhyay’s arguments in support of the Board. For Pande, the body is the result of special efforts on the part of the state government to bring about an ‘appreciable and consistent improvement in the conditions of the region along with the normal development activities which are being carried out by different Government Departments in the region’ (Pande 1998; italics added). However, these arguments fail to enlighten us about what constitutes the ‘special activities’ of the Board. Each development report lists the schemes that the Board implements. This includes: (a) providing infrastructure facilities like construction of brick-paved roads, culverts, jetties and bridges, sinking of tube-wells, and so on, (b) social forestry and tree planting, (c) setting up of small brackish water fish ponds and (d) agricultural extension programme (mainly rabi and kharif seed distribution to small and marginal farmers). However, in each of the above-mentioned domains the Board is merely duplicating the efforts and services offered by other government departments such as Public Works Department (PWD), Public Health and Engineering [(PHE) for infrastructure], the Forest Department (for social forestry
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and plantation), the Department of Fisheries (for brackish water fish and prawn cultivation) and the Department of Agriculture (for agriculture extension programme). Over the years there has been a substantial increase in the financial resources of the department. According to the officials of the department almost 80 per cent rise in budget of the department comes from National Bank for Agricultural and Rural Development (NABARD) loan under Rural Infrastructure Development Fund (RIDF). In 2004–05 the department received additional financial assistance of Rs 50 million from the Government of India (Sundarbans Affairs Department 2004–05) and the 12th Finance Commission of Government of India has given Rs 1 billion to the department to look into the problems of livelihood in the region. But so far the department has not come up with any comprehensive study on people’s livelihood in the region. Despite this increase in financial resources, the Board together with its department still remains a coordinating agency and its development initiatives are far from comprehensive. It is interesting to observe that the department, which collaborates with other government departments on various fronts (agriculture, social forestry, and so on), does not collaborate at all with the Irrigation Department around an issue as crucial as embankment erosion and displacement. A department constituted for addressing ‘specific problems of the region’ has failed to come up with a comprehensive rehabilitation policy for the displaced. A question that remains unanswered is, why does the Board keep embankment erosion and the human suffering consequent upon it out of its purview? ‘We don’t do embankments, Irrigation is there to take care of it,’ answered the Minister of the SAD, when interviewed. ‘But your department does coordinate the activities of many other departments at work in the Sundarbans,’ I said. ‘Yes, we do,’ he answered, ‘but irrigation is a huge science, the department is full of engineers and they are not going to listen to us.’ He further stated: Moreover, you must be knowing that people settled in the Sundarbans much before the siltation process was complete. If they had settled later they wouldn’t have required the embankments. No matter how hard you try, you cannot conquer nature. Once you claimed land from nature and now nature is claiming land from you.
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Under these circumstances the department’s agriculture extension programme, which consists largely in providing rabi and kharif seeds to farmers and popularising cotton and mushroom cultivation among the farming households, remains far from being a success. The question of sustainable agriculture is deeply connected to the ecology of the delta. With people continuing to lose lands and being forced to live on the edge of embankments, agriculture remains of marginal significance. The success of mushroom as a second crop in winter is also very limited. Women living in remote islands find it difficult to market their products even when they are trained in mushroom farming. Despite the minister’s repeated emphasis in the departmental budget speeches on mushroom’s protein content (Sundarbans Affairs Department 1993, 1994) the crop is yet to become a part of the diet of the islanders. In the absence of any demand for mushrooms in the region, its prospect as a second crop is unlikely to succeed in the long run. For the plan period 1996–2000, the Tenth Finance Commission had recommended a grant of Rs 350 million for the overall development of Sundarbans, and the SAD had been authorised to act as a Nodal Department for the said grant (Annual Administrative Report 2000: 3; italics added). Subsequently, the SDB had prepared an action plan for the utilisation of this grant. As a nodal agency it had clearly specified the departments that it would collaborate with. Paradoxically, the only department not mentioned in this report was Irrigation and Waterways, which seems to suggest that the department can continue to remain a nodal agency and attempt to do what it considers to be comprehensive development of the region without having to address an issue as endemic as embankment ero-sion and flooding. I turn now to a consideration of the ways in which Irrigation Department addresses these problems. Irrigation Department and Embankments in the Sundarbans Fifty-four inhabited islands in the Sundarbans have 3,500 km long earthen embankments surrounding and protecting them. Since 1960, soon after the abolition of the zamindari system, the protection and maintenance of the Sundarbans embankments has been the responsibility of the IWD which is under the charge of two ministers:
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a fully-fledged cabinet minister heading this department and a minister of state for irrigation and waterways. The IWD has an elaborate bureaucratic structure. A secretary, who occupies a position subordinate to that of the ministers and is responsible for the running of the entire Directorate, is the administrative head of the department. Then, the whole Directorate is divided into a number of functional zones or circles. However, the show is actually run by a host of civil and mechanical engineers who form the backbone of the department. Embankments in the Sundarbans and their maintenance come under the Eastern Circle with a superintendent engineer in charge of each circle. A circle is further divided into a number of divisions. An executive engineer is in charge of each division. A division is then divided into a few sub-divisions with a sub-divisional engineer responsible for each sub-division. Finally, a sub-division is divided into a number of sections and a section officer is appointed for each section. Embankments erode mainly due either to wave pressure or river currents causing breaches on the bed of the river. The protection of these embankments is financed by the ‘flood control’ sector of the departmental budget and under ‘flood control’ sector comes the ‘urgent development work’ in the Sundarbans. On paper ‘urgent development work’ includes the following: 1. Strengthening the embankment against wave pressure. 2. Laying bricks on the slopes of embankments and anti-erosion work. 3. Constructing new sluice gates and renovating existing ones to improve drainage conditions. 4. Building ring embankments (Irrigation and Waterways n.d.; author’s own translation). Although the Irrigation Department does anti-erosion work in the Sundarbans, in the department’s discourses of development some kinds of erosion are seen as more menacing than others. In the departmental budget speeches (1989 to 2000–2001) concerns have been expressed over the growing Ganga-Padma12 erosion in Malda and Murshidabad.13 A considerable section of the departmental budget proposal is devoted to an analysis of this problem. The minister
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considers this problem menacing because it not only engulfs thickly populated villages and results in the loss of fertile agricultural land, but endangers national property like railway tracks, National Highway 34, the Feeder Canal at Farakka Barrage and many places of archaeological, historical and religious importance (Irrigation and Waterways 1989, 1990, 1994). Therefore, an Action Plan for the prevention of erosion estimated at Rs 3.55 billion was presented for consideration of the Ministry of Water Resources, Government of India and the Planning Commission in 1992 (Irrigation and Waterways 1993). In 1998–99, 1999–2000 and 2000–2001, Rs 600 million, 225 million and 80 million were earmarked to tackle the Ganga–Padma erosion (Irrigation and Waterways 1998, 1999, 2000). Because the Ganga–Padma erosion is destroying national property, the minister suggests that this erosion be given national importance. However, the same department remains silent over the problem of erosion in the Sundarbans. Even after the disastrous cyclone of 1988 the department only mentioned the damage the cyclone caused to the department’s property, but did not bother to mention the lives that were lost in the cyclone. Since erosion here affects only the property of local people, not the ‘real treasure’ of the nation—the royal tiger, which lies hidden in the forests—it does not assume national importance. Closely linked to these differing notions of erosion is also the question of land acquisition. Every year in the annual budget proposal the minister-in-charge heading this department appeals to the state government to generate funds for the development and maintenance of big dams like the Teesta, Mahananda, Subarnarekha and Damodar Valley Projects. These dams, according to the minister, are of national importance and therefore he suggests that adequate attention be given to them. With regard to the Teesta Barrage Project in North Bengal, the minister repeatedly emphasises the need for land acquisition with suitable compensation (Irrigation and Waterways 2000: 8) to facilitate the speedy completion of the project. In this connection he requests the panchayat and the Land Reforms Department to cooperate with his department. A joint endeavour of these two departments, the minister suggests, would aim to shorten the time-consuming land-acquisition and compensation process and create a sense of identification of people with the projects (Irrigation and Waterways 2000: 8). In the Sundarbans, land acquisition also constitutes an integral aspect of embankment construction and maintenance. In the event
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of embankment collapse the Irrigation Department acquires land for the purpose of constructing a ring embankment. But in most cases the department unilaterally acquires land for the purpose of such embankment construction or even repair work. The Irrigation Department does not find it necessary to collaborate with the panchayat and Land Reform Departments to sort out the complex issues of land acquisition, compensation and rehabilitation. Here land is acquired on the pretext that such acquisition is necessary to provide a greater protection to the population. Embankment Protection: A Context for Understanding How Justice is Delivered Embankment protection can also be seen, to use Wade’s phrase, as ‘a specific context of governmental action in the countryside’ (Wade 1982: 287). Since the Irrigation Department operates through an elaborate organisation structure and field offices, the activities of these field officials are significant in that they demonstrate the working of the state at the local level. In recent times there has emerged a body of literature approaching the state from the point of view of how it functions in the wider society (Handelman 1981, Abrams 1988, Brow 1988, Nugent 1994, Gupta 1995, Fuller and Beneï 2001). By highlighting the everyday practices of the lower-level officials and functionaries the writers have drawn attention to the ways in which the state is made visible at the local level. It is this performative dimension of the state function that allows us to see how justice is meted out to the people at large. Here my account will be based on the fieldwork I carried out in Kusumpur and its neighbouring island Garantala. As stated earlier in this chapter, the northern part of Kusumpur village is erosion-prone with the rivers Matla and Goira eroding banks on both sides. Families living in this narrow stretch have survived four successive ring embankments. Each time a ring embankment was constructed it encroached upon people’s lands, ponds and even houses. As mentioned earlier there are about 130 families living in this narrow stretch of land (see Figure 4.2) and majority of them have no other place to go to. It is the place where Bhagirath, Tapan, Chandan and several others live.
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Erosion-prone Area of North Kusumpur
Source: Block Land and Land Reforms Office, Gosaba.
When a considerable stretch of embankment collapses, the obvious solution lies in building a ring embankment, which is normally built behind the old one that has collapsed. While the Sundarbans’ embankments may be ecologically unsustainable, the possibility of a ring embankment provides the engineers and contractors with an opportunity to make money. Since land acquisition is necessary for building new embankment, decisions about how much of land would be acquired or how far behind the existing embankment the new one would be built are left entirely to the discretion of the engineers. They justify such acquisition on the pretext that it is they who are better able to judge what is ‘good’ for the people. With the help of contractors, the engineers acquire land for the purposes of building such ring embankments. Needless to say that people living in the narrow stretch of north Kusumpur are victims of such land acquisition and ring embankments.
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The 1,500 Feet Wide Ring Embankment of Garantala and Adjacent 36 Acres of Land Acquired for that Purpose
Source: From the villagers who lost their lands.
On the eastern side of Kusumpur, right across the river Goira, is Garantala island of Gosaba block. In 1999 the embankment collapsed in Garantala island, which was under water for a month. The Irrigation Department issued an order and acquired more than 36 acres of land for the purpose of building a 1,500 feet wide ring embankment (see Figure 4.3). This rendered about 90 families landless and about 30 of them homeless. Soon after the embankment collapsed the villagers themselves decided to build a temporary protective embankment, which they said, would have required a much smaller area of land. However, when the villagers proceeded to rebuild that embankment, the Irrigation Department engineers and local panchayat leaders intervened, and the villagers were conveniently sidelined. ‘It’s a pact between the contractors and engineers,’ said Bharat Mondal, an aggrieved resident of Garantala, who lost all his land because of the huge embankment: The contractor employed about one hundred labourers. Many of the villagers who worked on daily wages did not get their payments, but the contractor
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had left with all his dues. The Irrigation has its own list of contractors. Contractors are selected on the basis of whether they are ready to give the officers a share of their profit. We pleaded with the engineers that such a huge ring was not required, but they refused to listen to us. All the officers in the Irrigation Office had taken money from the contractors.
The sub-divisional office of the Irrigation Department is located in Gosaba block. The sub-divisional engineer and section officers in charge are meant to provide emergency services in the event of a disaster, but when disaster strikes they are rarely to be found in their offices. According to the gossip doing the rounds at the tea-stalls of Gosaba, the engineers mostly remain on ‘sick leave’ or are busy persuading their seniors in Kolkata for their transfer to more coveted places. Usually, only a caretaker is there to look after the office. In the event of a disaster, people’s suffering is heightened when they come all the way from distant islands only to find that the engineers who are supposed to help them are away in Kolkata. After several failed visits, I finally managed to get hold of an engineer of the Gosaba Irrigation Office. When I reached the office it was 2:30 in the afternoon. The office was practically empty and I found the same person, whom I had encountered on my earlier visits to the place, sitting inside and dozing. He was from Kusumpur and worked in this office on a temporary basis. He woke up when I knocked on the door. Seeing me he smiled and before I could say anything he said, ‘You must be looking for Saheb.’ Pointing in the direction of a house next to the office he said, ‘He is in his house.’ I found Dinu, a dafadar 14 from North Kusumpur, sitting on the doorstep of the Section Officer’s house. Seeing me he gave an embarrassed smile. ‘Sir [Officer] is inside, should I go and call him?’ Pointing to the bottle in his hand, I asked him, ‘What is that?’ ‘I came to give Sir the honey he asked for,’ he answered. ‘It is difficult to get honey at this time, but I managed some.’ Meanwhile the engineer came out and asked me to take a seat on the small wooden bed placed against the wall of the balcony, which served as an entrance to the inner part of the house. The bed was covered in files and papers. The engineer cleared them to make some space for both of us. It was easy to see that he rarely visited his office and had effectively turned his balcony into his office. I sat on the cot with my back to Dinu who squatted on the steps outside. Seeing Dinu
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with the bottle the engineer said, ‘That’s very little, get some more,’ and then turning to me said, ‘My son loves honey. That is one reason why I wish I could stay here.’ ‘Why, are you leaving the Sundarbans?’ I asked. ‘Yes, after all this delay I finally got my transfer order,’ he answered. When I asked him about the Garantala embankment he was visibly annoyed. ‘See, this is the problem with these people. They do not appreciate what you do for them. It’s because of me that today it is only 1,500 feet, otherwise it would have been much more.’ He then turned to Dinu and asked, ‘Is it true or not?’ and without waiting for his confirmation continued, ‘I persuaded the divisional engineers and overseers not to acquire any further land. These people think that they would have constructed a better embankment. If the villagers can do everything why does the government need engineers and an irrigation office?’ Turning again to Dinu he asked, Is what I have said true or not? Anyway I have had enough with the Sundarbans. I will be leaving soon. I was here for seven years and let me tell you if you are here for more than two years you will end up having severe heart problems. Work here involves so much tension and anxiety… the less said the better.
The engineer started shaking his head in utter disgruntlement. During the conversation, Dinu was being used as a sounding board. The engineer knew exactly what his responses would be. Dafadars meant for supervising repair or construction work are recruited by the contractors of the Irrigation Department. Since local irrigation engineers are the key factors in the appointment of a dafadar they have to be assured of a constant flow of goods and services. It is the duty of a dafadar to keep his superiors happy, lest he run the risk of losing his job. Therefore, Dinu’s periodic visits with a bottle of honey and his preparedness to be at the beck and call of the engineers are indicative of the way state bureaucracy operates at the local level and also of the effects of the state on the everyday lives of the rural people (Gupta 1995) (I will have occasion to discuss Dinu in the next section of the chapter). During my stay in Kusumpur, the Divisional Engineer of Joynagar Division15 happened to pay a visit. I got the news while I was talking to the villagers at the embankment site in north Kusumpur. ‘How often do they visit?’ I asked. ‘Sometimes not even once a year,’ answered
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Monoranjan, who was busy repairing the slopes of the embankment. I further asked, ‘Why do you think he is coming?’ ‘Maybe, for an inspection, who knows,’ Monoranjan said, ‘come tomorrow and see for yourself.’ Early next morning, I went to North Kusumpur. The monsoon had already set in and it was raining quite heavily. The roads and embankments were extremely slippery and muddy. Villagers there had set up a makeshift tent on the embankment and were all waiting inside. I went into the tent and waited for the engineer, who was supposed to come at ten o’clock in the morning. It was a long wait and even around two o’clock in the afternoon there was no sign of him. I skipped lunch thinking that if I went for my lunch I would miss him. People around me became restless and many went home. Around five o’clock in the evening, we suddenly sighted a launch approaching the jetty at Kusumpur. As the launch stopped at the jetty, the section officer got off and came up to the crowd and said, ‘Saheb has come all the way from Calcutta and is too tired to meet you all now. Tonight he will stay at the Irrigation guest house at Gosaba and will come tomorrow morning for a visit.’ The engineer was seated on a chair on the launch deck and was happily chatting away with his colleagues. Next morning the launch came again and it was raining even more heavily than the day before. The engineer and his two subordinate staff (Overseer and Estimator) got off the launch but could not proceed further. They could not stand upright on the muddy slopes, let alone walk through the terrain. Ultimately they had to be lifted by the villagers and carried to the spots the villagers wanted them to visit. From their faces one could make out that they were in no mood to visit the site and desperately wanted to get back to the launch. The much-awaited inspection was over in five minutes. They told the Panchayat Secretary, ‘We have seen the spots. We need to get back to the Gosaba office to discuss it amongst ourselves.’ The above incident points to a lack of concern on the part of the so-called developers who do development in circumstances with which they are not familiar and avoid situations that have the slightest potential for questioning their wisdom. This reminds us of Hobart’s thesis. The idea of ‘underdevelopment’ itself and the means to alleviate the perceived problem are formulated in the dominant powers’ account of how the world is. The relationship of the developers and those to-be-developed is constituted by the developers’ knowledge and categories, be it the nation-state, the market or
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the institutions which are designed to give a semblance of control over these confections. (Hobart 1993: 2)
However, while considering the activities of developers as a category, we should also keep in mind the practices of those officials or functionaries who are more localised than their seniors. For example, the Section Officers or the Sub-divisional Officers based at the Gosaba Irrigation Office, who accompanied their superior officers during their visit, could walk through the muddy terrain with their trousers rolled up to their knees. It is their familiarity with the people and the terrain that allow them to use the resources that go with their office to their advantage. Dinu’s presence with a bottle of honey during my visit to the irrigation office is only a case in point. The view that the Sundarbans is essentially an inhospitable place inhabited by hapless villagers does not rule out the possibility of the state officials using their offices to their advantage or striking deals to earn quick money. It is this performative dimension of the state’s function that helps us see how ‘justice’ is delivered through governmental machinery. In this section, I have considered the functions of two government departments. It is quite apparent from the working of the SDB and the Affairs Department that the department does not have any comprehensive development agenda for the region. The organisation looks at agriculture, but in isolation from the problems such as land erosion and salinity, the problems people face on an everyday basis in the delta. When we turn to the Irrigation Department, we see that the problems of erosion elsewhere in West Bengal are viewed as more significant than those in the Sundarbans. Sustainability of the Sundarbans embankments comes low on the department’s development agenda. But what happens in the name of protection in the Sundarbans embankments is routine patch work or indiscriminate acquisition of land. I have documented specific instances of such acquisition and shown how justice is delivered to the islanders.
PEOPLE AND THEIR STRATEGIES: SURVIVAL, SUBVERSION AND PROTEST This final section focuses on the islanders and their strategies of survival in a place like the Sundarbans where living exposes islanders to the
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enormous risk of flooding and land erosion. And what makes their suffering unbearable (making injustice even more glaring) is the way justice is delivered through the state machinery. This section therefore reflects on the ways in which people confront the grandeur system of ‘justice’. In support of my argument I document two ethnographic evidences, one from north Kusumpur and the other from Garantala village, both places being mentioned earlier in this article. Ironically, embankments which spell disaster for the people can also be seen as a source of livelihood for the islanders. During my stay in Kusumpur I was a regular visitor to the erosion prone north Kusumpur where construction and repair work used to be undertaken by the Irrigation Department. And more often than not the department employed the villagers as labourers for construction and protection of the embankment. Thus, the villagers of north Kusumpur who are fighting land erosion with their backs to the wall find in this construction work a source of earning for their families as well. Carefully maintaining my balance on the slippery and muddy embankment, whenever I reached the construction site in the morning, I would find people already engaged in their day’s work. There were some working on the slopes of the damaged stretch of the old embankment, some digging earth from the nearby fields or riverbanks, some carrying earth to add to the new embankment under construction behind the damaged one and yet others trying to steal time away from their work to smoke. On one such day, I reached the construction site along the bank of the river Goira in North Kusumpur to find the workers waiting for some bamboo poles to arrive on the Irrigation Department boat. When finally they did come, a number of disputes arose with respect to their quality. One of the labourers ran down the slippery slopes of the embankment to where the boat was anchored and then shouted to his colleagues at work, ‘These bamboos are no good, they will not last long.’ Those standing on the embankment judging the quality of the bamboos from a distance shouted back, ‘It seems that they have not sent the number we have asked for. How many bamboos are there?’ They asked the irrigation employee (khalashi) 16 standing on the deck of the boat. ‘There are about seventy bamboos here,’ he answered. ‘But we asked for at least one hundred bamboos, what are we going to do with seventy?’ They discussed the matter with each other and then, turning to the employee said, ‘Take the bamboos back and tell the Irrigation people that we are not going to work with seventy bamboos.’
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The employee promptly answered, ‘This is what we have managed to get. If you cannot work with these it’s your problem.’ He then turned to Dinu, the dafadar sitting next to the workers, and asked him, ‘Why don’t you explain it to them?’ Dinu tried to reason with the workers saying: Start your work with seventy bamboos and we can ask for more later. But if you send this consignment back then the work will be stopped. The Irrigation SO [Section Officer], SDO [Sub-divisional Officer] and panchayat will then intervene and the situation will go beyond our control.
He spoke quietly to ensure that only the workers could hear him and not the khalashi standing at a distance. Dinu patted the shoulder of one of the workers who was the most vocal of all and said in a patronising way, ‘Why ask for trouble?’ It took Dinu some time before the workers finally agreed to work with only seventy bamboos. Soon after the bamboos were unloaded and the Irrigation boat had disappeared round the bend of the river, Dinu heaved a sigh of relief and took a second look at the bamboos. Smiling at me he said, ‘The bottoms are okay but towards the top the bamboos are weak.’ I asked Dinu about the use to which these bamboos would be put. Pointing to a pond behind a stretch of the newly built embankment, Dinu said that the bamboos would be required for reclaiming a portion of the pond by providing support to the new embankment. It would protect the embankment against water pressure during high tide and would prevent the pond from destroying the bottom of the new embankment. If the pond were not adequately reclaimed there would be a possibility of the earth of the embankment melting away into the pond. During the entire process of reclamation, Dinu, whom I introduced in the previous section of this chapter, was supervising the labourers while chatting with me. It is interesting to know how Dinu managed the dafadar’s job. He shared with me this fact when I met him in his house. Like many others he lived in the narrow stretch of land between the Matla and Goira rivers. Dinu’s house was in bad shape and severe cracks had appeared on the mud walls. Pointing to the cracks I asked him, ‘Are these due to the salinity in the soil?’ ‘Partly due to salinity and partly due to lack of maintenance, no money.’ ‘Why, now as a Dafadar you must be earning a lot?’ I asked.
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‘Well I needed this job,’ he replied and continued, But you know how I got it? First in order to get a certificate from the partypanchayat17 I had to give them a bottle of foreign liquor [whisky] and two chickens for dinner. Then I had to go to the Irrigation Office at Gosaba for their approval. There they asked for two bottles, as one was not enough. And on top of all this I had to run errands for the engineers for a month. I used to go to Gosaba Irrigation Office at ten in the morning, sit there and be at their beck and call the whole day and come back to Kusumpur at six in the evening.
‘Why did you take so much trouble, when you could have worked as a labourer and earned even more?’ I asked in surprise. ‘Oh no, you have not understood how labourers are paid,’ Dinu replied. He tried to explain, The money that labourers get is shared amongst ten, fifteen or may be twenty of them whereas whatever I get is mine. I need this money. I lost all my land due to an earlier ring-bund [ring embankments] construction. These engineers, contractors, party-panchayats are all making money. What’s the harm if I make some too?
Dinu’s narrative makes it clear why he tried to pacify the labourers when they complained about the quality of the bamboos. Dinu desperately wanted the supervisor’s job and he would seek to retain it at any cost. The way he handled the dispute shows that he was cautious and wanted to play safe in his dealings with the Irrigation people. Under no circumstances would he antagonise the Irrigation engineers and contractors, lest he run the risk of losing his job. However, this does not mean that Dinu was not sympathetic to the cause of his fellow workers who were also his neighbours. With them he had shared many anxious moments and survived four ring embankments. Like many others he too lost a substantial tract of agricultural land. The pond they were reclaiming belonged to Judhistir, who happened to be Dinu’s neighbour. Like Dinu, Judhistir had also lost land due to earlier ring embankments. His agricultural land of less than a bigha included this pond as well. He constituted a part of the labour force and ironically he himself carried earth from the riverbank the whole day to reclaim his own pond. Every time land erodes or an embankment collapses, it amounts to loss of private space—a space the villagers call their own. However, this sense of loss does not condemn them to a state of utter despair. Rather,
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it imbues them with a sense of urgency that has found expression in a variety of subversive acts. If contractors cheat labourers by not giving them their due payments or make profits by supplying bamboos or bricks of inferior quality, the latter in turn make up for their loss by selling the contractor’s property such as bamboos, bricks, and so on. They even deceive the contractors by not digging the amount of earth proportionate to their wages. In popular parlance this is often referred to as ‘stealing of earth’. I always found it difficult to understand how earth is stolen. Although I spent a considerable amount of time in the company of the labourers, I felt hesitant to pose this question. Finally, I decided to single out Kalyan and Shankar, both residents of North Kusumpur, with whom I had developed some rapport. On posing the question I noticed frowns on their foreheads, which soon disappeared when both started laughing and asked me in return, ‘Tell us something, is that also relevant for your research?’ ‘Yes, to a certain extent, but then I am also curious to know how earth is stolen. But if you don’t want to tell me, I won’t press you,’ I assured them further. To my surprise both drew near me and said, ‘It is not a question of us divulging a deep secret. We all do it. But do not tell others that we showed you.’ They took me to the riverside. Pointing to the square holes (chouko) on the riverbank one of them said: We make these holes to dig up earth for the bund [embankment]. Each of these square holes has to be ten feet in length, breadth and depth. We are paid per thousand cubic feet of earth dug up. Now most of these holes are inundated during high tide and remain filled with water even when the water recedes during low tide. When the construction work is undertaken afresh by the contractors we simply increase the length and breadth of the existing holes but we do not do them that deep. Because they are filled with water one cannot measure the actual depth of these holes.
Shankar looked at me and smiled. ‘If they can cheat us why can’t we cheat them?’ ‘But don’t you think by deceiving the contractors and engineers you are weakening the embankments and endangering your own existence?’ I asked Shankar. He replied: In any case there is not much to lose. We don’t have much ground left beneath our feet, do we, having survived four ring bunds [embankments]. It hardly matters if there is one more. Everybody makes money, what’s the harm if we make some too?
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At this point let us turn to Garantala island where the villagers lost their lands because of the 1,500 feet wide ring embankment. As mentioned earlier, there were about 90 families who lost their lands and of these 90 families about 30 lost their houses as well. These 30 families lived closer to the damaged embankment and therefore, could not save their houses. After being rescued by their neighbours they managed to build temporary makeshift houses on the embankment, a little away from the stretch where the bund broke. These people were given to understand by the village and block panchayats that soon after the protective ring embankment was constructed they would be relocated elsewhere on the island. However, even after the construction of that 1,500 feet wide embankment, which acquired more than 36 acres of land, these 30 families were made to continue where they set up their temporary houses. Despite their repeated visits to the local and block panchayat offices their situation did not improve. Even the victims’ appeals for compensation was ignored by the panchayat members on grounds that these 90 families already having turned the 36 acres of their lost land into a fishery and having started to earn from it, would no longer be in need of compensation. Almost 3–4 months passed and no help seemed to come their way. Meanwhile, the villagers decided to pursue their cause. By paying a surveyor at the local land records office they managed to procure a map of the 36 acres of their lost lands and visited the Land Assessment Collectorate in the district headquarter in search of compensation. They waited in vain in the corridors of power, got exposed to the complex legal procedures and also met middlemen (dalals, in local parlance) who proposed to act on their behalf in return for payment, but justice still remained elusive. ‘Now it was time for us to pull up our socks,’ said Ananta Mistry during my interview with him and others who were now settled in their new land in Charkhali on Garantala island. Charkhali was a government land lying to the south of Garantala island. It was largely a vacant land which had only a few families, migrants from Bangladesh, who were settled by the local RSP (Revolutionary Socialist Party, a partner of the Left Front in West Bengal, which has a strong electoral base in Gosaba). On being denied justice and realising that no help would come their way, Ananta and others, who lived on the embankment for nearly four months, decided to defy their fate. With the help of their friends and neighbours these 30 families set out at
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night and traversed a long winding path through the rice fields before they finally reached Charkhali and forcibly occupied the government land. They fenced their occupied land with bamboo poles as mark of their protest against governmental injustice. However, the local RSP panchayat set its face against such forcible occupation of land and next morning the RSP panchayat members demanded that the settlers evacuate the occupied land. According to Ananta and Ramen Baidya (another settler in Charkhali), the RSP leaders were almost threatening in their demeanour. But the settlers held on to their ground. They were supported by the local CPI(M) (which leads the left coalition in West Bengal) leaders who, I came to know, stood by these families in times of need and supported their initiative to settle in Charkhali. It is perhaps needlees to say that by providing support to these families the CPI(M) wanted to discredit the RSP and expand its base in an area where the RSP reigned supreme. But then CPI(M) political interests converged with the dire needs of these families and in this case this convergence of interests worked to the advantage of the settlers. The above discussion presents us with interesting facts about people’s resistance. Despite being victims of governmental injustice, the strategies the islanders resort to for ventilating their dissent are many and wide ranging. There are dafadars like Dinu who want to survive within the system and make the most of it. He is part of the labour force, yet also a representative of the Irrigation Office in Gosaba. He feigns ignorance when labourers sell the Irrigation’s property, but is equally alert to the task of not letting such activities assume proportions where his position as a dafadar is threatened. This surely does not alter the balance of power, but gives him an opportunity—especially when life in the Sundarbans offers one very little opportunity—to milk the system as much as he can till he feels that justice is delivered. The strategies of Kalyan, Shankar and their colleagues who work on the construction site are clearly subversive and remind us of Scott’s thesis about weapons of the weak (Scott 1985). The strategies such as selling of contractor’s property or ‘stealing of earth’ initiate a process whereby the limits of the order established by the powerful is tested. They prefer to outwit the engineers and contractors at their own game; these strategies are used to ventilate grievances and find a breathing space in a life that otherwise looks bleak. And at the end of the spectrum are the villagers of Garantala who forcibly occupied government land and celebrated their triumph over governmental injustice.
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SUMMING UP The chapter aimed to enquire into the social justice issues in the Sundarbans. The chapter has sought to achieve this by exploring a problem that is central to the survival of the islanders in this delta, namely land erosion, flooding and displacement. I have shown how marginality is thrust upon the islanders by virtue of their occupying a land meant for the royal tiger. I have argued that people’s suffering due to frequent embankment collapse coupled with the governmental apathy to people’s cause is what makes the Sundarbans a relevant case study. The construction of the Sundarbans as a heritage site has injustice built into it, for it implies relegation of people’s needs into the background. When people’s presence in the Sundarbans is viewed as being a major obstacle to the conservation of this site, it is obvious that their problems would remain unaddressed. I have shown how governmental apathy is manifested in the workings of the government departments concerned with Sundarbans’ development and embankment protection. Even when people’s problems are sought to be addressed, an ethnographic account of the specific instances of embankment protection shows that the way justice is delivered makes injustice all the more glaring. However, in exploring people’s perceptions of justice the study has refrained from indulging in cultural relativist fantasies. Rather, the islanders’ cries against injustice are found manifest in divergent strategies they employ to confront, subvert and even contest the governmental machinery. The villagers’ forcible occupation of the government land in Garantala, as discussed in the earlier section, indicates their momentary triumph over governmental injustice.
NOTES 1. The island where fieldwork was conducted is given a fictitious name. 2. Bigha denotes a local unit of measurement, which is roughly equal to a third of an acre. Although bigha does not constitute a part of the official system of measurement, people prefer to use this for calculating their cultivable land and other immovable property. 3. For the purposes of the confidentiality of the location of Kusumpur, the island across the river is also renamed.
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4. Bilan refers to marshy land where paddy is grown and bastu denotes the land where one’s house is situated. 5. Mangal refers to mangrove. Since the seminar mainly revolved around the Sundarbans ecosystem and mangrove vegetation, the volume was entitled Sundarbans Mangal. 6. Rs 40=1USD 7. I use the word Sundarbans, generally referred to in the plural, to denote the region composed of forests, inhabited mainland and islands and water bodies. However, government department such as Sundarban Affairs often refer to the region in the singular. 8. This figure was obtained from the Forest Officer at the Sajnekhali Reserve Forest. 9. Like Kusumpur this island is also renamed. 10. Jalais dwells on the islanders’ self-perceptions and looks at how the memory Marichjhanpi was evoked by the islanders to articulate their resentment about unequal distribution of resources between them and the tiger. For details see Jalais (2005). 11. Rabi refers to crops grown in winter whereas Kharif denotes cultivation during monsoon. 12. The Ganga is a major river of Northern India. Near Farakka in Murshidabad in West Bengal, the Ganga divides and flows in two directions: one into Bangladesh (called the Padma) and the other towards the south of Bengal (called the Hooghly). 13. Malda and Murshidabad are two districts of West Bengal, both being situated on the banks of the Ganga. 14. Dafadars are temporary labour supervisors recruited by the contractors in consultation of the field offices of the Irrigation Department in the Sundarbans. 15. Out of 3,500 kilometres long embankments in the Sundarbans, Gosaba block accounts for 372.5 kilometres. This particular stretch falls under the purview of Joynagar division. 16. An employee who belongs to the lowest rung of the government machinery. 17. The villagers often use the words together. This suggests that the everyday workings of the party and panchayat make the distinction that formally exists between them appear fuzzy.
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5 Prescribed, Tolerated and Forbidden Forms of Claim Making RANABIR SAMADDAR
THE NEW NATIONALIST IMAGINATION, DEVELOPMENT AND SOCIAL CONFLICTS
A
s we all know, development is not a conflict free process, nor has its history been free of claims and counter-claims. Before popular democracy arrived, development was not a virtue or mark of a nation, and therefore, though the ancient texts counselled the kings and princes to look after their subjects and prevent their ruin and death due to famines, tax burdens, and plunder of their means of subsistence by the royal officials, ‘development’ as a path of a nation and as a mark of ‘economy’ of the nation is a typical product of our time. With democracy has come our right to develop. In this sense, democracy and development were born at the same time. We should not be surprised that Smith, Ricardo, and Mill were all born in the time of the nations. Yet, the idea of development as a distinct character of a collective economy took time to strike roots. In the 19th century, industrialisation and economic development came at human costs and amidst century-long violent conflicts. Popular democracy had not yet been established; large numbers of people had to flee, perish and die in the metropolitan countries and the colonies for the countries to develop. Today the question is two fold: first, how can we ensure
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development, particularly in the coercive milieu of globalisation, in a dialogic way that addresses the claims and counter-claims in a society? Second, how do we ensure that our right to develop addresses, at the same time, our other rights, namely political, civil, social and economic rights? In other words, how do we reconcile development and democracy? I shall narrate on this issue the events of the last three months in West Bengal—the part of the country I live in—to reflect on these two great questions of our time. For the entire year of 2006, the West Bengal Chief Minister, Buddhadeb Bhattacharya, had used every opportunity to air his views that West Bengal required a quick march to industrialisation, that factors such as West Bengal’s past industrial decay, globalisation, current investment friendly atmosphere in the state, stable government, disciplined and skilled labour force and improvement in the agricultural sector in the last 20 years, had made this policy of quick march not an option but a compulsory step. Therefore he, his party (Communist Party of India, Marxist) and his government (Left Front Government) seized every opportunity to woo and welcome with promises and concessions each and every investment proposal from savoury and unsavoury sources. Consequently, the redoubtable industrial group, the Tatas, came forward to set up a car manufacturing plant in Singur, some 45 kilometres outside Kolkata, to the west of the metropolis. For this plant land was required, and the state government thence acquired 997 acres of land, thereby invoking a colonial Act, the Land Acquisition Act, passed more than a century before—in 1894. Though this was not required under the Act, the government wanted to demonstrate that the entire land had been willingly given over by the peasants to the government. Therefore it started securing consent letters, and on this, along with the issue of compensation, it held eight local meetings with village leaders, particularly with the leader of the section of villagers unwilling to hand over land. These meetings did not produce any effective result. The government, determined to complete the acquisition process within November so that the West Bengal Industrial Development Corporation could hand over the land to the Tatas, started to cordon off the acquired land in face of the continuing dispute and the increasing opposition of the villagers. The ruling Left Front held a meeting near Singur on the Durgapur Expressway on 29 November, and protesters of the villages
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where land had been acquired were beaten up and lathi charged by the police stationed there to prevent trouble, and on 30 November, Section 144 was clamped down in Singur along with the announcement that land acquisition process was on the whole over. The ruling party, the CPI(M), the main force behind the Left Front meeting in Singur, threatened the opposition with dire consequences if they persisted in ‘obstructing’ the industrialisation of Bengal. In return, opposition members of the Legislative Assembly broke tables and chairs of the Assembly, earning opprobrium from leaders, members and followers of the ruling party. Thus, from 30 November–1 December, trouble erupted with high visibility. The government claimed that the acquisition process had been completed on 28 November. In the next two days, processions in the villages of Singur became angrier. Police bandobust became massive. The leader of the opposition, Mamata Banerjee, along with several others, were prevented repeatedly from going to Singur: they were picked up mid-way by the police, and in protest the opposition called general strike in West Bengal for 12 hours on 1 December. Following this, the next day, on 2 December, the villagers of Singur made efforts from the morning to break the cordon and breach the line guarding the acquired area constructed and protected by the government with the help of armed police. Police unleashed lathi charge, hurled tear-gas, opened fire, injured several, some critically, and arrested many, including children, old, women and the infirm. Meanwhile, one had earlier died due to the earlier police action, and now a teenage girl active in the resistance movement in the villages was raped in the early hours of 19 December, then killed and then burnt on the field, presumably by the security forces there. Section 144, which had been clamped there under orders from the government as the month had started, continued for the entire month. The government completely banned the entry of the visitors there, including students and youth supporting the cause, other political activists, environmentalists, women’s rights campaigners and leaders, and said that it would not budge from police measures and strong arm tactics, because this was only a work of few mischief-makers, and that the overwhelming majority of villagers were behind the government because they knew that by giving their land away the villagers would only stand to gain, they would get training and eventually jobs, and so on. Thus police measures continued, there was also a coordinated
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media campaign in which oppositional stories were systematically ignored by the big media and declared as spurious by the government. Section 144 remained in place. Meanwhile, Mamata Banerjee, on 5 December—the day when the opposition had again declared a general strike—started an indefinite fast on the issue of return of land to peasants who had been unwilling to give away or had not given their consent at all. She also demanded the immediate withdrawal of police measures. And, of course, her main demand was that the car manufacturing plant site of the Tatas must be shifted somewhere else—and not in another high cropped fertile area. Initially, the ruling party, front and the government dismissed the fast as a gimmick and not worthy to be treated as a serious political or agitating step. Apart from taunts, banters, ridicules and dismissive comments, police bandobust was strengthened. The vast governmentcum-party-cum-media propaganda machinery started rolling in full earnest. It was argued: 1. First, the opposition was irresponsible by demanding that the Tatas should move out. 2. Second, their action was unnerving the industrialists and potential investors thereby harming the interests of the state. 3. Third, the villagers were not with the opposition, and the opposition was fomenting unrest in the villages with the help of outsiders, because the opposition was frustrated. 4. Fourth, other industrial lobbies were helping the opposition. 5. Fifth, the police was not harsh with the agitators, in fact the agitators were assaulting the police, and hence the police was doing whatever it was in ‘self-defence’, and that this was ‘their duty’. 6. Sixth, the government was transparent with all the data about acquisition of land. 7. Seventh, the government wanted to dialogue with the opposition on all issues, barring of course the issue of the plant site, though on other occasions it said that it was ready to dialogue on the issue of compensation and on nothing else, and that the fast was a blackmail and at the same time an incitement to the followers to become unruly. 8. And finally, the government was concerned with the health of the fasting leader Mamata Banerjee, which had started to
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deteriorate quickly after the 20th day, and therefore the government was issuing public appeals and several letters to her to withdraw the fast, and come to discussion with the government, while the government would concede as of now nothing save promising that it would discuss with the opposition. In this hardening of battle lines as the fast entered the 21st day, by which time the fasting leader had rejected several public and government appeals, including one from the union government, to end the fast while the fast had become an unprecedented public event, and the Maoist guerrillas had raided a running train within 200 kilometres of the city to snatch away the firearms of the armed police declaring that this ‘action’ was being ‘dedicated to the struggling peasants of Singur’ and threatening more reprisals in case the government continued with repressive policies in Singur—the life and death of one person lay in balance. Just as the fortune of the opposition movement in the state hung in balance, likewise the fortune of the defiant villagers lay in a similar suspended animation and, above all, loomed the core issue, namely, if the fundamental question of the legitimacy of the drive for industrialisation in this particular manner would remain relevant. These, in turn, reflected on some other issues of importance surfacing in the turbulence of December, such as: was this the precursor of a new type of popular politics? Did the movement signify the return of the land question to the centre stage of politics? And, finally, did the movement signify the overriding significance of the issue of justice in popular politics—the ubiquitous term signifying the excess, which remained after formal political formulations, declarations, and policies had exhausted themselves, the ethics remaining beyond law, or in this particular case signifying the contentious politics of land? Claims about the details of the land relating to land acquisition became shrill and extremely conflicting and confusing. While the government did not bring out any detailed report on the purpose, mechanism, state of acquisition and the terms and amount of compensation, it went on making several claims. Thus, it claimed that the plots claimed by the opposition to have been forcibly acquired had not been acquired at all; that it could at most verify if the compensation money offered by the government had been willingly accepted by the peasants and not verify if the land had been willingly given
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over by the latter; that the acquisition had ended on 25 September, land was vested with the government on 4 October, and mutated in the name of the West Bengal Industrial Development Corporation on 17 November, and the land would be handed over to Tatas’ possession by January 2007. The opposition, including a sizeable section of peasants, claimed that 462 acres of land had been forcibly taken in Singur, while the government claimed that 958 acres out of 997 acres had already been acquired on voluntary basis. Yet, the government claimed that under the Act under which land had been acquired, securing consent actually held no place. About receiving compensation, again conflicting claims were made. The government claimed that till 31 December compensation cheques were given out for 658 acres, while according to opposition, owners of only 23 acres of land had accepted compensation in December. In another claim, the government stated that till date, little above 10 per cent of the people who had earlier consented to accepting compensation had received money. If all these claims were not enough, the further question was: who was receiving compensation—the actual tillers of land, that is the sharecroppers, or farm labourers, or the poor peasants, or the owners or all, and if all, then in what proportions? Again, if compensation covered the range of this agrarian reality, did it take into account the cases where the farmers of substance had leased land from the poor owner-peasants? And who would get job and pre-job training as part of compensation, and how many? And finally on this displacement, massive if the area is considered—did law, protection delivery system and the system of justice, have anything to say? Clearly on the issue of law and legality, the opposition was on a losing ground, for these claims were political, by which I mean extremely physical, and law had washed its hands off such intricate questions of physical possession of land, life and livelihood. So when the month of December of 2006 ended, there was no legal resolution in sight. Political claims continued from all sides. The opposition leader had broken fast on the midnight of 28–29 December, but punitive measures remained in place. There was no discussion. There was no political resolution either. No one knew if the affair of Singur was closed or would be soon resolved; or irrespective of the way it ended if this would prove to be just the beginning of largescale agrarian disorder in the wake of statewide land acquisition on a massive scale by force, that is invoking the Act.
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OF
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If we have just foreseen the significance of the issues involved, at this juncture, I want to confess that an examination of these questions is not the aim of this article. My article aims to see amidst all the evidences and the vast repertoires of politics, popular movements and state management of these issues around Singur, how claims are made, how regimes react, how repertoires build up and how the ruling politics makes its preferences known for prescribed, if not, then tolerated forms as the second best, but certainly not for forbidden forms of claim making. This is of course not to say that these issues had no impact on claim making; indeed government claims were conceptualised and articulated in an overwhelming atmosphere of consensus on globalisation, the need for a quick and forced march towards industrialisation via the road of private capital, the need for the society (meaning one section of it) to bear the burden of this industrialisation, the necessity of displacing large numbers of population groups in the interests of development, the received history of reforms in China, and finally the consensus on the idea that at last the nation has been able to make a turn around and now the leap to phenomenal growth is around the corner. It is also important to examine the process of consensus building, because then we shall have a sense of the government’s ruthless sense of direction displayed in the month of December and the counter-claims of the opposition of the impending disaster. In fact, the argument for industrialisation was met from the beginning by the counter-argument about deliberation, careful planning, necessity to secure the consent of the peasantry and hence, the need for discussion with various peasant associations, the necessity of a wider dialogue on the roadmap to industrialisation, modernisation and prosperity and finally, the need to balance the industrial drive with agricultural stability and growth. The last factor became crucial for the shaping of the counter-claims, because this hinted at the unfavourable trends in agriculture in many parts of the country— farmers’ suicides in some states including West Bengal where deaths due to starvation had been occurring, widening disparity between agricultural and non-agricultural sectors, marked slowing down of the rate of agricultural growth, and ever deepening debt trap for the
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poor peasants, rural labour and, at times, the farmers. There was investment failure in agriculture; agriculture yielded in many places small volumes of trade, and there were disparities in public services such as education, healthcare, water supply and connectivity. All in all agricultural productivity was going down—a condition in which turning multi-cropped land over to industrialists created concern, anxieties, scare and panic (Vaidyanathan 2006: 4009–13). In West Bengal, a traditionally intensively cultivated state, this meant even more gloom and despair. According to one commentator writing in the midst of the turmoil of December, if by any reason (in this case by acquisition of land on a massive scale) the annual rice yield fell by about 200,000 tonnes, there was bound to be food shortage even in a normal year. While this drive for acquiring land promises to go on, government investment in education and public health has gone down, with the consequence that the quality of both education and public health has declined, and this state now overwhelmingly depends on agriculture, to the extent that only about 800,000 acres of land out of 21.9 million acres remain fallow for a greater part of the year, while the rest comes under seasonal cultivation. On the top of that, not all parts of the state have alluvial soil. Some have laterite, some acid and some saline, while the industrialists, including foreign companies, mostly want land in and around Kolkata, that is to say the alluvial soil of East Midnapore, Howrah, Hooghly, North 24 Parganas, Nadia, Murshidabad and Maldah. On the other hand, companies now want about 125,000 acres of land, and the government has already issued notices for acquiring about 44,000 acres of land mostly falling in the area mentioned. What will be the resultant displacement of life, habitation and resources? What will be the impact on land utilisation pattern and food production? And thus, what will be the result on the state’s self-sufficiency in rice, particularly when we consider the fact that in 1977 (the year of Left Front’s rise to governmental power) the per capita availability of rice was 419 grams and in 2006 it rose only to 454 grams? With reduction of arable land and an accompanying plateau in food grain production, what will be the impact on wage earners? Will the state have to import rice in addition to wheat, pulses and edible oil, particularly when we remember that in the state of West Bengal the production of food grains had increased dramatically by about 70 per cent from 1980–81 to 2000–2001, and then the production had started to decline (Ray 2006)? As the readers can
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see, the whole scenario is full of contentions, of claims and counterclaims of different sections tearing the political and administrative milieu apart. In this scenario let us now study the forms of claim making—the prescribed, the tolerated and the forbidden forms. But to do so, we have to see the nature of the regime which now faces these repertoires and under which the claims and counter-claims are now shaping up. Besides the reason of general structural and socioeconomic transformation, is there any specific connection between the regime and the way the claims for land were made? Of course, there is a significant weight of history as, in this case, songs and themes of the agrarian revolt of the late forties led by the communists of those times were now played out and sung repeatedly under the canopy sheltering the fasting leader and her group. Red banners freely mixed with other banners. Red Guards from universities were again on their way, after a gap of nearly 40 years, this time to the villages of Singur. And, an old litterateur of 80 years wrote a daily column in a mass circulation Bengali newspaper throughout the month reminding the readers that this was a government and a party traitor to their past. The question of land had come back from economists’ and historians’ chambers to haunt the current time. But the pure weight of history would not have done the trick. In this case, the possibility of the collective claim by the peasants of Singur of developing into full-fledged contention, depended on the nature, flexibility and the dialogic trends present in the regime. Besides, as always, in this case too, collective claim making depended on networks, existing solidarities, and other mechanisms including the factor of the availability of particular forms of claims. It is of course natural that collective clam making took time to develop in communist Bengal. For, the Left Front Government appeared as a high capacity regime. Coming to power in 1977 it was in many ways a break with Congress ways of governing. With widened mass base, a participating peasantry in local government business, close link between ‘developmental bureaucracy’ and ‘mobilisational bureaucracy’ (epitomised by the closeness between the BDO and the Panchayat Pradhan at the bottom, District Magistrate and the Zila Sabhadhipati at the middle, and Left Front, particularly the CPI(M) party leadership, and the government at the Writers’ Buildings at the top). The radical Left had been decimated in the 80 years of armed struggle, the Right was discredited and an organised party
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committed to discipline and development had lent its full strength to the government in power. With party cadre calling the shots in local administrative life, and the opposition of any type easily stopped and crushed, if necessary by killing few, many felt that the Left Front rule would never end. Since in many ways this was a modernising regime, calling into permanent use Bengal’s renascent past to bring into reality a new middle class with new cultural and symbolic repertoires (secularism, new theatre movement, progressive cinema, limited land reforms, Bengali education, spread of primary education, mid-day meal scheme, inter-caste dining, rural fairs for literacy and literary works, women’s education in district and other towns, and so on) and could boast of a disciplined labour force, that would die rather but not revolt if the massively centralised trade union leadership did not permit it, the state government got backing from successive governments at the centre. Besides, another factor rarely taken into account by contemporary historians of West Bengal is that of the decimation of the militant labour in the state in the eighties and early nineties of the last century in the wake of the closure of jute, tea, cotton and big and small engineering and tools manufacturing factories in the state. From Asansole to Durgapur, from Howrah and Hooghly to 24 Parganas workers committed suicides in large numbers in this period, their women became prostitutes, children were sold, many more returned and died back in their villages and acres and acres of vacant factory land today stand witness to the once mighty industrial units of West Bengal. Almost all workers’ protests were curbed or were of no use. In face of the offensive of bosses, workers retreated, and this—a silent counter—revolution in the industrial scenario and a silent passive revolution in the social scenario if we take into account the impact of this defeat of the workers on the middle class—ironically strengthened the capacity of the regime, for the capitalist bosses knew that they had the best government in power. They could not complaint of any serious misdemeanour from the government, while West Bengal underwent almost a structural change from the mid-nineties in the wake of the workers’ defeat and global opening of West Bengal. High capacity regimes are typically ones with extensive formal democracy, trust of the rulers or the ruling groups on the government, ordered ways of negotiations among groups, similarly ordered ways of interest representations to various organs of government, adjudication, and legislation and a capacity to deploy combinations in
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various measures of coercion, reward, resources and resolve to tackle contentious claims. West Bengal government not only shows regular regime features, it is a regime with a likewise high capacity. It displays both responsive and facilitating features—it can threaten (responsive) and retaliate, it can also reward people obeying it (facilitating). In short such a regime has marked preference for certain claims, also for certain ways of putting these claims forward. Also because of its democratic basis it tolerates some claim makings even though it may dislike them, but it certainly punishes the offenders, that is, those who resort to the forbidden forms of claim making. It has at times mixed its responsive and facilitating roles by combining repression and facilitation. Thus, while it responded to civil liberties forums in West Bengal on the issue of the abolition of death penalty by nonchalantly hanging a prisoner sentenced to death more than a decade back, it has acted as facilitator of several para-economic and cultural enterprises if they have been found to be of gain to the government. But, the bottom line is that the forms of claim making it prescribes and permits must conform to the given ways of negotiations and representation. What are these prescribed forms? Generally, as evinced in the month of December also, from the perspective of the high capacity democratic regimes, the preferred forms of claim making are reduced to rights to assembly, association, speech, and representing in constitutional ways the grievances—mainly in form of petitions and discussions confined mainly at the lower levels of government. Typically therefore, the local administration in Singur called the opposition to meetings about seven–eight times in the four months preceding December. The local opposition members of the area could attend, would get the honour of being invited to the DM’s (District Magistrate) chamber, but there was nothing that the DM could do if they did not fall in line. As the C.M. had said, Tatas would come no matter whether the opposition would come to an agreement or not. The opposition MLAs could visit Singur, raise questions in the Legislative Assembly and meet the Chief Minister or the Industries Minister if they so wished. But they could not, which they did much to the admonishment of society, break tables, chairs and destroy the files of the Assembly (30 November), for ‘Assembly was the mother of democracy’. But if the opposition played according to the rules set by the regime, then the government could think of facilitating the opposition too, by helping the latter to play the role of a loyal opposition. This would be possible when the
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government would be ready to help the opposition in various ways to the extent of sponsoring the latter, as happened with the big brother CPI(M)’s attitude to the small partners of the Left Front. These parties could certainly raise discordant points about land acquisition policy and methods of the government, air critical views, and claim that their suggestions were better. These were prescribed forms. The governmental capacity being high, the government can have a range of prescribed forms. What is more significant, the range of tolerated forms may become bigger. Yet as I shall show soon, we are now entering a slippery territory. Let us only say this much here, that the boundaries between the prescribed, tolerated and the forbidden forms may prove slippery if contentious claim making persists; also a high capacity regime may suddenly start showing weaknesses in face of a persistent claim. This is exactly what happened in the ‘velvet revolutions’ in East Europe. Regimes and contentious claims meet as adversaries and the contest may take different routes. Therefore, not only does governmental capacity matter, the persistence of claim making matters also. And as I already indicated, persistence depends on the state of resources for claim making, namely, appealing techniques, coercion, trust and network as a resource and finally, the regime’s attitude, which determines how much the claim making form has as a manoeuvring space—more importantly, the manoeuvring scope in the regime space at times. Thus, typically in December the Left Front government was paralysed from within because of discordant voices of the small partners, which encouraged the claim making to persist. Thus, the range of tolerated forms of claim making may increase dramatically. Throughout the month of December, almost each day some of the main streets of the metropolis and other towns were occupied and traffic stalled by angry young protesters, on one occasion bare-bodied, who would even lie down on the roads. After the fast was withdrawn and the administration decided to continue with Section 144 in Singur for another 20 days, there were processions in Singur unobstructed by the police. Trains were stopped at many places on several days; again the government did not intervene. There were three general strikes called by the opposition, which were by and large observed; and again the government had to tolerate. The regime, however, claimed that it was democratic, so while it would go ahead with its plans for regenerating West Bengal even at the cost of displacing and dispossessing peasants on a large scale, it would
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‘allow’ democratic protests to continue. And, in this case, what was democratic in the eyes of the government? Peaceful assemblies and actions of that sort—though, as I said—as the month of December progressed, the range of prescribed–tolerated increased. What about certain acts of vandalism? Again, the boundary seems blurred. The regime of course cannot permit them, because such acts (vandalism in the Legislative Assembly, stoning the showroom of Tata Motors, and the office of the West Bengal Industrial Development Corporation, the kicking of a boundary stone and throwing it away, torching of an office of the CPI(M) and a panchayat office, cutting of roads, felling trees, torching buses, police jeep, and so on— some in the early days of January 2007) challenge the regime directly. They pose counter-power. They pose the issue of justice in the way the Dalits have challenged governmental power in town after town by destroying property, particularly property bearing the marks of the regime. Yet, as December showed, these were tolerated, though not prescribed, because the regime knew that it was facing a persistent contentious claim. But clearly, some forms—particularly the ones characteristics of an upsurge—are forbidden in the way revolutions are forbidden by regimes. Therefore in this case when villagers tried to prevent the party fencing the acquired land in Singur, and in the process resisted the police party, this was a forbidden way of claim making. The police beat mercilessly, women and children were not spared, subsequently a girl was raped, killed and burnt, two committed suicide, large number of people were arrested from the villages of Singur, outsiders (except government leaders and police officials, and so on) were prevented from going there, even though outsiders by merely going there were not breaking Section 144, arbitrarily people were picked up from the road to Singur, and what was declared most forbidden was the tendency of the Naxalites ‘from outside’ going to the villages. This was a strange situation. Each of the actors was an outsider in Singur—the Tatas, the bureaucrats from the Department of Industries and the WBIDC, the Chief Minister who had been elected from another constituency, the state, political campaigners and the police. Yet, the only ‘outsiders’ forbidden to enter Singur were the radical youth, whose names and photographs were systematically picked up by some newspapers and TV channels as the intelligence arm of the regime. In this case thus, two forms were forbidden: (a) you must not actively resist the police
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and the party of order in the villages and (b) you must not bring in from outside ‘dangerous elements’, which could connect Singur to wider forms of claim making (think of the network that I mentioned) and different forms of action, thereby helping the claim to land persist. Both of these aspects showed the limits of the democratic regime, for which routine protest is an acceptable part of the game of claim making, but which would not tolerate anything that breaks the rules of the game. Who sets the rules of this game? Of course, the regime sets the rules. This is what we can call the democratic paradox or the democratic deficit. But, most importantly, what about the indefinite fast, that became ‘fast unto death’? Indeed, what is the position of death in contentious politics? Clearly, the opposition cannot kill as a form to make claim. But what happens when the opposition leader says that she is going to die, that is, kill herself, to press the claim? Law does not allow such deaths either. Law only allows deaths done by the state. But trying to kill oneself has a tradition that goes back to colonial days, hence we know the names of Gandhi, Jatin Das, Bhupendra Kumar Dutta or elsewhere, Bobby Sands.... People think of this as moral politics—Gandhi himself thought so—which may be the case. But in terms of claim making, fast unto death to press claim is terribly contentious. The regime thinks that it is an act of blackmail and putting pressure. The opposition thinks that this is the last, most risky and most contentious way to go ahead—a high wager, high dividend game—in the process of playing which the actor may die. Here, when Mamata Bandopdhyay started her fast, many ridiculed; when the fast went on and entered the closing days of the second week, pressure started mounting on the regime, yet the regime tolerated the action and did not resort to violent transfer of the fasting leader to a hospital, or lathi charge the hundreds and thousands of people assembled near the canopy, because it would have been too risky a step. It thought that the fast would end under pressure from various quarters persuaded by the regime’s posture of dialogue. But the juggernaut of claim making rolled on. The fast entered the third week. Now this was hovering between a tolerated form and a forbidden one. The regime’s high voltage postures, letter writings, repeated consultations, various intercessions, issues of statements, rallies, meetings, sit-in strikes and blockade of roads and trains, appeals to boycott of Tata goods and other demonstrations showed
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that the situation created by the indefinite fast was fast reaching the situation of a forbidden form, which meant some action would have to be taken by either of the adversaries to break the stalemate of which Gramsci had spoken once. Hurting both and hurtling down the road of full-blown contention, the fast epitomised all that I have mentioned here regarding the prescribed, tolerated and forbidden forms of claim making and their slippery boundaries. In this case, as local readers of this essay know, the fast ended with promise of dialogue but no concrete assurance of mitigating any of the major demands. But the claim has persisted. December may be only the remarkable first scene of a theatre, and a more contentious future may be waiting for us, may be a different kind of regime change than the ones we had witnessed 17 years ago in Europe. Post-colonial India may witness different claims and different contentions.
TURBULENCE
AND A
REGIME’S CONTROL CAPACITY
So, what are the lessons apart from the ones that came out from the above description? And this is where I differ to a critical extent from Charles Tilly whose writings on contentious politics over the years have taught us many things about popular politics, and whose ideas about regimes and repertoires have enriched our understanding of collective violence (Tilly 2006). For Tilly, democratic and non-democratic regimes have invariant meanings and therefore their boundary is inflexible. The result is a poorer reading of popular politics, as also a poorer understanding of the mix of regimes and repertoires that is constantly happening in contentious politics. But there is a greater difference between Tilly and me. Tilly refers almost ad nauseam to democracy (almost wholly Western) and forgets what is crucial in the encounter between regime and repertoire is the regime’s dialogic capacity, and not any inherently democratic capacitor. What are the lessons, then, that I think, can be drawn from the turbulence of December? 1. A regime’s capacity to control contentious politics depends to a great extent on its attitude towards different forms of claim making and their boundaries.
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2. The means of control by a regime over claim making depend partly on its institutional capacity, partly on its dialogic capacity. 3. Repertoires of claims can fast slip from one category to another (from prescribed to tolerated to forbidden), and there can be transformation in the nature of the forms. 4. Innovation in claim making accelerates as contention becomes acute. 5. Various incipient trust networks become active and contribute to the persistence of the claim. 6. The capacity-democracy space is marked by dialogic acts, proclivities, and trends. 7. Globalisation can make contention acute. 8. The number of claimants increases to the extent the repertoires of claim can become elastic and this increases in a variable way; thus the sudden beginning of fast brought a surge of protesters and claimants after the strong police action had seemed to quell the claimants. 9. Movement thus grows and becomes increasingly contentious as it keeps on producing streams of issues, actions, events, measures, and forces a regime to tie itself up in knots as the latter concentrates all its energy in quelling the movement. 10. Finally, collective violence reaches high level as on one hand the regime operation concentrates on coercive means and is unable to counter the coercion that claim making repertoires bring bear in the movement, and on the other hand the claim making forms reach a high degree of coordination and salience. These 10 particular lessons of December also tell us some general truths of politics, that is popular politics. It shows how politics can exceed governmentality due to what can be called the autonomy of politics, or the autonomy of the political subject, whose existence as an autonomous phenomenon paradoxically depends on, for lack of better term we can say, ‘unfolding’. This unfolding challenges the location of the regime as defined by the regime’s self-claim about its location; it may disallow a successful repeat of the previous trajectory of the regime in encounters with popular politics (in West Bengal, for instance surrounding and overwhelming a dissenting group of
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villages with enormous mobilisation from outside, called the ‘Keshpur Line’); it may create multiple centres of power; it can create a situation in which forms of claim making will arise increasingly from the bottom; and contention can change the shape of the regime, if not always the regime itself. Finally, this unfolding implies that the most forbidden forms of claim making may suddenly become a reality. Nothing is inherent in the fortunes of a regime’s control capacity or of a claim making form. As the month of December ended along with the end of the opposition leader’s indefinite fast, the government could have turned a new leaf by taking the following steps through initiating discussion at multiple levels and in a wide ranging way (with opposition, various trade union, peasant and village associations, other public bodies, sociologists, geographers, economists and other trade bodies), namely, formation of a land bank through a proper land map, transparent policy of inviting investment, more significantly an agreed compensation and resettlement policy with local consent of the people to be affected where land acquirement is absolutely essential, policy for utilising unused land of the factories closed for long and forever and finding out land in the dry areas and taking a new policy for reviving industries, particularly small units—in short, holding out the assurance that the dialogic path is the regime path and that, by taking that path and not being in an unseemly hurry, the regime loses nothing. Yet, the New Year showed no indication of turning a new leaf, even though the whole think tank of the party of order, called the Central Committee, was in session to frame policies for the nation. On the other hand, consider now these two events—one not connected with Singur but speaks volume of the regime’s control capacity, and the other connected to the claim making politics Singur represents. On the night of 31 December, as the year was ending, a group of army personnel raided the Park Street police station, occupied its premises, beat up the policemen, broke tables and chairs, tore telephone and other cables, and freed from lock up two of their colleagues just put there on account of alleged misbehaviour with women at midnight in Park Street—taking over the police station—a feat that the Army had not managed in the Northeast even. The fulminations of the state government ended in whimper in a day or two. Second, on 3–4 January, as the news of imminent land acquisition on a wider scale reached Nandigram, East Midnapore, where a Special Economic Zone was to be set up, thousands of peasants came out, drove away the
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police, administrators, and the party bosses of the area, threatened the government and the big man of that area Lakshman Seth, the CPI(M) M.P., with dire consequences if the regime persisted with its programme of displacement of the peasantry, burnt down offices, cut down culverts, roads, trees, and so on, to prevent the police from entering the villages, and declared their resolve by coming out in thousands men and women with spears, lathis and scythes, in the process losing several lives (by informal count 11, government figure six) in clashes. The government said once again, the notice had not yet come out, it was all a rumour and mischief of outsiders, once again these so-called outsiders being the radical youth, the Naxalites, who had ‘fomented and incited’ the villagers of Nandigram. In Kolkata, the same party general secretary, that is CPI(M), said that the state government had a definite policy of land utilisation and that the opposition was behaving irresponsibly, and once again people refused to believe the words of party functionaries and the government. Once again, a democratic regime showed no inclination to dialogue. Claim making assumed forbidden forms—some say it has been a peasant upsurge after long years in Bengal—after the incremental mutations in the form of claim making have been ignored by the regime. Contentions have risen; the connectivity of the forms of contentious politics has gone up, and December projected its long shadow into January and beyond.
DEVELOPMENT, DEMOCRACY
AND
BIO-POLITICS
Events progressed fast after 31 December. The takeover of land in Singur by means of Land Acquisition Act in the ‘interests of industrialisation’ was now to be followed by acquisition of about 10, 000 acres of land in Nandigram. On 4 January 2007, peasants in Nandigram, in the face of police bullets and para-military operations, dug up all approach roads to the heart of Nandigram and began conducting night vigil parties composed of women, children and men, to ward off any police entry. Police, armed party cadres and storm troopers tried to enter repeatedly for the next few days to bring the insubordinate villagers into submission. The government blew hot and cold at the same time. It said that it would not forcibly take away land from
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the farmers; therefore the villagers had no cause to fear. It further said that industrialisation was necessary, and that Maoists were fomenting troubles among misguided villagers. It also said that the villagers of Nandigram had taken the road of lawlessness, insubordination and the setting up of a parallel authority by establishing a muktanchal (liberated zone), which no administration could tolerate. Law and order had broken down there and the government would have to act sooner than later. Throughout January, the government prevented the entry of human rights activists in that area. Meanwhile, Singur was once again in flame. On 22 February, the peasants tried to break and uproot the fence that had cordoned Tatas’ land there, and police and the security forces mercilessly beat them. Arandhan (no cooking, no eating) was observed in houses of Singur in protest. On a High Court order, the government had to lift the prohibitory order Section 144. Opposition parties again started holding meetings there. Meanwhile, on 12 March, Haradhan Bag, a 62-year-old peasant of Singur, whose land had been taken away by the government to facilitate the small car project, committed suicide by consuming pesticide. In the eyes of the official communists and their government, this was another necessary sacrifice in the interests of industrialisation. Haradhan had exhausted other steps to prevent the forcible acquisition of land before he decided to end his life. On 25 September, he had been one of the demonstrators agitating in front of the Block Development Office and had been severely beaten up by the police. On the same day the government cleared another project by the Salims who were to set up their chemicals hub in Nandigram. On 14 March the government entered in a formal agreement with the Tatas, whereby the Tatas would get a Rs 2 billion loan for their car plant in Singur at a rate of one per cent from the West Bengal Industrial Development Corporation—a government agency—which would take a loan from the market to extend to the Tatas (The Statesman 2007). On the same day, finally, the government decided to enter Nandigram with full force. The result: at least 14 deaths according to official version, according to public, at least 50 deaths, with rest of the dead bodies being thrown into the Haldi River with some of the heads cut off the bodies to avoid identification of bodies. Some bodies were dumped in the morgue of the biggest hospital nearby, the Haldia Hospital, where anxious relatives were prevented from seeing the dead bodies to identify the missing near and dear ones.
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Of the people who died, a significant number consisted of women and teenagers, mostly Muslims and Dalits. On 15 March, the head of the government Mr Buddhadev Bhattacharya issued a statement in the Legislative Assembly where he said that killings were necessary to bring back the rule of law, though, to be sure, he expressed his remorse at the killings. On 16 March, again a general strike was declared by the parties of opposition, with the city of Kolkata in upsurge, and in various parts of the state offices of the party of order set ablaze, one deputy magistrate and other officials severely beaten up, buses torched by defiant crowd when the government forcefully tried to maintain the transport system and break the strike, and students and youth in large numbers everywhere coming out on streets in defence of the harassed and dispossessed, and the adamant peasantry unwilling to give up land. Meanwhile claim makings took on a violent turn in some other fields also in the following year, that is, in 2007, which quickly became known as the ‘ration revolt’ in the countryside. Protests against corrupt ration dealers were simmering in the villages of Birbhum, Bankura and Burdwan. Trouble first broke out on 16 September 2007, but things flared up three days later. PDS (Public Distribution System) dealers were accused of privately selling off government-subsidised wheat and rice at higher rates. In Mayureswar and Kirnahar of Birbhum district, about 250 km from the city of Kolkata, the houses of six ration dealers were set ablaze and their families assaulted two days later. Villagers looted property and food grains. An opposition political party, the Socialist Unity Centre of India (SUCI), called a 12-hour strike in the district to protest against corrupt ration dealers, but it was later withdrawn at the behest of local leaders. Protests were also reported from Bankura district, where they had first began. Villagers in Birbhum district continued violent protests. Then, a day after a man protesting against corrupt ration dealers was killed in police firing in the district, irate groups of villagers set on fire to PDS or ration shops, stores, and even attacked the houses of ration shop dealers in fresh areas of the district though there was no report of any death. But, a free-for-all prevailed in the district as people looted house after house and resorted to arson. Forces led by the Inspector General of Police (Western Range), Arun Gupta, found it extremely hard to cope with the situation as consumers went on looting the shops of ration dealers in Birbhum district. One protester, said to be starving for days, was
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shot dead by police on Monday during a similar demonstration in Kirnahar. But the police was still unable stop villagers across several districts from looting food supplies from shops. Villagers have also set fire to go downs and police vehicles, saying they were starving. Dozens of PDS franchisees surrendered their permits out of fear, while the police said they were investigating the allegations of hoarding. In any case West Bengal by now was repeatedly coming up in the list of hungry states of the country with sky rocketing prices of edible goods, and inefficient food supply to the needy. Earlier in the same year, an inquiry by the Union Government had found that most of the rural poor in five states were not getting subsidised food supplies regularly. It found that only 10 per cent of the rural poor were getting regular supplies in the remote villages of West Bengal. Protest finally spread to Burdwan district also. A man was killed and dozens of people were on the road on Wednesday after hundreds of people clashed with the police in Burdwan, accusing authorities of hoarding food stocks meant for the poor. Again, here also the poor villagers voiced the same complaint, namely, that the subsidised food grains and sugar meant for them were being diverted to regular markets and sold at huge premiums by corrupt PDS officials. At least 100 people, including dozens of policemen, were injured in clashes in the fourth week of September, against what locals termed as widespread graft in the government’s PDS. The district police chief, Peeyush Pandey, admitted deploying massive police force to bring the situation under control. Again, when the latest trouble broke out in Ketugram in the same district, witnesses said that one protester had been killed when police opened fire to disperse a mob, though the police said that they were still investigating how he died. The incident occurred when villagers had laid a siege on ‘ration dealers’ (as PDS agents are commonly referred to), and demanded compensation from them for insufficient supplies of wheat and rice. The police contingent had to be rushed to the spot to rescue the ration dealers; angry at the police action, the villagers had attacked the houses of ration dealers and hurled stones at the police. They also set fire to police vehicles. As things went out of control, police first resorted to a baton-charge and then opened fire. Yet protests did not stop. It now again moved to Birbhum district, where next Monday, a protestor, Ayub Sheikh, was killed in police firing outside a block office in Lavpur as political leaders were huddled inside the office as to how to contain the
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spreading agitation. Arson, looting and ransacking of ration shops were now reported with alarming frequency, so much so that as the SP Pandey added, ‘Ration dealers and their families are being given adequate protection’. Slowly, of course, the ration revolt that endured for a month went off the newspaper headlines, as Administration honed strategies to quell the unrest. Hunger remained, the fire of course died down in the festival month that followed. And we do not know when collective violence over hunger will reappear. Yet one thing is certain. Judging the way the public discourse in the state of West Bengal still makes itself known, it is still clearly one of development, and not one of claims or democracy.1 What would you choose to call this: a political problem, a law and order problem, a developmental question, an administrative bungling, a problem of democracy, or peasant stubbornness, compulsions of a coercive globalisation or all these combined? Whatever be the answer you may choose, one thing is clear, namely, the prescribed, tolerated and forbidden forms of claim making will remain, and development as a process and issue will not be exempt from this contentious dynamics. Economic rationality will make little sense here, or to be true will make no sense. The choice was always and will be political. Rulers will behave as rulers, ruled will respond as the ruled. In this fundamental division of society, these experiences such as the one narrated here make it imperative for democratic politics to take a dialogic turn, for we must remember that the rise of the political subject is irresistible, and democratic politics must now get rid of its deficit if it wants to remain relevant for those whose claims are ignored in the name of development. Yet we have the occasion to ask: what is this age that so glaringly demonstrates the divergence of the economic and the political? How do we explain the decline of the will, which leads, if possible, to a total denial of the significance of claim makings, as if society should henceforth be run on the basis of ‘economic rationality’ and not political will? This too is characteristic of modern democracy. We do not have the full occasion here to go into these characteristics of modern democracy. But I shall mention only two, and I hope they will provide glimpses into if I may use the phrase ‘the secret of the political will’ in an age when politics seems to have died down. One is the question of claim making in the age of bio-politics; second is the
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question of the divergent phenomena of electoral majorities and social majorities in modern democracies. Both are significant questions, and again we cannot go into their full implications. But at least we can make clear the line of further thinking as to what these two inquiries entail in terms of the interplay of democracy and development. First, let us see briefly the issue of bio-politics. One of the landmarks of both development and democracy, better developmental democracy, is the care by the government, in this case the Indian government, for human life, social (life) security arrangements, increasing governmental guidelines for every aspect of life, an appropriate population policy (in terms of number, composition, spread, socio-cultural characteristics, and so on)—in short, the power of the developmental mode and discourse over democracy, also the democratic stake in the paradigm of development. We can clearly see from the Indian instance how developmental democracy produces a specific form of bio-power and governmentality, which in turn influences the nature of democracy itself. The image of democracy that I have provided in the above pages is one of contentions, emergence of forms of collective claim making, which determine the relations of these collectives with their rulers. Development provokes to an increasing degree collective claim making as the core of popular politics, yet as I have shows here the particular forms of claim making are influenced and conditioned by the way people are ruled and the particular way sovereign power and governmental power have combined to rule people. We must therefore understand today’s specifics of ruling power and resistance. As we know, Michel Foucault, almost without preparing his readers for the turn in his thinking, had suddenly suggested an idea nearly 40 years ago in The Will to Know (History of Sexuality, Volume 1, 1990) that subsequently opened up for us new lines of inquiry into conditions of modern democracies and the relation of democracies to strategies of rule. He had titled the relevant chapter as ‘Right of Death and Power over Life’. In six dense pages, he had argued that while one of the privileges of sovereign power had been the right to decide life and death, a right that the sovereign needed when he felt himself threatened from enemies without and within, today wars bloodier than ever are waged not in the name of the sovereign, but in the name of the existence of everyone:
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… entire populations are mobilised for the purpose of the wholesale slaughter in the name of life necessity … It is as managers of life and survival, of bodies and the race, that so many regimes have been able to wage so many wars, causing so many men to be killed. (Foucault 1990)
These wars are meant to control, reinforce, optimise and exercise power at the level of life. Later, in the course of several essays he had developed the idea of power being exercised at the level of life—thus not only through war, in fact increasingly less through wars and violence—but through various life controlling and monitoring means and techniques. The aim of these has been to integrate life with an efficient system of control over society. One of the principal means of such aim has been to influence the mechanisms of life, such as birth, mortality, morbidity, public health, education, food pattern, and so on, by investing more and more governmental technologies in conditions of life. Life thus emerged as ‘a political object’ and claims emerged over ‘right’ to life, to one’s body, to health, and in general to the satisfaction of one’s needs. If this gave rise to ‘bio-power’, within this field of bio-power, bio-politics emerged as specific strategies and contentions over the place of body in politics, of collective human life in the production of forms of knowledge, regimes of authority, and practices of physical intervention to make life desirable, legitimate and efficacious. Bio-politics, as Foucault showed in Discipline and Punish (1995), meant at the end of day the physicality of politics. Nearly 40 years later, faced with this conundrum of development and democracy, and in trying to find out the effects of the combination of the two, we need to go back to some of these insights. Only then shall we be able to see for ourselves what these life controlling aids emerging out of the combination of development and democracy have produced in terms of new forms of power and new forms of resistance. We may ask, ‘what will be the result?’ The contested fields of development and democracy are more crucial and enigmatic than ever. There are several competing truth discourses on both development and democracy, and several locations giving birth to an array of authorities considered competent to speak that truth. All claims to developmental dem-ocracy speak for life, all speak of collective existence in the name of life, health and well-being; they are as if different bio-social collectives, characterised and known in terms of categories of identity, such as race, class (why not), ethnicity or gender. Therefore, life must be known in terms of certain collective identity, which the individuals
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can bring to work on themselves. In a way thus while development produces for democracy more choices at one level, the fundamental structure of society becomes one of control (as distinct from one of discipline)—control of life mechanisms, which becomes now possible precisely through the existence of development and democracy. Thus, with development bio-power as a mode of power is strengthened, because developmental issues affect society at the level of life; and democracy is the framework that forces development to reinforce biopolitical issues. Even though Foucault did not put the issue exactly in this way, when he discussed the related questions at length in Society Must be Defended (2003), but the historical phenomenon, which he was seeking to grasp was precisely this. In fact once when we extend this insight we shall realise that if for the ruler this means bio-power, for the subjugated and controlled it means forging resistance on issues that have life-stakes. If control over life is the name of the war on one side, defence of issues that can be called having great stakes in life becomes the name of the war on the other side. This is of course something that was never explainable by our conventional democratic theory. We have to turn only once the already yellow pages of Democracy in Asia 2 to see the cracks in the conventional democratic theory that India’s democratic experiences have produced. The point to note about these cracks in the conventional democratic theory is that they are caused as more and more life level issues appear out of the daily scenario of society as issues of democracy. In other words, bio-politics emerges (contrary to Paul Rabinow’s opinion) not on the basis of a separate bunch of issues, lending to bio-political control; bio-politics emerges as politics becomes increasingly biologised, as daily issues transform into life-level issues, as collectively they create a situation where our biological existence appears to be in a crisis. It is in such situation that the economy of democracy seems to be caught in contentions. In the wake of globalisation-induced development simple economic facts transform into bio-political facts. Second, let us see briefly the significance of the divergence of two phenomena of electoral majorities and social majorities in modern democracies, as in India. As government introduces more reforms, reforms enable the emergence of new technologies—at once legal, political, ethical and bio-political. As deep technologies take root the culture of dialogue weakens and recedes; government strengthens. Thus
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government economists can now argue that if in the 19th century millions had to pay the price for industrialisation in the West, so must be the route today for India. New technologies can bring back, in this way, old designs, albeit with changes. Thus, ‘expropriation’—the word made famous by Marx—indicates today bio-political choice. Peasantry needs to be expropriated; small landed property and small agriculture must be expropriated by corporate business, technologies must abolish workers, their stations, and stages of labour; certain varieties of food items must vanish and certain others must now be introduced; certain garments have to go, certain others have to come, certain seeds or cultural items must vanish or wither and the genetically modified seeds industry or the culture industry must now occupy the place, and finally the acceptance of Victorian famine like conditions must reappear as the companion to globalisation. To map the choices now being made by the nation to attain development means to map the bio-political possibilities or deficits of each choice induced by international capital, marketing strategies pursued by their writers, campaigners, and intellectuals, who are the carriers of intellectual property rights, as well as new links between life choices and extant forms of knowledge production and geo-politics, with the consequent increase in already massive inequalities in even basic healthcare. Yet, reforms increasingly take this path nominally legitimised by elected majorities. Social majorities construct themselves on these life-staking issues—uncertain, fragile coalitions, yet no less reminder of that other word made famous by Marx, class—that social group, which would have nothing, stands condemned to history, and fights for life. We are now in a position to reflect on the specific pattern of resistance emerging today, which can suggest answers to many of the questions, posed by contemporary time. The fact that (a) globalisation has not promoted dialogues; on the contrary in recent years the so-called growth ideology has provoked a new type of response and resistance—linked to issues of life—precisely because globalisation has emboldened the state to take unilateral decisions concerning the life of millions of people (thus starvation deaths cannot be sourced to any organ of responsibility); (b) new forms of collective claim making precisely on these life-issues have emerged and are pressing for legitimisation; (c) consequently, Indian democracy, under conditions of globalisation, is moving towards a redefinition marked by ideas of justice (allocative, re-distributive, restorative, transitional, and so on)
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rather than by party system, votes, courts, press, federalism, and so on, and (d) thus, all of these in the present situation re-defining the civil and the political, and thus impacting on the nature of the democratic institutions shows that India has now not only re-formed and reforged a regime of power in the wake of globalisation, but that our democratic collective is also being reshaped by social majorities which are not deterred by the gross inadequacies of our representational system and are occasioned by what Pierre Rosanvallon calls the ‘growing dissociation of legitimacy and trust’ in his description of the rise of social majorities (Rosanvallon 2006: 238). I admit that we need to spend much longer time on these issues. But I am sure that each one of us will be emboldened by events of our time to visit them and draw deeper lessons.
NOTES 1. On the rural protest in West Bengal, see the chronicles in
[email protected] on behalf of Palash Biswas. 2. Diamond et al.’s (1989) Democracy in Asia is a product of a huge comparative study funded by the National Endowment for Democracy, that began in 1985 and continued for two years.
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Department of Labour. 1994. ‘Plantation Workers in West Bengal,’ Labour Gazette, Special number, Government of West Bengal, Calcutta. Diamond, Larry, Juan Linz and Seymour Martin Lipset. 1989. Democracy in Asia. New Delhi: Vistaar Publications. Directorate of Census Operations, West Bengal. 2005. Primary Census Abstract: Total Population Census of India, 2001. Delhi: Controller of Publications. Directorate of Forests. Undated. Sundarban Biosphere Reserve. Calcutta: Government of West Bengal. ———. 2004. Indian Sundarban: An Overview. Sundarban Biosphere Reserve. Calcutta: Government of West Bengal. Donzelot, Jacques. 1991. ‘Pleasure in Work’ and ‘The Mobilization of Society,’ in Graham Burchell, Colin Gordon and Peter Miller (eds), The Foucault Effect. Chicago: University of Chicago Press. Fairtrade Standards for Tea for Hired Labour. 2005. Fairtrade Labelling Organizations International. Foucault, Michel. 1990. The Will to Know (History of Sexuality, Volume 1), trans. Alan Sheridan: Vintage Books. ———. 1995. Discipline and Punish. New York: Vintage Books. ———. 2003. Society Must be Defended. New York: Picador. ———. 2007. Security, Territory, Population (Lectures at the College de France, 1977– 1978). Graham Burchell (trans.). Basingstoke, Hampshire: Palgrave MacMillan. Fuller, C.J. and V. Beneï (eds). 2001. The Everyday State and Society in Modern India. London: Hurst and Company. Generic Fairtrade Standards for Hired Labour. 2005. Fairtrade Labelling Organizations International. Generic Fairtrade Standards for Small Farmers’ Organization. 2005. Fairtrade Labelling Organizations International. Ghosh, Benoy. 1973. Vidyasagar O Bangali Samaj (in Bengali) [Vidyasagar and the Bengali Society]. Calcutta: Orient Longman. ———. 1979. Banglar Nabajagriti (in Bengali) [The Renaissance of Bengal]. Calcutta: Orient Longman. Gupta, A. 1995. ‘Blurred Boundaries: The Discourse of Corruption, the Culture of Politics, and the Imagined State,’ American Ethnologist, 22(2): 375–402. Handelman, D. 1981. ‘Introduction: The Idea of Bureaucratic Organization,’ Social Analysis, 9: 5–23. Herring, R. 1987. ‘The Commons and Its “Tragedy” as Analytical Framework: Understanding Environmental Degradation in South Asia,’ The Commons in South Asia: Societal Pressures and The Environmental Integrity in the Sundarbans, a workshop held at Smithsonian Institution, Washington DC, 20–21 November 1987 (website: www.smartoffice.com/Tiger/Herring.html). Hindustan Times. 2000. ‘Sundarbans among 37 Pristine Areas ‘Critical to Earth’s Survival’, Hindustan Times, Calcutta, 5 December. Hobart, Mark. 1993. ‘Introduction: The Growth of Ignorance?’, in Mark Hobart (ed.), An Anthropological Critique of Development: The Growth of Ignorance. London: Routledge. Hudson, Barbara. 2003. Justice in the Risk Society. London: Sage Publications.
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Irrigation and Waterways Department. Undated. Sundarbaner Bhumikshoy o Nadibund Rakshanabekshane Sech o Jalapath Bibhagh (The Irrigation and Waterways Department in Matters Concerning Land Erosion and Maintenance of Embankments). Calcutta: Government of West Bengal. ———. 1989. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1989–90. Calcutta: Government of West Bengal. ———. 1990. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1990–91. Calcutta: Government of West Bengal. ———. 1993. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1993–94. Calcutta: Government of West Bengal. ———. 1994. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1994–95. Calcutta: Government of West Bengal. ———. 1998. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1998–99. Calcutta: Government of West Bengal. ———. 1999. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 1999–2000. Calcutta: Government of West Bengal. ———. 2000. Budget Speech of the Minister-in-charge of Irrigation and Waterways Department 2000–2001. Calcutta: Government of West Bengal. Jalais, A. 2004. People and Tigers in the Sundarbans. Unpublished Ph.D. dissertation. London School of Economics, University of London. ———. 2005. ‘Dwelling on Morichjhanpi: When tigers became “citizens”, refugees “tiger-food”,’ Economic and Political Weekly, 40(17): 1757–62. Kanjilal, T. 2000. Who Killed the Sundarbans? Calcutta: Tagore Society for Rural Development. Marx, Karl. 1976. Capital. Vol. 1. Moscow: Progress Publishers. Mitra, Satishchandra. [1922 (1965)]. Jasohar-Khulnar Itihas (in Bengali) [The History of Jessore and Khulna]. Calcutta: Dasgupta and Company. Mondal, G. 1997. ‘Sundarbaner Nadi O Samasya’ (in Bengali) [Sundarbans’ Rivers and Problems], Sechpatra 3(1, January–March). Morton, A.L. 1974. A People’s History of England. New York: International Publishers. Mukhopadhyay, Bhudev. 1981. Samajik Prabandha Edited by Jahnavi Kumar Chakrabarty. Calcutta: West Bengal State Book Board. Nanda, K. 1999. ‘Sundarbans—A Unique Ecosystem: Now it is Threatened,’ in D.N. Guha Bakshi, P. Sanyal and K.R. Naskar (eds), Sundarbans Mangal. Calcutta: Naya Prokash. Nugent, D. 1994. ‘Building the State, Making the Nation: The Bases and Limits of State Centralization in ‘Modern’ Peru,’ American Anthropologist, 96(2): 333–69. Pande, M. 1998. Foreword to Annual Administrative Reports 1996–97, 1997–98, 1998–99. Department of Sundarban Affairs, Calcutta: Government of West Bengal. Parry, J.P. 2000. ‘The “Crisis of Corruption” and “The Idea of India”: A Worm’s Eye View,’ in I. Pardo (ed.), The Moral of Legitimacy. Oxford: Berghahn Publishers. Rana, Kumar, A. Rafique and A. Sengupta. 2002. Pratichi Education Report 1 (with an Introduction by Amartya Sen). New Delhi: TLM Books, in association with Pratichi trust. Rana, Kumar. 2004. ‘The Possibility of Mid-day Meal programme in West Bengal.’ Paper presented at the workshop on West Bengal: Challenges and Choices, organised by the Centre for Social Studies, Kolkata, 27 and 28 July.
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Rana, Kumar. 2005. ‘Food for Thought,’ The Little Magazine, 6(2). ———. 2006. Khandita Unnayan: Jhargram Mahakumar Ekti Ruprekha. Mimeograph. Rapaj, T.K. 1994. Hajaribagreah Itihas. Calcutta: Chai Champa Publications. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Ray, Bibekannanda. 2006. ‘Thus Capital,’ The Statesman, Calcutta, 17–18 December. Robbins, Lionel. 1935. Nature and Significance of Economic Sciences. London: Macmillan. Rosanvallon, Pierre. 2006. Democracy—Past and Future. New York: Columbia University Press. Samaddar, R. 2004. ‘Autonomy and the Requirements of Minimal Justice’, in The Politics of Dialogue—Living under the Geopolitical Histories of War and Peace, Aldershot: Ashgate. ———. (ed.). 2005. The Politics of Autonomy—Indian Experiences. New Delhi: Sage. ———. 2007. ‘The Agenda of Justice in a Historical Cast’, in Samir Kumar Das, Sanam Roohi and Ranabir Samaddar (eds), Dialogues on Justice: A Report by Calcutta Research Group. Calcutta: Calcutta Research Group. Samaddar, R.P. 2000. Introduction to Annual Administrative Reports 1996–97, 1997–98, 1998–99. Department of Sundarban Affairs, Calcutta: Government of West Bengal. Sarkar, R.L. and M.P. Lama (eds). 1986. Tea Plantation Workers in Eastern Himalayas—A Study on Wages, Employment and Living Standards. Darjeeling: Indian Institute of Hill Economy. Scott, J.C. 1985. Weapons of the Weak: Everyday forms of Peasant Resistance. New Haven and London: Yale University Press. Sen, Amartya. 1999. Development as Freedom. New Delhi: Oxford University Press. Sen, Dinesh Chandra. [1935(1995)]. Brihatbanga (in Bengali) [Greater Bengal]. Vol. 2. Kolkata: Dey’s Publishing. Shklar, Judith. 1990. The Faces of Injustice. New Haven: Yale University Press. Sundarban Affairs Department. 1993. Budget Speech of the Minister-in-charge of Sundarban Affairs Branch, Development and Planning Department 1993–94. Calcutta: Government of West Bengal. ———. 1994. Annual Administration Reports 1981–82 to 1991–92. Department of Sundarban Affairs, Calcutta: Government of West Bengal. ———. 1994. Budget Speech of the Minister-in-charge of Sundarban Affairs Department 1994–95. Calcutta: Government of West Bengal. ———. 2000. Annual Administrative Reports 1996–97, 1997–98, 1998–99. Department of Sundarban Affairs, Calcutta: Government of West Bengal. ———. 2005. Annual Administration Reports 2004–5. Department of Sundarban Affairs, Calcutta: Government of West Bengal. Sundarban Development Board. 1979a. A project report prepared by the Sundarban Development Board and the Working Group of Government of West Bengal in collaboration with Central Project Preparation and Monitoring Cell Ministry of Agriculture and Irrigation, Government of India. Calcutta: Sundarban Development Board.
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Sundarban Development Board. 1979b. Sundarban Region—Development Activities Carried out by the Sundarban Development Board: A Profile. Calcutta: Sundarban Development Board. The International Labour Office. 1989. ‘Socio-Economic Conditions in Plantation in India: Proceedings of a National Tripartite Workshop, 1889,’ Geneva: ILO. The Statesman. 2002. ‘Indo-Bangla effort to save the Sunderbans,’ The Statesman, Kolkata, 4 April. ———. 2007. Kolkata, 15 March. Tilly, Charles. 2006. ‘Prescribed, Tolerated and Forbidden forms,’ in Regimes and Repertoires. Chicago: University of Chicago Press. Vaidyanathan, A. 2006. ‘Farmers’ Suicides and the Agrarian Crisis,’ Economic and Political Weekly, 23 September: 4009–13. Wade, R. 1982. ‘The System of Administrative and Political Corruption: Canal Irrigation in South India,’ Journal of Development Studies, 18(3): 287–328. Wilson, E.O. 1995. ‘Loss of Biodiversity.’ In Meeting the Challenges of Population, Environment and Resources: the Costs of Inaction, A Report of the Senior Scientists’ Panel, Third World Bank Conference on Environmentally Sustainable Development (ESD proceeding series no. 14). Washington DC: World Bank, 4–9 October. World Bank. 2003. ‘Sustainable Development in a Dynamic World: Transforming Institutions, Growth, and Quality of Life.’ World Development Report. Washington DC and New York: The World Bank and Oxford University Press.
ACTS
AND
ARTICLES
Plantation Labour Act. 1951. Land Reforms Act. 1979. The Constitution of India. Article 31A (inserted by the First Constitution Amendment Act 1951, and Fourth Amendment Act 1955). The International Covenant on Economic, Social and Cultural Rights. Article 11, Para 1.
WEBSITES
[email protected] http://mcrg.ac.in/Dialogues_on_Justice.pdf
About the Editors and Contributors THE EDITORS Pradip Kumar Bose is a Professor of Sociology, Centre for Studies in Social Sciences, Calcutta. A leading sociologist of the country, an expert in research methodology, and, above all, a superb essayist. His writings in English and Bengali on tribes, castes and families in Bengal are widely read. His work on the cultural history of Bengal has been equally significant. Among his works are Classes in Rural Society: A Sociological Study of Some Bengal Villages (1984) and Classes and Class Relations among Tribals in Bengal (1985). Besides, he has edited a classified compilation of Bengali journals of 19th century, the first volume of which is titled Samayiki: Purono Samayik Patrer Prabandha Sankalan, Vol.1—Bigyan o Samaj (1998). He has also edited Refugees in West Bengal—Institutional Practices and Contested Identities (2001), a seminal work on refugee flows and practices of care and rehabilitation in West Bengal in the first decade following independence. His recent work includes Health and Society in Bengal: A Selection from Late 19th Century Bengali Periodicals (2005). Samir Kumar Das is a Professor of Political Science at the University of Calcutta, Kolkata, and is also presently the President of Calcutta Research Group (CRG). A Postdoctoral Fellow (2005) of Social Science Research Council (South Asia Program), he is also the Deputy Coordinator of UGC–DRS Programme on ‘Democratic Governance in Indian States’. He specializes in and writes on issues of ethnicity, security, migration, rights and justice. His recent publications include Conflict and Peace in India’s Northeast (2008), Ethnicity, Nation and Security: Essays on Northeastern India (2004). He has edited Blisters on their Feet: Tales of Internally Displaced Persons in India’s North East (2008), South Asian Peace Studies II: Peace Accords and Peace
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Processes (2005) and co-edited Internal Displacement in South Asia: The Relevance of UN Guiding Principles (2005).
THE CONTRIBUTORS Subhas Ranjan Chakraborty, former President of Calcutta Research Group, is a noted historian who specialises in European History. A retired Professor of Presidency College, Kolkata, he is now the Additional Director, Police Archival Wing of the West Bengal State Archives. He is also a pioneer in the study of the society and politics of Darjeeling. Ratan Khasnabis, an economist and a specialist on agrarian reforms, is a Professor in the Department of Business Management, University of Calcutta. Amites Mukhopadhyay completed his PhD in Social Anthropology from Goldsmiths, University of London. He currently teaches Sociology at the University of Kalyani, West Bengal. His research interests include ecology and livelihood in the Sundarbans delta and environment and development, ethnographies of state and civil society, ethnic identities, particulary in the South Asian context. Amrit Paira is an independent researcher, an activist and is mainly engaged in the trade union movements in West Bengal. Ila Paira was involved for 20 years with a peoples’ health movement in the villages of Jhargram, West Bengal. Now she works with a Sishu Siksha Kendra. She lives in Jhargram. Roshan Rai is an independent researcher and a human rights activist based in Darjeeling. Kumar Rana leads the research team of the Pratichi (India) Trust, founded by Nobel laureate Amartya Sen, since 2001. His main fields of research include primary education, basic health, hunger, labour migration, and life and livelihood of the Adivasis of West Bengal and Jharkhand.
About the Editors and Contributors
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Ranabir Samaddar is a well-known political thinker on contemporary issues of justice, human rights and popular democracy in the context of post-colonial nationalism, trans-border migration, community history and technological restructuring in South Asia. Some of his works include a three-volume study of Indian nationalism, the final one titled A Biography of the Indian Nation, 1947–1997 (2001). His recent works include The Politics of Dialogue (2004) and The Materiality of Politics, two volumes (2007).
Index agricultural land conversion, to nonagricultural use, 43–44 acquisition, by state, 44 in contemporary world. See displacement displacement and compensation, 44 Enclosure Movement, in England. See Enclosure Movement justice, and land laws, 45 and Land Acquisition Act. See Land Acquisition Acts, in India principle of equity, violation of, 44 right to live with dignity, denial of, 45 Bengal Tenancy Act (1885), 62 Brihatbanga, 36 Capital, 51 Cromwellian Revolution, 49, 50 Darjeeling Chia Kaman Mazdoor Union, 77 Darjeeling Gorkha Hill Council (DGHC), 90 Darjeeling tea, 74–75 Democracy in Asia, 177 deprivation, and social injustice in rural areas economic condition, 102 changes in, 102–05 education, delivery mechanism of, 105–09 food security, issue of, 112–14
extent of hunger, in villages, 113 health delivery system, 109–12 injustice, and poor people protest, 115–16 location and socio-economic patterns, 97–99 Nandigram massacre, fear of, 114–16 people and livelihood pattern, 99–102 employment pattern, 99 Jorakhali and Betkundri, comparative sketch of, 100 selection of villages, for study Betkundri, 96–97 Jorakhali, 96–97 development, and social conflicts, 153–54. See also Singur project, and land acquisition process development project, and principle of equity, 56–57 Discipline and Punish, 176 displacement compensation, provision for, 58–59 development induced displacement, 54–55 equity-based justice and, 55–57 Enclosure Movement, 45, 53–54 British law and, 49–52 and capitalist society of ‘Enlightenment,’ 52 equity-based justice, denial of, 53–54
189
Index justice and principle of equity, 52–53 feudal justice, 46–47 customary right and, 47, 52 gentry class, emergence of, 49 Marx on, 51–52 Phase one of enclosure, 47–48 Phase two of enclosure, 48–49 and social cost to state, 51 Fairtrade, 80, 92 Ganga–Padma erosion, 136–37 General Act of Enclosure, 50 Hazard Analysis and Critical Control Points (HACCP) system, 87 Himalayan Plantation Workers’ Union, 89 International Fund for Agricultural Development (IFAD), 132 jhumur, 95 justice in India, study by Calcutta Research Group (CRG), 9–10, 20 forms of, justice, 10 key texts, on justice, 19–20 law and justice, relationship between, 17–18 ‘justice-gap,’ phenomenon of, 18 marginalities, and issue of social justice, 18–19, 21–22 method for study, 11–12 dialogic route of research, 12 minimal justice, and theory of sovereignty, 25 research study, introduction to, 10 risk society governing in, 23 social justice in, 23–25 security considerations, and justice, 23
social justice, 21 and democracy, 10–11 issue, and sovereignty and democracy, 25–26 and political rationality, 21, 27 state of social justice in West Bengal, volume on, 12–17 political democracy, and social justice, 13 ration riots, and discourse of social justice, 14–17 Land Acquisition Acts, in India and Article 31A of the Constitution, 70 Bengal Tenancy Act (1885), 62 of British Raj, 63–65 claimants of compensation, 68–70 compensation, provision for, 65–68 ownership rights, 59–60 rule of Permanent Settlement, 60–61 usufructuary rights, 60–62 Marichjhanpi incident, 127 Marx, Karl, 51–52 Mineral Springs small farmers’ project, 93 Nandigram massacre, 114–15, 169–70 Nature and Significance of Economic Science, 58 Organic movement, 92 Penaeus monodon, 124 Permanent Settlement, rule of, 60–61 usufructuary right in, 61–62 Tenancy Act, enactment of, 62 Plantation Labour Act 1951(PLA), 78, 82–84
190 Poor Law, 51 Rawls, John, 57 Robbins, Lionel, 58 Roxburgh, William, 120 Sajnekhali Reserve Forest, 129 Samajik Prabandha, 36 Singur project, and land acquisition process, 154–55 claim makings, forms of, 41, 159–61 bio-politics, issue of, 175–77 and development, 174 electoral majorities and social majorities, in modern democracy, 177–79 forbidden way, of claim making, 165–66 indefinite fast, situation of, 166–67 Nandigram, land acquisition at, 170–72 prescribed forms, 163–64 ration revolt, 172–74 tolerated forms, 164–65 violence at Singur, 171 West Bengal government, as high capacity regime, 161–63 government claims, on land acquisition, 157–58 indefinite fast, by Mamata Banerjee, 156–57 opposition claims, on land acquisition, 158 protest and government action, 155–56 turbulence of December lessons from, 167–68 and regime’s control capacity, 169–70 Society Must be Defended, 177 Sundarban Development Board (SDB), 130 Sundarbans
Social Justice and Enlightenment geography of, 122–23 global funds, to heritage site, 120 heritage site, region as for human population, 127–30 as tourists place, 128 Irrigation Department, and embankments, 135–38 land acquisition, engineers discretion on, 138–39 ring embankment, building of, 138 working of engineers and developers, 141–44 islanders’ strategies, against governmental injustice, 144–45 contractor’s property, selling of, 147–48 dafadar’s job, 145–47 government land, forcible occupation of, 149–50 as labour force, 145, 147 stealing of earth, 148 justice delivery mechanism, 121–22 life of people, and social justice, 120–21 loss of land, by Kusumpur people, 118–19 population of, 125–26 prawn seed catching, and islanders’ suffering, 129 riverbank erosion, and displacement, 125 SDB and Affairs Department, working of agriculture extension programme, 134–35 as coordinating agency, 132–34 on embankment erosion and displacement, 134 formation and functions, of SDB, 130–31 IFAD-assisted scheme and Board, 131–32 seminar on Sundarbans, 120
Index social and economic life, of islanders, 124–25 Sundarbans Biosphere Reserve, 120, 127 Sundarbans Mangal, 120 tea plantation, and social justice colonial legacy, and marginality, 88, 93 decline of tea estates, factors for, 89–90 evolution and history, of tea, 75–76 Fairtrade movement, 92 Mineral Springs small farmers, 93 Organic movement, 92 Panchayati Raj Institution, and community participation, 90–91 Plantation Labour Act 1951(PLA), 82–85, 91 institutional set-up, for enforcement, 83 shortcomings in, 83–84 workers’ rights and, 83 plantation workers, 85 condition of, 76–78, 88, 91 types and payment of wages, 78–79 tea estates, condition at Mim Tea Estate, 79–80, 86–87
191 North Tukvar Tea Estate, 79, 85–86 notions of social justice, 80–82 trade unions, role of, 89 workers life and welfare, 88–89 Teesta Barrage Project, 137 The Will to Know (History of Sexuality, Volume 1), 175 UN Declarations on Universal Human Rights, 55 usufructuary right, of peasantry, 60–61 West Bengal, state of social justice in, 12–17, 29–30 Bengal’s Enlightenment framework, and justice, 32–38 marginality and production of justice, 38–41 social in social justice, 30 social justice, delivery of, 30 social right and solidarity, 30–31 welfare state, function of, 31–32 Wilderness: Earth’s Last Wild Places, 128 World Bank Environment Department (WBED), on development induced displacement, 54–55
Gulamiya Ab Hum Nahi Bajeibo
Justice and Law
1
2
Manish K. Jha
OTHER VOLUMES
IN THE
SERIES
Volume 1
Social Justice and Enlightenment: West Bengal, edited by Pradip Kumar Bose and Samir Kumar Das
Volume 3
Maginalities and Justice, edited by Paula Banerjee and Sanjay Chaturvedi
Volume 4
Key Texts on Social Justice in India, edited by Sanam Roohi and Ranabir Samaddar
Gulamiya Ab Hum Nahi Bajeibo
Justice and Law The Limits of the Deliverables of Law
Edited by
ASHOK AGRWAAL BHARAT BHUSHAN
SAGE Series in State of Justice in India: Issues of Social Justice, Volume II
Series Editor
RANABIR SAMADDAR
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4
Manish K. Jha
Copyright © Mahanirban Calcutta Research Group, Kolkata, 2009 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2009 by SAGE Publications India Pvt Ltd B1/I-I Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763
Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 11/13 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. The assistance of the Ford Foundation in publication of the volume is hereby acknowledged. The views expressed, however, are not necessarily those of the Ford Foundation. Library of Congress Cataloging-in-Publication Data Available
ISBN: 978-81-321-0064-5 (HB)
(set of 4 volumes)
The SAGE Team: Elina Majumdar, Sushmita Banerjee, Rajib Chatterjee and Trinankur Banerjee
Gulamiya Ab Hum Nahi Bajeibo
5
Contents Series Acknowledgement by Ranabir Samaddar Series Introduction by Ranabir Samaddar Introduction by Ashok Agrwaal and Bharat Bhushan
6 8 27
1. Justice in the Time of Transition: Select Indian Experiences Sabyasachi Basu Ray Chaudhury
37
2. The Founding Moment: Social Justice in the Constitutional Mirror Samir Kumar Das
64
3. Indexing Social Justice in India: A Story of Commissions, Reports and Popular Responses Bharat Bhushan
100
4. Trivialising Justice: Reservation under Rule of Law Ashok Agrwaal
133
5. The Fallacy of Equality: ‘Anti-Citizens’, Sexual Justice and the Law in India Oishik Sircar
210
Consolidated Bibliography About the Editors and Contributors Index
251 259 261
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Series Acknowledgement
T
he publication of this series on the State of Justice in India: Issues of Social Justice is the outcome of a two-and-half-year-long research and dialogue programme conducted by the Calcutta Research Group (CRG) on the theme of social justice. The research work particularly gained from the dialogues which were painstakingly noted down, edited and later on produced in the form of a report. The report was distributed widely, besides being circulated among the hundred odd persons who participated in the dialogues. The editorial team thanks Kazimuddin Ahmed, Shreyashi Chaudhury, Dolly Kikon, Amites Mukhopadhyay and Pritima Sarma for the work. It also thanks in particular Debdatta Chaudhury, Ishita Dey and Rita Banerjee for their painstaking assistance in producing the volume. In 2003, CRG—with the assistance of the Ford Foundation— embarked on a research programme on some of the critical questions facing post colonial democracies, such as India. Since then CRG has conducted collective research into issues of autonomy and social justice. Three volumes came out of the research programme on autonomy, namely, Indian Autonomy—Keywords and Key Texts (2005), The Politics of Autonomy (2006) and Autonomy—Beyond Kant and Hermeneutics (2007). The method of combining collective research and dialogues continued in this work. While we have already noted that the second research programme followed from the preceding one, this programme was designed in a specific way. It was not meant either to be a philosophical inquiry or a pure political research: the emphasis was on combining critical legal inquiries with detailed ethnographic studies, intended to find out popular notions of justice and their interface with the dominant legal forms. Of course, appropriate theoretical conclusions have been drawn in due course, and these conclusions reflect on relevant philosophical issues as well. Readers will be happy to find that, as on the previous occasion, we have again prepared a collection of key texts—this time on social justice. Besides, soon there will be an online compendium of Keywords on Social Justice.
Series Acknowledgement
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The editorial team collectively thanks the Ford Foundation and Bishnu Mohapatra in particular for their support all through this exacting and at the same time exciting work, including this publication. Finally the team thanks the authors and all those who participated in the review discussions. Their mutual encouragement, discussions and suggestions were critical for this difficult enterprise. Ranabir Samaddar Calcutta Research Group, Kolkata
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Series Introduction The State of Justice in India RANABIR SAMADDAR
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T
his four-volume series is a report on the state of justice in India. In the by now established mode of collective research, which is dialogic, empiricist, yet imaginative, and has thus become well known within a relatively short period of time, the Calcutta Research Group (CRG) has come out with another study on post colonial democracy, this time on the aspect of justice obtained in democracy, that is to say, the limits within which democracy will permit justice, social justice in particular. Readers can take this study as a report card on social justice in India, titled State of Justice in India: Issues of Social Justice. Readers, in pursuing this four-volume series on justice, may, at times, think that we are conflating democracy with justice; they may also think that we are confusing justice with rights, or at times with law or with equality. Or, they may even think that we are overwhelming the idea of justice with our notions of social justice, burdening it with too many ideas, realities and expectations. In thinking of the CRG study in this way the readers are not all that wrong. In fact this thinking reflects a reality of our time, namely, that if the society of the propertied weighs everything with money and transforms everything with its Midas touch, the society of the subjects weighs everything with the criterion of justice—law, government, delivery mechanisms of administration, punishment, peace, war, reconciliation, revenge, reprove, relation with the rulers, historical memory—everything that affects the subject’s individual–collective life fraught with different socio-political issues. The idea of justice, we can say, is the great
Series Introduction
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supplement of our time. Hence, the theoretical and empirical extent of this inquiry into the state of justice in India makes the inquiry tantalising. It approaches the various spheres of justice, yet recoils from defining what social justice is; likewise the terms of reference in this research are clear, yet the inquiries are always leading to unexpected paths. On going back through the volumes, particularly the documents collected in the fourth volume, it seems to me that the study leaves a sense of something still remaining undefined, unenumerated, and therefore the entire series is, as if, delicately perched on an abyss between the governmental notions of justice and the popular notions of the same. If we were to be faithful to the realities of justice, we could not have quarrelled over its definition beyond a point and laboured it to death. Is justice then fundamentally a response to what is perceived as injustice, as reaction or as an idea better understood as a negative notion (the other of injustice), or understood properly only when taken as response to injustice? The volumes suggest to certain extent such an answer, hence is the prominent idea of the inexhaustible nature of the phenomenon, as the various ethnographic and analytic commentaries testify. Yet there is something to this manifold nature of justice, which we can put concretely only to its forms such as attainment of dignity, or reconciliatory, or retributive, or say, instant, restorative, restitution, distributive, allocation-centric, pardon, sentencing, redress of historic injustice or rational. These forms indicate the particular ways in which ideas of justice respond to various conceivable situations, where these ideas bring to mind certain injustices committed as well as some positive principles and practices forming the foundations of these forms. Hence we have decided to cast our explorations in an agenda of four engagements: The first volume is titled Social Justice and Enlightenment: West Bengal. The second volume is titled Justice and Law: The Limits of the Deliverables of Law. The title of the third volume is Marginalities and Justice. Volume four is titled Key Texts on Social Justice in India. Cast in an archaeological mode of inquiry, we wanted to see the layers in the practices and discourses on social justice, and how time, place, history, perceptions, arrangements or apparatuses (such as legal, judicial, constitutional, administrative apparatuses) play significant roles in influencing the regime of social justice, that is the ideas and practices making this regime. We also wanted to find out the
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conflicting discourses and actions in securing justice, and see how the conflicting terrain of social justice makes conventional democracy unstable because while democracy depends greatly on mass uniformity, constitutional unity and primacy of rule of law over other modes of regulating life, the contentious politics of justice creates deep fissures within these uniformities and primacies. Archaeological inquiry brings out these forms, fissures, levels, overlapping and conflicts. To say the least, these four volumes establish that the field of social justice is extremely contentious, hence dynamic. But these volumes make a more significant point, in fact a lesson for democracy, that is, that conventional democracy (in the sense of conventional democratic theory or in a regime sense, that is, the institutional profile of standard Western democracies) had little room for considerations for justice, while it had more room for liberty, fraternity and equality (that is to say, a theory and institution of membership of a national society, called citizenship, and formal equal membership of a collective). Yet post colonial experiences of democracy show that the widening and deepening of democracy take place through the dynamism that can be sourced to yearnings for social justice. This is the milieu in which rights have appeared always as claims for justice and collective politics has revolved around issues of injustice/justice. In this milieu, freedom, equality, liberty, care, protection and similar other principles of political society are weighed on the scale of justice. Yet, democratic theory has no clue to the way this can be theorised adequately. These researches not only point out the fundamentally unsettling nature of the question of justice, but also the possible ways in which democracy can take the issue of justice as one of its essential parts, which can, as a consequence, propel democracy towards becoming more democratic. For such a research agenda, studying liberal institutions and liberal theories would not have been enough; nor would setting up of prior principles for a positive notion of justice have been the appropriate way. Historical as well as ethnographic studies are needed in order to know the details of popular notions and practices of justice, the discursive reflections, the contrasting realities of governmental and popular justice and, most important, the variety of marginal situations which produce ideas and claims for justice. Taken as a whole, this series is an argument for an appropriate method, on which we can here comment a little more.
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Series Introduction
The fact is that justice in high philosophy has been ever a prestigious theme. It has signalled the inscrutable philosophers’ and logicians’ argumentations about nyaya (logic, principle, justice, equity, fairness, and so on) or as in the West, from Plato to Rawls and beyond, a discourse of order and management of inequalities and stations in life. The question faced in the beginning is: is this high route appropriate for the archaeological task we set for ourselves? We chose a more historically and ethnographically oriented route that was suitable for our task of mapping the various existing notions and practices of justice and their respective backgrounds, and our method as demonstrated here can be at best called guerrilla work in philosophy, because it subverts many philosophical assumptions without it putting on a philosophical garb. These ethnographic-historical studies have produced analysis from within. We did not adopt any pre-meditated analytical strategy. Thus several unexpected questions came out of our justice dialogues, which formed an essential part of our research mode, and they determine to a large extent the plan of this publication. In fact the three dialogues held at various places of the country influenced the research agenda, procedure, findings and consequently this fourvolume report.1 Those who have accessed the report will have an idea of how this dialogic route of research influenced the study.
II I do not want to anticipate here the editorial introductions to the four volumes. But we can briefly take a look into the features of our inquiry as contained in these four volumes. The first volume presents four chapters on the state of social justice in West Bengal. Based on ethnographic studies, they present scenarios of injustice, which not only form the context of justice and shape the specific local discourses of order, governance, rights, claims and justice but also mark two significant themes characterising our entire inquiries. The first is the theme of the local. The volume tells us that, while we can always say that there is a general regime of justice (particularly when we look at the scenario from the capital city, where we find the seats of the court, the main organs of the rule of law, administration, government, schools of justice, juridical training, and so on), the local acts itself out at times
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violently, and local perceptions of in/justice may be modelled spatially precisely along the line of distancing from the metropolitan. Rule of law as the main mechanism of justice makes little sense to these specific local practices. But this takes us to an even more significant point. Why is it that in West Bengal, known as the land of enlightenment, a standardised language exercising hegemony over the entire state, domination of the upper and middle castes quite well spread over the state, and a long established court system (the place where the colonial rulers established the first seat of the highest court in India) we have these pronounced assertions of the local? Or, why is it that, notwithstanding this enlightenment, of which citizens of West Bengal are justifiably proud, the archaic rule of law remains fundamental in state governance so that nobody is held accountable for hunger deaths, or caste discrimination, or the deep backwardness of the minorities, marking large areas falling outside the core rice producing areas of the state (the core rice producing areas are Burdwan, Hooghly, North and South 24 Parganas, Nadia, Murshidabad and East Medinipur)? We have thus incorporated in this volume the study of a colonial act that still persists. It seems that West Bengal presents for us two classic questions on justice, namely, what constitutes the social of social justice? And therefore, what is in this idea of social justice that cannot be exhausted by governmental gaze on justice? Also, what are the contests that mark the field of the social? Clearly there is a strong disjunction between the political career of enlightenment, on which the constitutional Left in West Bengal has thrived for several decades, and the career of the idea of social justice. Indeed, the West Bengal experience demonstrates that while democracy may widen as in several parts of the country, including West Bengal, through mass entry of workers and peasants and the rural and urban poor, and this may indeed facilitate long denied political justice for them (like rights of unionisation, and so on), this does not ensure social justice per se. What is more ironic is that the champions of political democracy, like the official and ruling Left parties in West Bengal, may not even recognise, and therefore acknowledge, that political democracy does not ensure social justice automatically. They may even say, as recent experiences of the state verify, that the struggles and contentions for social justice are counterproductive for the democracy they guarantee because these contentions target the hegemony of the political class, overwhelmingly coming from
Series Introduction
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upper/middle caste, liberal, leftist background. This hegemony they think is essential for the democracy they have ushered in, or have widened. They may also say that ‘narrow’, local ideas of justice actually injure celebrated concerns and ideas of national progress and security. In this perspective we can recall the situation in West Bengal in September 2007 when unrest over the inadequacy of essential supplies of food grains in fair price shops spread over a significant part of rural Bengal. The unrest brought before us these two worlds: one of enlightened concerns about the nation, and so on, and other of local, immediate, material concerns—concerns that are articulated as demands of justice. The events dramatically demonstrated the bifurcated world of concerns of the nation and the very immediate concerns of justice. Reports spoke of a man being killed and dozens of people injured in the district of Birbhum in the last week of September 2007 after hundreds of people clashed with police, accusing authorities of hoarding food stocks meant for the poor. Poor villagers said that subsidised food grains and sugar meant for them were being diverted to regular markets and sold at huge premiums by corrupt PDS officials. At least 100 people, including dozens of policemen, were injured in clashes in the week in late-September–early-October 2007 in the state during protests against what locals said was widespread graft in the government’s public distribution system (PDS). One report quoted Peeyush Pandey, the district police chief of Burdwan, where trouble broke out in that week, ‘We have deployed a massive police force and are trying to bring the situation under control.’ Witnesses said one protester was killed when the police opened fire to disperse a mob, but police said they were still investigating how he died. The incident occurred in Ketugram in Burdwan district when irate villagers laid a siege on ‘ration dealers’—as PDS agents are commonly referred to— and demanded compensation from them for insufficient supplies of wheat and rice. A police contingent rushed to the spot and rescued the ration dealers. Angry at the police action, the villagers attacked the houses of ration dealers and hurled stones at the police. They also set fire to police vehicles. As things went out of control, police first resorted to a baton-charge and then opened fire. Ayub Sheikh, a protester, was killed in police firing outside a block office in Lavpur area of Birbhum district, when political leaders inside were discussing the spreading agitation. Arson, looting and ransacking of ration shops were reported from several areas in the district, around 128 km from Kolkata.
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The same report quoted the police as saying, ‘Ration dealers and their families are being given adequate protection.’ Protests against corrupt ration dealers continued to rock the heartland districts of Birbhum, Bankura and Burdwan. Trouble had first broken out on 16 September, and then rapidly spread. Everywhere PDS dealers were accused of privately selling off government-subsidised wheat and rice at higher rates. In Mayureswar of Birbhum district, about 250 km from Kolkata, the houses of six ration dealers were set ablaze and their families assaulted. Villagers also looted property and food grain. One political party, the Socialist Unity Centre of India (SUCI), called a 12-hour strike in the district to protest against corrupt ration dealers, but it was later withdrawn at the behest of local leaders. Protests were also reported from Bankura district. Security forces led by Inspector General of Police (Western Range) Arun Gupta tried to cope with the situation even as consumers looted the shop of a ration dealer near Kirnahar bus stop in Birbhum district. Reports also spoke of villagers trying to set fire to grain storage depots and police vehicles, saying they were starving. Dozens of PDS franchisees surrendered their permits out of fear and police said they were investigating all allegations of hoarding. In this context it should be recalled that earlier that year, an inquiry by the Central government found that most of the rural poor in five states were not getting subsidised food supplies regularly. It found that only 10 percent of the rural poor were getting regular supplies in dozens of remote villages of West Bengal. Yet it also has to be recalled also that around that time, one newspaper reported the Chief Minster as saying that Bengal would have two more small airports soon (Business Standard, 3 October 2007), and that Air France was keen to operate flights out of city. Yet, in the wake of the trouble in the countryside, the same newspaper also reported that West Bengal’s poor track record on the theft of public grain was second only to that of the northern state of Uttar Pradesh, and Reliance, the giant conglomerate of everything saleable, had cut its troubled retail plans further. The irony was clearer when faced with shortage of food, the people of a village in Bankura let out their anger at a protest rally organised by the CPI(M) against the nuclear-deal, saying they wanted food and not nonsense. Villagers also beat the local Left leaders. Nearly a thousand villagers clashed with police, forcing the latter to open fire. A schoolboy (16) and another man (23) were injured in the police firing. Nine other villagers were injured in the baton-charge. They were
Series Introduction
15
admitted to hospital. As the news of violence at the CPI (M) meeting spread, violent protests against ration-dealers were reported from elsewhere in the district. State CPM Secretary Biman Bose admitted that the Left’s stand against the Indo-US nuclear deal lacked the force of bread-and-butter issues and would be difficult to sell as a campaign issue to an electorate. Meanwhile, what was happening in the official world of politics and the academia? The ruling party, the CPI(M), accused the Trinamul Congress, Congress, BJP and the Naxalites of deliberately trying to disrupt the ration system in the state. The welfarist, liberal, developmental economist, Professor Amartya Sen, found nothing wrong in forcible acquisition of land of the peasants by the West Bengal Government, and assured the people that in due time industrialisation would solve basic poverty as it had done elsewhere, even if meanwhile poverty increased due to forcible dispossession of land. 2 The question that comes out of all these reports is: what do the ‘ration riots’ in West Bengal, as they are remembered now, signify for the discourse of justice, particularly social justice? Readers will have to go through all the four studies presented in the volume to get a fuller answer to the question posed here. The second volume works on the relation that exists between law and justice in India. Once again, the strategy has been to go into specifics that will tell us of the formations in which justice and law have hitherto related to each other. Therefore, the second volume begins with a description of how in the moment of constitution making our legislators had engaged in the discourse of justice in a particular manner that enabled them to separate the issue of justice from other issues of democracy, political power and citizenship, so that the Indian Constitution, while it spoke of justice, never integrated it with other issues of the political society it was building. Therefore provisions of justice—and this is a point that CRG brought out in its researches on autonomy also (Banerjee and Das 2007, Basu Ray Chaudhury et al. 2005, Samaddar 2005)—remained as an adjunct, a provision of special nature not applicable to all, and therefore thematically submerged in many other things belonging to the constitutional domain or theoretically dissoluble in the mainstream of constitutional thinking. The constitution insofar as it laid down the profile of fundamental legal justice was the other scene of that reality where political justice made sense only when it had addressed
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issues of social justice, and popular politics made sense only in the mirror of popular perceptions of justice. All these can be termed as the phenomenon of the ‘justice-gap’, which means a gap between claims for justice and governmental (including legal and juridical) regime of justice. The volume thus, as if in a continuing narrative, takes up the issue of reservation in a major way through two long contributions—one documenting the history of reservations in India in the context of political contentions, mass politics, elections, judicial activism and policy games, and the other that shows how the policy game goes on in the language of courts and law. Yet both of these contributions indicate how the issue of justice remains inextricably bound up with the issue of expansion of democracy—a ‘state of exception’ for democracy, because democracy widens not, as we are told historically, through calls for liberty or laissez faire or economic liberalism or individual freedom or even nationalism, but through calls and claims for attaining or ensuring social justice. Indeed, the volume demonstrates that a legal system, whose main task is to rationalise, encode and enforce sovereignty, cannot deal with calls for social justice in its manifold forms, including the form that calls for an end to the repression of sexual freedom under a patriarchal legal regime, or for delivering justice in transitional situations which often make the dispossessed (dispossessed in the wake of the so-called transition to industrialisation and globalisation) the victim. Can we say then, on the basis of this report on the state of the relation between justice and law, that the gap remains never fully bridgeable; and to the question then of what constitutes the social in social justice, can we say that the social (in the context of justice) is what remains beyond what is governmentally constituted, administratively constituted or constituted by considerations of rule (that is, considerations of territory, security and streamlining of people into population groups)? May be that too is social justice, yet clearly in the domain of social justice we have no consensus. Conflicts abound. On the question of what constitutes the social of social justice, the mystery deepens and then resolves in the third volume, which is on marginalities and justice. Marginalities indicate marginal situations, marginal actors, processes of making segments marginal, techniques of producing marginal situations, the asymmetric power play in society, but more than all these, marginalities indicate strategies of inclusion, exclusion, differential exclusion and, most important,
Series Introduction
17
techniques of turning spaces into marginal enclaves—and all these in the interest of effective government. In this dynamic field (because while the government addresses one issue of marginality, its governing techniques produce other marginalities), the claim for justice is a product of marginality. Power meets its other in the issue of justice. In the social imaginary of justice, governmental politics is thus apprehended as its other, as its absence, as the void in a relation that was producing power. Marginality produces counter-power—and this is a play produced purely through the diagram of space configured through disciplinary and governmental apparatuses. Marginal positions are positions marginal to operations of power—positions that are produced by the operations of power. Therefore, issues of public health suddenly bring to surface situations and positions of marginality in relation to operations to govern society. Dalit communities may have marginal positions within. Marks of violence may signal the marginal positions in society because only violence may indicate how the marginal may strike back at the heart of the empire. In short, as the third volume demonstrates, justice may emanate from the dynamics of marginality, and this not a spatial given once and for all, but a spatial dynamic produced incessantly from the operation of a grid of power that wishes to rationally govern the society by compartmentalising it, disciplining it and controlling the flows that mark it. Therefore the same governmental techniques which, to some extent, may address issues of social justice, such as positive discrimination, may produce marginal positions out of their operations. Justice is thus, what I indicated in the beginning, something that tells us of the existence of a remainder; it characterises a void; it demonstrates what remains outside the operations of governmentality. It speaks of arrangements of social spaces. The remarkable chapter on AIDS, marginality and issues of social justice addresses the heart of the matter. The fourth volume is a compendium, whose nature is again governed by the framework of this research. It contains certain key texts. These texts hopefully will bring out the relational nature of justice, as also the fragmented nature of its existence. They will also tell us as to why we cannot retain in our political idea the full-blooded nature of sovereignty when we want that society should fully ensure justice. This is of course a problematic posed by the paradoxical relation between law and justice. Each document, say, is an appeal for justice—appeal to the state to ensure justice, appeal to ensure effective legal delivery
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mechanism; on the other hand, each document is a manifesto that law is not ensuring justice, that state actions fall short of ensuring justice, indeed state actions cause injustice. You need order that will be the form of justice; yet this order will soon appear to the society of subjects as causing injustice to some sections therein, specifically those sections that find themselves now marginally situated consequent to the operation of order. Justice is perched on that great meeting point—of the operation of law and order and the process of subjectivation, when the claims of the subjects must take the form of being just, that is to say, these claims will have a permanent relation to law and order, yet will always seem to emanate not from order, but from what lies beyond, that is, in ethical-political claims. With attainment of rights, thus, subjects can say that justice has been done, in fact with the right to justice, the subject has attained agency. With claims for social justice, we can say, the subjects of justice have made their political intention of going beyond the legally mandated nature of political society even more clearly. This four-volume report aims at telling its readers the conjunctional nature of justice in India. In the framework of enlightenment, law and social marginality the report shows how justice fares. This is a selective approach. Even 10 volumes, structured along the line of describing the state of justice in India state by state or issue by issue, or institutional organ by organ, or form by form, would not have been adequate; not even 20 volumes. We have gone for a select report. However, this method should now prevent us from coming to grips with the issue of social justice in a democracy, which would mean, to repeat, finding out what constitutes the social of social justice, how law fares in delivering justice, how violence becomes an essential part of the popular notion of justice and how the dynamics of justice is linked with the emergence of marginal situations, and therefore in the light of all these, how to read texts of justice. All in all, this is a report on the conjunctional nature of justice in India, and the specific questions that it poses for democracy. The fourth volume is particularly meant for future researchers and students, who hopefully will benefit from the work already done by CRG in this field. It follows the standard practice of CRG in setting up its research goals.
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Series Introduction
III Yet, the summary of these findings is not just a summary—it leads to something more to which we can move our attention. The principal one of the specific questions—and I have hinted at quite a few in the beginning of this introduction—is namely, if democracy is destined to be tied in the near foreseeable future to the rules of governmentality, how can it inhere justice at the same time, whose foundations are perched, as these volumes show, on the intersection between governmental forms and the forms that lie beyond the politics of government? Social justice is that genre of justice that is not exhausted by the prevailing governmental forms of justice, namely all those that are enumerated by law, administrative order, court order, policy resolution in official circles—in short, what is termed as ‘political rationality’. If we have tried to engage with the question as to what is social in social justice, here is another engagement marking this inquiry you may say from the opposite angle, namely, what makes this social an issue of justice, which can mean fairness, equity, verdict, guarantee, recognition, dignity, punishment, pardon, reconciliation, compensation and, in cases, even innovation—all these forms depending on the particular ways in which these two components of the appellation called social justice (social and justice) are being defined at the moment of the meeting of the governmental and the supplementary forms. In fact, as the chapters on AIDS (Volume 3) and the court discourses on reservation (Volume 2) show, some of the issues of our life become social because they raise the question of marginality and therefore, of justness. Likewise, these issues become issues of justice because they have refused to be exhausted by governmental (which includes the juridical) ideas and practices, and have become social. In this contentious dialectics we can locate our histories of social justice. This probably needs to be explained a little more. How do marginal positions arise? The governmental obligations of modern rule, as Michel Foucault showed, arise from the necessity of governing effectively the sites of the ungoverned, therefore turbulence and risk, namely one’s own soul, family, kingdom, territory and people. Governing the soul results in the science of ethics and morals; governing the family adequately results in economy; governing the territory
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results in security and governing the people results in the sciences of the population (namely economics, demography, statistics, juridical science, political science, human geography, urban studies, and so on) (Foucault 2007). I think for us what is instructive in this observation is not that this just happened, but that the dictates of the sciences of caring of the self, governing the family well, similarly ruling the territory, taking care of security considerations and, above all, the population, resulted in a massive reconfiguration in the power diagram where marginal positions would be created with each act of governing, because governing would become essentially a fragmenting and dismembering task, the calculation of rational means and ends in this way producing and meeting its dead ends. Since the sovereign would not now intervene at each and every stage, for that would be impossible given the complexities of a modern society (economy, food production, ‘overpopulation’, right size of territory, right kind of people, public health, public education, equal conditions, individual freedom coupled with social segmentation, social stratification, class, caste, race and gender divisions, and so on), the art of governing would have to ensure justice also, even if that meant producing social injustice. Thus, while during the colonial time, the cry for freedom reflected the demand for justice, by the time the constitution was being made, the nature of the demand for justice had changed. The Constitution could not be content with saying that attainment of freedom was justice achieved, it had to now demonstrate in its body of provisions as how justice had been or was being vindicated in each of conceivable marginal position—thus you have references to caste, problem of equality, just division of resources, just exceptions, just compensations, just policies towards minorities, and so on, so that the Constitution could claim that freedom meant justice for marginal positions. In a sense then, we have here the age old question of politics: can the sovereign be content with dealing with obedience and the problems of control, or will it have to devise ways of governing people, habitations, circulation of people, money and commodities and, with all these, the territory in which the population resides, habitations exist and circulation of money, goods, labour, capital, information, and so on, takes place? It seems, for instance, from a primary reading of the Indian Constitution that the issue of justice appears to the sovereign as an extraneous one, not intrinsic to rule, though advices to the sovereign have been always that
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the sovereign must be just towards his subjects. Thus the problem for the Indian Constitution was not simply laying down certain advice to the sovereign, but also erecting rules of government, which meant among others the rules for ensuring justice for those who occupy marginal positions. It is in this moral framework that the great encounter between the governmental forms of justice and the popular ideas of justice takes place. In a more precise and institutional sense, the court, the executive, the legislature, the bureaucrats and the policy makers—all start discovering the limits to ensuring justice. All start saying now in defence of the limits that justice must be balanced with considerations of security. Security means taking care of and avoiding risks. But that means calculating certain possibilities as risks. What is risk? There can be inflation, food crisis, weakening of borders, infiltration, depreciation of currency, bank failure, weapon failure, intelligence failure, spread of gun and criminal activity, environmental catastrophe, weather failure, climatic disorder, widespread entry of travelling mass diseases such as the Severe Acute Respiratory Syndrome (SARS), brain drain and internal disorder leading to civil strife. All these are risks to the government. Governing in risk society would mean engaging with risks, reorienting policies, ensuring security, so that risks can be calculated and mostly avoided. This is precisely the governmental business that proceeded from the 1950s in India. The governmental frenzy with risks of course reached its climax in the late 1990s when in the span of a decade it came out with at least seven policies (rehabilitation and resettlement, information, food, minimum wage, agricultural insurance, national security and coping with national calamities) aimed at coping with risks flowing from nuclearisation of weaponry, opening up of the national financial and commodity markets and liberalisation of controls. But this task of taking care of security would soon come into conflict with the other task of governing, namely ensuring justice. To the government the question meant what would constitute justice in a risk society? As a result we have now endless debates as to how these two considerations can be balanced. In a fascinating chapter on Jharkhand (Volume 3) the research shows how what years ago was a cry for justice, namely self-determination of the Adivasis and thus the demand for separate statehood for Jharkhand, now changes with time and today the cry for development has become the other name
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for justice. But if this shows how in many cases the governmental form acts as the model, the volumes also show that social justice is often perched on the intersection of the two varieties, which in a conflictual combination make up the philosophical and moral framework, within which justice—its manifold perceptions, practices and institutions—operates. One thing is true at any rate that demands for social justice go against economics and the very economic idea of free circulation of merits, men and resources. We have in this corpus of writings a genealogical account of the Land Acquisition Act (Volume 1), which shows how, on the strength of economic logic, naked dispossession of people of their land and other resources have continued for the last two centuries, and the enabling instruments have been this Act and its preceding and following legislations. The economic logic would be to allow freedom to begin because freedom does not begin anywhere by itself. But the economic logic and the governmental obligation to institutionalise freedom, however, soon comes up against other governmental obligations, one of which is to keep the society calm so that the risk of civil disturbances does not become immense. Hence, you may have the declaration of a National Emergency as in India in 1975—a classic risk situation—when the government is faced with the risk of social inequalities and social protests going out of hand, and therefore cannot allow the society to continue along the lines of laissez faire, the cornerstone of liberalism, and has to intervene in a pronounced way. Indira Gandhi’s Twenty Point Programme was an attempt to combine the sovereign’s power and governmental responsibilities. The sovereign has to keep the territory and the population secure under its unquestioned power and control, the government has to ensure that all relations that affect the rule, that is, behaviour or conduct of the subjects, are governed properly. Governmental justice, the classic example of which was the Twenty Point Programme, emerges in such a milieu, its apparatuses are forged under such condition, and if we recall the ideas of developmental administration and judiciary that emerged in the mid-1970s in India, we can see the permanent dilemma for the government. Courts too swing in mood in that dilemma: should they be an apparatus of security (of the sovereign, interpreted as the nation) or should they help the task of governing? They cannot, of course, avoid either of these two tasks. Hence, the periodic convulsion in juridical thinking
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with which we are now all too familiar. Because social justice cannot be bought by market mechanism (individual justice can be—if you have money you can escape caste discrimination in an Indian village or town and settle elsewhere), the government is therefore ever at a dilemma—how to intervene, how much to intervene, how to control, how much to control, how to leave and how much to leave to economic mechanisms? Administration of things is thus never an easy task for the government, who has to know the correlates of evil and freedom, and is thus always in the need of knowledge of something we can call as the physics of power. The general form of mechanisms of security and normalisation are never enough in such a conundrum. We shall eternally ask, should the criminal be kept long enough in jail to keep the society free of crimes, or should the criminal be set free once he has been indicted of crime, since thereby we have satisfied the requirement of justice?3 What would social justice mean in a risk society, which requires government of all relations and themes in a micro-regulated way? From the point of normalisation then social justice becomes a hindrance, though precisely for this reason, social justice becomes a motor for popular democracy. It disturbs the relation between politics and strategy, government and the sovereign, responsibility and freedom and normalisation and risk. Considerations of social justice mean, as these researches show, reflections on the sovereign, ways of rule and the sciences of government. But more significantly, these considerations would mean at least openness of the discourse for claiming redress for the wrongs done—a recognition of the wrong, a provision of redress, a guarantee that the wrong would not be repeated, custodianship of the corrections done, and an attitude of innovation or openness towards creating new mechanisms to act as guarantee that the wrong would not be repeated. This is what I have described elsewhere as minimal justice (Samaddar 2004). The argument for minimal justice has implications for the theory of sovereignty. Democracy could not make a dent in the theory, possibly that was not its purpose also. Nationalism and popular sovereignty— both closely related with the history of democracy—brought the juridical form of sovereignty into sharper focus, though both brought the imperative of government also closer home, as under nationalism and popular sovereignty the sovereign was to be close to the people, and was obliged to constantly explain that the sovereign was for the
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subjects, and intended their welfare. Yet, we must remember that even though democracy grew up under the aegis of these two, governance was never strictly its main occupation. It was a science to be practised by the experts employed by the sovereign. Democracy occupied itself with the issues of rights and law, but left the matter of ‘administration of things’ to the government. Thus democracy never raised the issue of the sharing of sovereignty—realising those forms, which would enable democracy to install popular governance at the lowest level in each sphere of life, autonomous arrangement for self-rule and an interaction of autonomies in a society reorganised along the lines of autonomies. With the clamour for social justice now marking democracies, the liberal theory of the state cannot easily incorporate those demands within its theory of sovereignty regarding the state, or within its theory of government based on a view of laissez faire, in which market mechanisms must be given as much space as possible to keep things flowing or circulating with ease. Social justice does not eliminate the problem of sovereignty; on the contrary it makes the problem more acute than ever. It now obliges the sovereign to become the great trustee of a mechanism called the administration of justice. Its freedom is curbed. It now has responsibility and an obligation to explain. This is where sovereignty and democracy start parting ways, because social justice, as these volumes show, raises issues ranging from legal pluralism to development, dignity and compensation, to contests around marginal positions. The art of government cannot save the sovereign from the challenges facing it. In a way through the emergence of the issues of social justice that now mark politics in a big way we have a reconstitution of the history of sovereignty. The state of justice, born in the feudal age and characteristic of the territoriality of that time, corresponded to the society of customary and written law. Then came the state of regulation, government, laws and controls, which mark the modern time, corresponding roughly with the society of industrialisation, mass population, developed trade and market mechanisms and risks about our biological lives stemming from famines, starvation, security threats, currency crisis, mass disasters, and so on. This state of regulation and government would be happy to be engrossed with issues of security and population. But the question of justice becomes a question mark in this neat history of transformation of the state. The reason is that issues of social justice on one hand do not allow the
Series Introduction
25
sovereign to leave everything of daily administration in the hand of the government; it has to intervene as an exceptional power to ensure justice (once again recall the proclamation of National Emergency in India in 1975); on the other hand, the government is compelled to devise newer and newer techniques—based on a combination of legal and semi-legal modes—to satisfy the demands for justice, which its own governmental forms had in the first place given rise to. Neither the elevation of government to a sovereign position nor the governmentalisation of the state proves to be the solution. Social justice presses democracy to escape the closure imposed upon it by these two transformations—one or the other. The sovereign, suzerain, lord, landowner, priest, master, administrator, legislator and the judge—all have had their own specific ideas of how to administer justice, and governing justice has become a specific activity. In this the policing, prosecuting, trying, sentencing, jailing, interning, expelling, imposing penalty and finally killing—all have specific roles. All these are meant to combat risks of delinquency, murder, theft, illegalities, violence and all that threaten life and society. If this is the reason of the state and governance, it is clear that reasons of both the sovereign and the government lean heavily on functions of security so that social circulation continues unimpeded (recall the confinement of the AIDS patients). As I have pointed out, this in the long run injures the legitimacy of the sovereign because the sovereign was to rule for the benefit of the subjects. Social justice shows that police and justice, meant to go together, cannot go together. Political rationality fails because the co-existence of the reasons of the sovereign and those of the government is disturbed with the emergence of the issues of social justice. Social justice is thus a specific domain—perched on the cleavage between the two rationalities—of analysis and knowledge on the one hand, and intervention on the other. The truth of justice cannot make peace with the truth of politics. Governmental negotiation of issues of justice is shown in this collective research as not something transcendental. The more governmental power assumes microform to settle issues of justice, the more justice eludes the governmental regime (even enlightened administration, as shown in Volume 1, cannot escape the paradox of governmentality while it thinks it has addressed the issue of justice satisfactorily) and becomes an issue that is even more marginal in its position in society. That is why this series required a combination of case studies built on
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the theme of law and democracy’s engagement with issues of social justice—issues that owe their genesis to marginal positions in society and have not been exhausted by governmental rationality.
NOTES 1. For an account of the CRG dialogues on social justice, please see http://mcrg. ac.in/Dialogues_on_Justice.pdf 2. I am drawing from the reports in several newspapers published at that time. The particular report I have referred to in the preceding two paragraphs is from the bulletin archives of
[email protected] on behalf of Palash Biswas. 3. See for instance the discussion in Hudson (2003), especially pp. 203–26.
Introduction ASHOK AGRWAAL AND BHARAT BHUSHAN
N
otions of fairness and justice must be assumed to have existed throughout human history. For all we know pre-modern views attributing such notions to all life forms and even to inanimate objects (matter) may be correct. If so, it would not be presumptuous to assert that these notions are coterminous with the history of the universe, and may even pre-date it. Who is to deny that the big bang, or whatever other manner in which the universe came into existence, was not actuated by a sense of fairness, justice or law (order)? In the modern era these notions have acquired an overwhelming primacy in human affairs, in the shape of issues of bread and butter, as well as identity. Similarly, it must be assumed that law is intrinsic. From physics to psychology, laws seem to exist (seem to have always existed) everywhere and, for everything. Perhaps the patterns that we deduce (or reduce) to the position of ‘laws’ are as much Maya as the rest of the universe is stated to be. However, as the famous story about Shankaracharya illustrates, the severity of law’s grip is not lessened by this fact.1 On the other hand the grip is tightened by the virtue of the special role in the attainment of fairness and justice that is today attributed to law. All pre-modern systems are commonly deemed to be tainted with the vice of partisanship, with the personal preferences of the monarch, or a set of oligarchs, ruling the roost. The bourgeois revolution on the other hand is claimed to have a non-partisan base, namely rule of law. Since it is axiomatic that partisanship in any form is antithetical to both fairness and justice, assuming that the assumption about the nonpartisan nature of law is correct, this special relationship attributed between law and justice is understandable. It is commonly perceived that it is only through law, and the rule of law, that fairness and justice for all can be achieved. What is true for justice is equally true with respect to social justice.
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Linking law with justice is not without problems, however. Supporters of Hayek have called the quest for social justice ‘a conceit of reason and its inflated ambition to do what even God had not deigned to do: construct a just social order’ (Novak 2000). Hayek alleged that social justice advocacy was an instrument of ideological intimidation, used primarily for the purpose of gaining the power of legal coercion. According to Hayek the difficulty in defining social justice results in it frequently becoming a term of art whose operational meaning is, ‘We need a law against that’. There is no gainsaying that even if one vehemently disagrees with everything that Hayek stood for, his statement about the manner in which law is used by a wide spectrum of people—from the very good to the very bad—strikes a chord in almost every mind. Rawls on the other hand, though as staunch a liberal as Hayek, and, perhaps, more acutely conscious of liberalism’s desperate crisis of faith, spent much of his life justifying the link between law and justice. Since only that which can be enforced is law, the view that justice must be enforced results in it acquiring a symbiotic link with force. However, liberty and force are antithetical to each other, as are justice and force. As a result of its alignment with law justice also becomes involved in an inverse binary with liberty, that is, liberty must be sacrificed so that justice can be attained. Rawls’ quest for finding a satisfactory resolution to this paradox resulted in his formula (or theorem) proving (at least on paper) that given the right assumptions, the enforcement of justice would itself be just. His landmark ATheory of Justice (1971) sought to enumerate the conditions under which it would be ‘just’ for the state to enforce obedience to the laws that it makes. In a classic tautology, the assumption begetting the conclusion, Rawls asserted that by operating from behind a veil of ignorance (for example, such as that provided by ‘rule of law’) all individuals would choose to act so as to maximise public good.2 In other words, social justice is attained. Shorn of rhetoric, it seems axiomatic that no one permits an injustice to be perpetrated upon them, or tolerates once perpetrated, if it is within their power to prevent (or remedy) the injustice. If this is so it is correct to state that injustice is founded on the unequal distribution of power. For, if people were equally powerful injustice would not exist except as a fleeting phenomenon that gets redressed
Introduction
29
as soon as it occurs. In which case, it is possible to say that the notion of justice (or injustice) is linked to a notion of equality (or inequality). People (either as individuals or in groups) who perceive themselves as labouring under an inequality (of power) embark upon a quest for such equality, which gives rise to the notion of justice, including social justice. In other words, the quest for social justice can be defined as arising from the right to equality. Further, consistent with the postulate that inequality is a function of asymmetries of power, and given the extreme motility of power, social justice is liable to be a continuous process of balancing conflicting claims and equities rather than a state of perfection, to be attained once and for all times. Thus, de hors ideological straightjackets, it is possible to argue that social justice cannot have a general formulation (or, a definition) since its articulation at any given point in time and space depends on the particular deprivations/marginalisations that are sought to be addressed. The foregoing view suggests a definition of sorts, of social justice as a paradigm of change and, always against the status quo; the status quo being defined as any system of social, economic or political organisation that perpetrates and/or preserves an existing inequality, or set of inequalities. Such a definition has the additional virtue of providing a perspective on the ideological battle over the notion. For example, Hayek’s disparaging ‘We need a law against that’ remark about the manner in which social justice advocates interpret it only makes sense if read as distress at the destruction of its revolutionary potential by the adoption of a doctrinaire—rule by law—approach. However, his criticism of social justice advocates for avoiding a definition of social justice is flawed by his failure to recognise that this absence of a ‘definition’ is intrinsic to the concept. He ought to have known that it is only by avoiding the trap of a definition that social justice can remain meaningful. To sum up, social justice is the process of unsettling the status quo, it being irrelevant whether the status quo represents a majority or a minority. This description appears to be particularly apt in the Indian context. It is impossible to imagine a notion of social justice for India that did not hold out the promise of unsettling the status quo. The very notion of an independent India was premised upon the promise of this unsettling in favour of those who were forced to live
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on the fringes of the human society for many centuries, on the basis of a severely curtailed humanity. Notwithstanding its inevitability (or the aptness) however, the extremely heterogeneous nature of its polity makes the quest for social justice in the Indian context seem almost absurd. For, it is a corollary of the discussion above that more homogenous the polity the easier it would be to both formulate and implement social justice programmes.3 It follows that the impossibly complicated criss-cross of fault lines that makes up India’s polity must (virtually) doom to failure any possible programmme for the attainment of better levels of social justice. Yet, social justice is a formal quest of independent India and continues to be so. It can be said about the last five-and-a-half decades since it was commenced that the quest has been, at best, half hearted; with cupidity, greed and corruption marring them even as such efforts were made. It is also true that a significantly large percentage of Indians, including those who belong to sections that were worst off when the quest began will assert that life today is better than it was in the days of their youth (or that of their parents). These people will also affirm that law has played a pivotal role in this betterment of their lives. This volume examines the processes underlying this contradiction, as also some of the ramifications of the processes themselves. True to their brief all the five chapters explore the tension between law and justice, albeit from very diverse angles. Needless to say, in each case law is found to be an inadequate partner of justice. The first two chapters look at the Constitution proper, scrutinising the constitution making processes and, the exclusions that were necessary for completing the process of constitution making. The third chapter documents nearly 60 years of Constitution-based social justice policy and programming, examining the impact of politics and other real world considerations upon the purer notion projected by the Constitution. The fourth chapter deconstructs the role played by the Supreme Court in the failure of the social justice mandate inherent in Article 16 of the Constitution—reservations for Dalits and Adivasis—in the course of over 50 years of judicial review litigation. The last chapter examines the ways in which law constructs sexual minorities as anti-citizens, denying them equality. In ‘Justice in the Time of Transition: Select Indian Experiences’, Professor Sabyasachi Basu Ray Chaudhury examines the nature of discourses on justice in India in the times of transition. Arguing against
Introduction
31
the conventional understanding of transition as a movement from authoritarianism to democracy, something that connotes transition as a one-time affair, the chapter suggests that India has gone through multiple, overlapping transitions: from colonial to post colonial society, from an agricultural to an industrial one, from caste stratified to egalitarian, and so on. Therefore, he argues, one should not place too much emphasis on political transitions, while defining the notion of transitional justice for, in the final analysis, political transitions are merely specific points on a common continuum of change, in any society. Nor can we, he says, ever be complacent about a society’s ability to be just. Rather, he suggests ‘any people anywhere have the potential for evil on a massive scale’. Tracing the evolution of the notion he arrives at the spirit of Ubuntu, the African philosophy of humanism, which places a premium on harmony, friendliness and community as being the ultimate aim of all conceptions of transitional justice. He takes up two case studies from the Indian experience to illustrate the point. All constitutions are framed in a time of transition, says the author, and the Constitution of India was no exception. A quick survey of the provisions of the Constitution, and their operation in the decades following its adoption is sufficient to reveal the myriad problems that the quest for social justice faces in times of transition. The chapter argues against treating these as failures, suggesting rather that the ‘transition was too complex and multi-layered to be managed’. It uses the example of the unsuccessful attempt by the Constituent Assembly to adopt Hindi as the national and the official language of the nation as evidence in point. To elucidate on lengthy and continuing transitions as being much more the norm than is generally assumed, he then examines the ‘Land Question’ as it has arisen in the course of India’s attempted transit from a predominantly agricultural economy to an industrial one. He shows how shifts in focus can lead to redefinition of what is just, both politically and socially. The chapter shows that not only the people even political parties get trapped in the contradictions generated by these shifts in focus, using the example of the evolving rhetoric of the Left Front government in West Bengal in its attempts to frog leap to the forefront of the neo-liberal progressiveness sweeping the country. Professor Samir Kumar Das’ ‘The Founding Moment: Social Justice in the Constitutional Mirror’, examines the validity of the view that
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the framing of the Indian Constitution was a special moment in time lying, so to speak, between the pre- and post-history of the idea of social justice. It explores this notion through an examination of the processes that underlay this framing, arguing that this perception is both flawed and true. He questions the propensity to situate the ‘performance’ of the constitutional mandates for justice outside the document, arguing that many of the reasons for the growing gap between the ‘promise’ and the ‘delivery’ are to be found in the exclusions adopted during the process of constituting the mandates. Invoking Agamben, Professor Das argues that the ‘constitutional mirror’ reflects only those realities that it, first, recognises. This gives rise to a terrible and irresolvable conundrum, which is echoed in the last chapter of this volume: namely that law not only facilitates the dispensation of justice but also its denial. ‘If justice is what applies to the body that deserves to claim it, an ‘exception’ to it is necessary for keeping others at bay and wiping them out of the public gaze’ (emphasis mine). The chapter explores its thesis through four themes: colonial justice, that is, the notion that in order to emerge in its full resplendence constitutional justice must colonise all other notions of justice; justice as threshold, that is, the process of equalising opportunities within the ‘social body’ constituted by the Constitution, which—given the nature of social bodies—can never be final and, which can never be interpreted so as to threaten the very existence of the social body; justice as sovereign indeterminacy, that is, the pro-pensity (nay, the necessity) of the sovereign to remain above the law, so that it is continually enabled to reconstitute the ‘social body’; and justice as proportions, that is, the importance of giving due weight to the practical considerations of ‘political safety and prosperity’, in maintaining a cohesive ‘social body’. The third chapter is a deceptively simple narrative of the ‘intricate interplay of social movements for fair representation, popular politics and the moderating as well as the legitimising role of the judiciary’, traced through the history and evolution of reservations in India. Bharat Bhushan, eminent journalist and editor of the national daily, Mail Today, argues that politics rather than law must be deemed to have played the primary role in determining both the nature and extent of reservations and the timing and the manner of their
Introduction
33
implementation. The role of law, and the judiciary, he says, is more in the nature of an umpire-cum-police, using the normative standards given to it to blow the whistle, return the contending parties to their respective corners and, once the heat of the moment has passed, allowing them to slug it out again. Illustrating his thesis, the paper opens in the manner in which, in August 1990, the then Prime Minister V.P. Singh, dusted out the report of the Second Backward Classes Commission, or the Mandal Commission, and declared his intention to implement it, with the object of forestalling his deputy, Chaudhary Devi Lal from usurping his mantle. Fast forward to 2005; just before the legislative assembly elections in three important states, Arjun Singh, the Congress Minister for Human Resource Development at the Centre, declares that government would reserve seats in all professional studies institutions and universities run by it. In both cases, politics cloaked itself in legality to justify its actions. In both cases, the Supreme Court was required to intervene to ‘strike a balance’.4 Illustrating further, the chapter traces the history of reservations in India from pre-independence days, including an analysis of the recommendations made by the series of commissions set up by the central and state governments. It brings out the contentiousness of the issue, discussing the dissentions within these commissions, and without; which inevitably led to the constitution of yet another commission. Analysing the egalitarian promise of the Constitution, the chapter juxtaposes it with the Supreme Court’s interpretation on one hand and the reports of the two Central Commissions on the other, to bring out the complex equations of caste and equality that these constitutional bodies have had to grapple with. On the whole, the chapter argues that the political overreach of the governments of the day has been checked by judicial restraint, striking an inadvertent if not too happy balance till date. The chapter by Ashok Agrwaal, ‘Trivialising Justice: Reservation under Rule of Law’, should be read in conjunction with the argument advanced herein above about the nature of justice under rule of law. Read thus, its thesis is seen as having two parts. The first part, delineates a theoretical framework for interpreting the Supreme Court’s peregrinations in the realm of social justice. He argues that the quest for justice is, essentially, a quest for power, sufficient for the holder to be able to negate (or negotiate) injustice. Suggesting
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that the primary use of law is to legitimise the exercise of power, he argues that law’s (and the rule of law’s) symbiosis with justice must, therefore, lead to tyranny. Thus, under the regimes of the rule of law, justice and its processes become the stuff of illusion, used ‘to keep the masses quiescent’. In this conception, theories of justice, such as that of Rawls, become the means of destroying all ideological positions, leading eventually to a state of totalitarian certainty. The second part of the chapter explores the politics of the Supreme Court’s judgements, in the context of reservations for Dalits (and Adivasis) in government jobs. It argues that the Supreme Court has, collectively, displayed a singular lack of clarity and will, verging on the culpable, in delineating its vision of social justice for the Dalits. Criticising the Court’s quest for ‘balance’, which is harped upon in many of its judgements related to this issue, the chapter argues that the emphasis has helped perpetuate the inequality and imbalance, thus negating the purpose of reservations. The indictment of the Court’s approach is also based upon the fact that it has had, since 1964, the benefit of a simple straightforward solution to many of the most intractable problems posed by the issue, articulated by Justice Subba Rao in the Devadasan case. Justice Subba Rao argued that till such time as the Dalits and Adivasis become adequately represented in public employment, a provision for reservation of posts (or vacancies) for these categories of persons could not be struck down merely because such provision lessened the chances of non-Dalit and non-Adivasi candidates. He, further, asserted that the injustice to individual general category candidates was inevitable in the context of reservation. Oishik Sircar’s ‘The Fallacy of Equality: “Anti-Citizens”, Sexual Justice and the Law in India’, in a sense, sums up many of the arguments made in the other chapters and develops them in order to expose the duality of law. He shows how, even while guaranteeing equality and equal protection, law excludes sexual minorities, in fact penalises them, solely on the grounds of their ‘different’ identity. Taking a cue from Foucault’s conception of law as a Panopticon, disciplining the deviant, the chapter illustrates its tyranny—by examining the manner in which sanction is accorded to public participation in this venture—forcing the sexual minorities into hiding. Yet, compelled by law’s virtual monopoly over remedies for justice, the deviant minorities are forced to repeatedly seek recourse to the same law, in their quest for a life with a modicum of equality and dignity.
35
Introduction
The chapter questions the efficacy of law as a medium of justice for sexual minorities while suggesting its inadequacy as a general case. It goes on to survey the other methods employed by sexual minorities, to assert their right to equality and dignity, arguing that, it is only by a strategic engagement with law can these minorities hope to achieve some success. It examines the manner in which the HIV/AIDS pandemic has given visibility, and a degree of acceptance, to sexual minorities. Though desirable in itself this has also exposed schisms within the category of sexually deviant persons, based on class and caste divides. It argues that in order to be truly subversive and to facilitate the emergence of ‘languages of resistance’, the construction of a ‘counter-heteronormative politics of equality—foregrounded in the layered realities of deviant lives’—is essential. In conclusion, it seems to us that the five chapters in this volume mesh together in curiously coincidental ways: as if the authors had consulted with each other before, and during, the writing of their respective chapters. While it is true that we did participate in a consultation organised by the Calcutta Research Group in Darjeeling in July 2006, we can say from personal experience that we came away from that meeting with no idea whatsoever about what we would write upon. It took us several months of musing, and several more of writings, before the ideas concretised into the chapter. All this time we had not a word of consultation or discussion with the other authors. While Professors Samir Das and Sabyasachi Chaudhury, being friends and colleagues in the same city, must surely have been in discussion with each other from long before, the manner in which their ideas complement with those of the others must be attributed to serendipity mentioned above.
NOTES 1. Shankaracharya or Adi Shankara, one of the greatest personas of Indian history, propounded that the physical world was illusory or Maya. On one of his visits to a king of his times, a tiger was let loose, just as Shankaracharya approached the king. On seeing Shankaracharya run and climb a tree, the king and his courtiers jeered at him, saying the tiger was only Maya. Shankaracharya replied that his climbing the tree was also Maya.
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2. Patently, the veil of ignorance is the Rawlsian equivalent of Hayek’s price mechanism, with a striking difference. While the price mechanism is adjudged the best (most efficient) allocator of resources, by allowing the decentralised (self) knowledge of millions (billions) of individuals to be ‘shared’, the veil of ignorance, assumes that by blinding people to all facts (about themselves), we can ensure that they would choose the ‘best’ (most efficient?) notion of justice. 3. Cohesion is an essential attribute of a functional polity. Since social justice (as defined) tends to rend asunder (the privileges from the privileged) it is desirable to have strong cementing factors operating simultaneously. 4. The litigation pertaining to the second declaration is still continuing.
Gulamiya Ab Hum Nahi Bajeibo
37
1 Justice in the Time of Transition Select Indian Experiences SABYASACHI BASU RAY CHAUDHURY
J
ustice is very often considered to be the constant and perpetual wish to render everyone his/her due. In this sense, it is perhaps quite elusive, in terms of legal jurisprudence. But, at the same time, the eternal eagerness to reach a cherished goal of a just world and, more importantly, the contested claims for justice by different groups of people sharing the same territorial, social, legal and political space, make the discourse on justice, particularly that on social justice, quite thought-provoking. Much has perhaps been written and debated on social justice but since India is seen as comprising, in many respects, a stable political–legal society, perhaps not from the perspective of transitional justice. We propose to re-examine the nature of discourses on justice in India, in times of transition. The concept of transitional justice has gained great popularity over the last 20 years and may appear to be quite useful. The concept of transitional justice came to the fore, in view of the establishment of the Truth and Reconciliation Commission (TRC) in South Africa, as that country was groping for a post-apartheid just system, after the collapse of its age-old apartheid regime. Later on, transitional justice gained further acceptance with the ‘new wave’ of democratisation across the globe in the late 1980s and early 1990s, when many other countries were going through another kind of transition, from an authoritarian political system to some kind of a democratic one in the
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post-Soviet world. These developments brought the issue of transitional justice to the fore of the contemporary discourses on justice. We shall briefly deal with the concepts of justice and transitional justice. We shall also try to understand whether and to what extent, transitional justice can be included in the contemporary discourses on social justice. Hence, our query would be: can transitional justice be relevant in the understanding of social justice? Can the idea of transitional justice be applied to different transitions that have been experienced or still being experienced in one form or the other, in present-day India? In short, we shall try to examine the relevance of the idea of transitional justice in India in the context of the dispensation of social justice in this essay. Subsequently, we shall select two specific moments of transition in India to understand how this plural society dealt with the dispensation of justice during those transitions. We shall first look at India’s transition from colonial to post colonial times. We shall examine the significance of the Constitution of India in dealing with this transition. We shall also argue that, transition cannot always be viewed as a one-time affair. Rather, transitions may continue in different forms, over a fairly longer period of time in any society or polity. In other words, a country like India goes through multiple, and very often, overlapping transitions. This perspective of multiple and overlapping transitions would later help us to look at the return of the land question in India in the contemporary period—marked by a transition to a neo-liberal developmental agenda—as an issue of social justice, with ‘spatio-temporal fixes’, in an apparently ‘settled’ political situation.1 This, we hope, will result in an analysis of whether a narrow interpretation of the idea of transitional justice is effective in tackling the question of justice, in a plural and dynamic society, such as India in an effective manner.
JUSTICE
AS
RECOGNITION
In Plato’s Republic, Socrates asks: ‘What is justice?’ Perhaps since then, this has been one of the most vital questions of social and political ethics. But any attempt to answer that recurrent question brings us to another, bigger question: what is injustice? Most moral and political philosophers have treated injustice as the simple absence of justice: as
Justice in the Time of Transition
39
a kind of conduct (or situation) where the principles of justice are premeditated to manage or eradicate. From this point of view, injustice is an abnormality that must and can be avoided. If this abnormality can be avoided, we can gradually approach towards a world of justice. A vast amount of literature has been produced in the political philosophy that may help one to understand the concept of justice. For our purpose, we shall mainly concentrate on some of the recent contributions to this literature emerging since the 1970s. For instance, Robert Nozick argues that, a complete principle of distributive justice will demand that the current distribution of resources can be considered just if, and only if, everyone is entitled to their current holdings (Nozick 1974: 149–231). Any change to that distribution (holding) is considered only to the extent, that the new distribution emerges from a previous one through legitimate, non-coercive means. In Nozick’s own words, ‘Whatever arises from a just situation by just steps is itself just’ (1974: 151). On the other hand, John Rawls and a few other political philosophers have explored the social significance of ‘justice as fairness’ quite extensively in the late 20th century (Rawls 1971). Rawls, in particular, has been concerned about the ways in which major social institutions determine the division of political, social and economic advantages, through social interaction and a shared concept of what is good or perhaps best for society as a whole. However, Rawls’ theory of justice as fairness, presumes a strict compliance to and an assumption of the presence of a well-ordered society and some form of a working government, that may not actually exist in many transitional societies across the globe. Clearly justice is a very complex ethical, legal, institutional and emotional issue. It seems obvious that these complexities would be rendered all the more difficult in societies undergoing some kind of transition. Transitions usually are times of contestation in historical narratives; times potential for counter-histories. These times, therefore, witness relentless calls for apologies, reparations, memoirs, and all modes of account-settling related to past sufferings and wrongdoings. On the other hand, since the construction of history remains fundamental to the edifice of a state’s political identity, the ‘official history’ churned out by the state, through the text books, official publications and other propaganda materials, is continually pushing the other histories out of the public domain. This leads to another aspect of justice, that is, ‘justice as recognition’. In the Kantian sense of
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moral respect, justice involves a form of recognition. After all, dignity is something that all human beings have in common. Therefore, all individuals have a need to be recognised as equal among equals. The competing claims of ‘recognition’, in a transitional society, will frequently give rise to a ‘politics of recognition’ (Taylor 1994). But, transitional societies are not only those, as mostly believed, that are moving from a phase of authoritarianism to one of democracy. Though literature on transitional justice almost invariably focuses on transitions to democracy, we shall argue here that transition to non-democratic but constitutional regimes may also offer interesting examples. We shall also argue, with a few illustrations from Indian experiences, that other types of transition, for example, a transition from the colonial past to a de-colonised future, or a transition from a predominantly agricultural economy to an industrial one, with the aim of a somewhat linear progress, may also be significant in the contemporary political discourses on justice. Before coming to the Indian experiences, let us first take a brief look at the idea of ‘transitional justice’.
WHAT
IS
TRANSITIONAL JUSTICE?
Transitional justice has emerged from the isolated practice of a variety of mechanisms, all attempting to address the past. Some would trace the origin of transitional justice to the World War I; but the intellectual and political origin of transitional justice can be traced back to the Nuremberg trials. It is based on the then revolutionary proposition of individual criminal responsibility for international crimes. These crimes, in turn, originate in the laws of war and international human rights laws. However, it has largely outgrown its earlier framework. The post–Cold War era was marked by the end of this post-war internationalism and, a simultaneous wave of democratic transitions. In this scenario, towards the end of the 20th century, global politics was characterised by an obsession with conflict resolution, followed by a persistent discourse of justice throughout law and society. This continual discourse was concerned about transnational justice and transitional justice. There was a growing awareness about unresolved, old injustices that seemed to have delayed transitional justice,
Justice in the Time of Transition
41
leading to demands for some form of redress of past sufferings and wrongdoings or, at least, a recognition that these happened. Thus, the study of ‘transitional justice’ has gradually emerged over the last two decades, at the intersection of jurisprudence, comparative politics, and political theory. In view of the large-scale politicoeconomic transformations at the turn of the 1990s in eastern Europe, the unshackling of South Africa from a long drawn apartheid regime, the new or ‘third wave’2 of democracy sweeping the world, and the growing popularity of the international human rights discourse, an academic literature has evolved that seeks to examine regime changes, primarily in countries undergoing transition from a non-democratic to a democratic regime and, in post-conflict countries. This emerging academic literature aims to identify distinctive jurisprudential, moral and institutional dilemmas, or problems, of transitional justice. There is no easy answer or neat definition of transitional justice. However, there appears to be a broad consensus among the scholars on what transitional justice should usually include. For example, the International Commission for Transitional Justice (ICTJ) has identified five main areas of transitional justice. These are: prosecutions, truthtelling, reconciliation, reparations and institutional reform. One of the principal objectives of transitional justice is coming to terms with the past, in a way that helps to plan a future that moves beyond that past. One of its greatest challenges is how to honour the injuries of the past, while creating the possibilities for new ways of being in future. In such a scenario, transitional justice is the legal and administrative process after a political transition, for the purpose of addressing the wrongdoings of the previous regime. The new regime needs to decide what adds up as wrongdoings and how to sanction the wrongdoers. It also has to decide what counts as suffering caused by these wrongdoings and how to compensate the victims. In other words, in transitional moments, the question of justice figures prominently, in a manner that is both backward and forward looking. The successive governments must think creatively about building institutions that would bring justice to the past by repairing it. This simultaneously demonstrates a commitment that justice will form the foundation of governance in future. According to Martha Minow, justice at this juncture amounts to replacing ‘violence with words and terror with fairness’, and steering a ‘path between too much memory and too much forgetting’.
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The backward-looking perspective of transitional justice creates a mechanism to compensate victims for their losses, to punish wrongdoers and to persuade individuals to withdraw from property, that was wrongfully acquired. It also attempts to uncover the truth about past events. This can also be understood in forward-looking terms. For example, it may provide a method for the public to bring back lost traditions and institutions. Similarly, it may deprive former officials of political and economic power that they could employ to discourage restructuring. It may also indicate a commitment to property rights and democratic institutions, through the establishment of constitutional precedents that would deter future leaders from repeating the abuses of the old regime. The tools of transitional justice, therefore, may take different forms. This includes trials, truth commissions, reparations, apologies and purges. The trials are usually public proceedings in which legal forms are used as much as possible. The perpetrators from the earlier regime may be charged with crimes. However, they are usually supposed to be given a chance to defend themselves and lawyers. They would also be allowed to cross-examine the witnesses. They may also enjoy other procedural protections. The truth commissions may also conduct trials. Their purpose is to reveal the identities of collaborators or perpetrators, and the nature of their activities, but not to punish except by exposing participants to public indignation. In fact, those who confess their crimes before these commissions are often offered amnesties. But, we shall return to the issue of efficacy of truth commissions again, later. The law applied against the defendants in these trials varies considerably. It can be a new law that applies retrospectively. It may also be the old laws, which were enacted during the earlier regimes but were never enforced. Similarly, international law that was nominally respected in the old regime, but not incorporated into the legal system, may also be applied. Some post-transition governments also employ the intermediate devices of retroactive extension of statutes of limitations that had expired. In certain situations, transitional justice may also rely solely (or nearly so) on existing legal remedies, to rectify grievances. In such cases, it virtually becomes an extension of the regular criminal justice system. But such a process may fail to take into account the limits of law, particularly in cases of the mass atrocities, like genocide, ethnic cleansing, and crimes against humanity.
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Transitional justice usually implies a political and economic transition that is consistent with liberal and democratic commitments. A change of regime should involve a minimum of violence and instability, and should respect rights. People should either retain their property rights, or be compensated for their loss. Similarly, the supporters of the new regime should not profit from the transition, or manipulate it for personal ends. Transitional justice allows a balancing of liberal commitments with political safeguards. It is achieved when those norms are respected to the extent necessary to, and consistent with, the consolidation of liberal democratic institutions. Some experts have rejected the term ‘transitional justice’ itself, and prefer instead, to talk in terms of ‘post-conflict justice’. ‘Post-conflict justice’, however, does not really address the complexities and processes of political transitions, whether through conflict, negotiation or collapse of the state. For instance, it would exclude transition from apartheid in South Africa. In South Africa, the people definitely experienced ghastly violence but the violence strategies of apartheid perhaps did not amount to conflict per se. There is also a significant trend to reject the very notion of transitional justice on the ground that it is retroactive, and thus, inherently illiberal. This perspective suggests that the new regimes should reserve their energies exclusively for ‘forward-looking’ measures of nation and state-building and economic development. During moments of transition, law is, as Ruti Teitel (1995) puts it, ‘caught between the past and the future, between backward-looking and forward-looking, between retrospective and prospective, between the individual and the collective’. In fact, to her, if in ordinary times, the rule of law means adherence to the settled rules, as opposed to arbitrary governmental action, in periods of transition, this value of legal continuity seems seriously challenged.
BEYOND RETRIBUTIVE JUSTICE There are important moral objections to historical amnesia. Trials, reparations, rehabilitation and restoration processes are means by which a state can acknowledge past wrongdoing in order to preserve the memory of crimes and their victims. On the other hand, forced
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silence tends to create, as Paul Ricoeur puts it, ‘imaginary unity’—a kind of artificial stability fostered by communal rites and ceremonies. However, the price to be paid may become quite high. In a peace built upon the suppression of public memory, the wounds from the historical wrongs may be erased from the official discourses, turning the victims into nameless, faceless abstractions. They may be treated as if they simply do not matter; as though their sufferings and needs, their dignity and moral status as human beings, do not need to be taken into account. This message of moral insignificance adds insult to the injuries, giving rise to further wounds of silence. Recognition conveys a fundamental moral message. It sends a strong message that there is care for people: the feelings of hurt, anger or resentment of all people are the same. In the words of Archbishop Desmond Tutu, the former chairman of South Africa’s TRC: We contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment. In the spirit of ubuntu, the central concern is the healing of breaches, the redressing of imbalances, the restoration of broken relationships, a seeking to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community that he has injured by his offence.3
Ubuntu, which cannot be literally translated but among its many meanings, one is that ‘to affirm one’s humanity one must recognise the humanity of others’. It is borrowed from the African philosophy of humanism, which places a premium on harmony, friendliness and community. At the heart of this concept of justice is the acknowledgement that the need for ‘recognition’ is intrinsic to the restoration of social equality. (In my view, the word equanimity—equality + amity—is more suited [than equality], whether one looks at the dictionary for meaning or is willing to try an experimental meaning.) Accordingly, it is the work of justice to bring the truth to light and to fight against the erasure of memory. As Vaclav Havel argued, citizens must live in truth, but not seek vengeance based on that truth.
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TRUTH COMMISSIONS
AND
MANY TRUTHS
Rustom Bharucha in one of his recent essays argues that ‘the relationship between truth and reconciliation is essentially volatile’, although this may not appear to be the case when we see these terms coupled together, bound by a seeming causality (2001). He points out that, ‘at a normative level, an exposition of truth would seem to result in the possibility of reconciliation, but in practice, this is not always the case’. In fact, there is no one Truth. Rather, there are many possible truths. Hannah Arendt was probably talking sense when she said that, ‘all sorrows can be borne if you put them into a story or tell a story about them’ (Arendt 1993: 262). After all, to the extent that the teller of factual truth is also a story-teller, s/he brings about that ‘reconciliation with reality’ (Arendt 1993). If we look back at the dominant perspective of the past, notably Truth Commissions, we may confront a different reality. For instance, the Report (1998) that emerged out of the TRC of South Africa, made it quite clear that the teller of factual truth is not a story-teller, and the story-teller is no teller of facts. The Report differentiated very sharply between ‘factual or forensic truth’ and ‘personal or narrative truth’, among other truths. ‘Factual truth’ was defined as a form of scientifically ‘corroborated evidence’, drawn on ‘accurate information through reliable (impartial, objective) procedures’, framed within a social scientist methodology of research (Sanders 2000: 74). This truth has been unequivocally prioritised in the Report. In contrast, ‘personal or narrative truth’, conveyed through the medium of storytelling, is granted, at best, some kind of ‘healing potential’ for the victims in particular (TRC 1998: 12). However, it is also interesting to note that, these stories provided the primary evidence of the Truth Commission. In fact, the most terrible truths of the violence of apartheid were voiced through personal stories. But ultimately, it would seem that the ‘truth’ of story-telling was too ‘subjective’ to be treated as accurate evidence. Within the rigours of the written word, the ‘veracity’ of stories was called into question, even if ‘they provided unique insights into the pain of South Africa’s past’ (Bharucha, 2001). Bharucha pointed out that, with such a patronising attitude, it is hard to imagine that apartheid’s story-tellers could be reconciled with reality, still less with their fractured selves, even though this lapse would be emphatically
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denied by TRC’s advocates. Bharucha is perhaps right when he says that, there is a privilege in telling a story, even a sense of empowerment in a post-conflict situation. Be that as it may, if we accept that transitional justice is continuous with ordinary justice, we perhaps need not always treat the measures ensuring transitional justice, as suspect on moral or institutional grounds. In any legal system, the problems relating to transition are inevitable indeed. The retrospective measures themselves may also have important forward-looking justifications. Still, foregoing any retrospective measure may be an incredibly extreme solution to the problem of transition. Perhaps, an attempt to eschew transitional measures is itself a transitional measure, and usually a poor one, but there is hardly any credible reason to treat transitional justice as suspect, in general.
TRANSITIONAL JUSTICE IN A ‘NON-TRANSITIONAL SOCIETY’? Many experts on transitional justice somehow, tend to overlook the ordinary law of consolidated democracies. They seem to have a stereotypical picture of justice, in which all laws seem to be prospective. An individual, according to this estimate, receives compensation for all harms inflicted upon a person or property by others, without any cost. In these situations, the experts do not normally see any ‘transition’, as the legal system appears to run smoothly in a settled equilibrium. Many experts on transitional justice, thus, usually treat regime transitions as a self-contained subject. This, in a way, tends to deny the importance of assessing the political transitions and identifying the similarities between different transitions. This is also likely to ignore the wide variety of transitions that take place in the legal systems, of the apparently more consolidated democracies or ‘settled’ political systems. But, as we shall humbly argue, in reality ordinary lawmaking has to cope on a regular basis with all kinds of policy shifts caused by the large-scale socio-economic and technological changes. Therefore, while addressing the issue of transitional justice in this chapter, our humble submission is that both legal and political transitions usually
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lie on a common continuum. Political transitions are merely specific points on this continuum. We, therefore, should not draw too stark a line between ‘transitional’ societies and ‘non-transitional’ societies. Nor can we ever be complacent about a society’s stability or justice. One should rather recognise, that ‘any people, anywhere, have the potential for evil on a massive scale’ and that ‘no continent, no region, no people are immune from it’. Societies, after all, are not static but constantly in flux. In order to elucidate this point further, we first need to examine some of the recent definitions offered by experts on transitional justice. For instance, Teitel defines transitional justice as, ‘the view of justice associated with periods of political change, as reflected in the phenomenology of primarily legal responses that deal with the wrongdoing of repressive predecessor regimes’ (2003: 893). Teitel, thus, in a way, provides a normative challenge to Schumpeterian notions of a successful transition marked by fair elections, and she focuses almost exclusively on (re-)establishing the rule of law through legal mechanisms—prosecutions, historical inquiry, administrative justice, reparation and constitutional justice (Teitel 2000). However, her explicit concern with bringing ‘illiberal’ regimes into the fold of liberal democracy, as well as her argument that transitional justice applies in ‘extraordinary’ circumstance, in periods between such regimes, tend to treat the established liberal democracies as benevolent models. Roht-Arriaza, in her introduction to Transitional Justice in the Twenty-First Century, widens the context of transitional justice by defining it as ‘that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law’ (Roht-Arriaza 2006: 2). Although she dismisses Teitel’s ‘problematic’ definition for ‘overvaluing’ law and underestimating periods of flux, Roht-Arriaza nonetheless takes a ‘narrower’ view. This collection of essays puts emphasis on the truth commissions, criminal prosecution, vetting and reparation. Contrarily, Mani provides a broader understanding and critique of what she terms ‘restoring justice within the parameters of peacebuilding’ (Mani 2002: 17). Her prime concern has been the lowincome, war-torn societies. She argues that, building peace and building a just society are inseparable processes.
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The UN Secretary General, in his 2004 report, defined transitional justice as: ....the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. (UN Report, 2004: Paragraph 8)
However, a perusal of all the above definitions would indicate that the concept of transitional justice can only be effective in particular kinds of transition: authoritarianism to democracy, war-torn, conflict-ridden society to a post-conflict society, and so on. We shall try to argue that the concept may be useful, albeit in a modified form and broader sense, in most societies; since all these societies are experiencing transition in one or the other significant forms. Moreover, our humble submission is that, transition does not begin at a particular moment and come to an end in another particular moment. Transition is, sometimes, a perennial process and different kinds of transitions may get enmeshed with one another in a society, at a given moment. Therefore, the idea of transitional justice may also be stretched to some degree, in order to understand and explain other situations of transition, and for the sake of a search for just society against this changing backdrop.
CONSTITUTION-MAKING AS TRANSITIONAL JUSTICE IN INDIA The deliberations over social justice in the Indian context can perhaps be best understood when situated in concrete political realities and, in the transitional context that includes political, juridical and social contingencies. After her de-colonisation in 1947, along with the partition, India also had to grapple with a range of complex challenges: like ageold caste-based exploitation, riots and pogroms, involving different religious communities and various ethnic conflicts. The question of justice, figured prominently in these situations.
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Hannah Arendt once wrote: Without being forgiven, released from the consequences of what we have done, our capacity to act would, as it were, be confined to one single deed from which we could never recover; we would remain the victims of its consequences forever, not unlike the sorcerer’s apprentice who lacked the magic formula to break the spell. Without being bound to the fulfilment of promises, we would never be able to keep our identities; we would be condemned to wander helplessly and without direction in the darkness of each man’s lonely heart.… (1958: 212–13)
A Constitution may not be that magic formula, and recovery may not be smooth and easy. Experiences from different transitional societies indicate that the rule of law is not a settled procedure and justice is not a trivial issue that can solely depend on the rule of law. However, without a credible machinery to enforce the law and resolve disputes, the situation can rapidly deteriorate into a general state of violence. Herein lies the role of the Constitution. All constitutions are framed in a time of transition. The Constitution of India was no exception. Framed in a period of painful transition, it tried to deal with the questions of justice confronting the polity in the wake of de-colonisation and partition of the country. The issue recurs again and again in the document, in different forms. Mrs Vijayalakshmi Pandit, from the United Provinces, declared during the debates in the Constituent Assembly, on 20 January 1947 that ‘in an independent India, the fullest social, economic and cultural justice to individuals and groups will be conceded’. Accordingly, the Preamble to the Constitution of India mentions that it wishes to secure ‘justice, social, economic and political’ for all its citizens. Direct references to the question of justice can also be found in the Part IV of the Constitution containing the Directive Principles of State Policy. Article 38, Paragraph 1 in this chapter indicates that the ‘State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’ In the same chapter, Article 39A says that the ‘State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen, by
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reason of economic or other disabilities.’ Article 46 stipulates that the ‘State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.’ In the context of caste-based discrimination, justice has been thought of in the form of positive discrimination. So, while Article 15(1) of the Constitution says that, ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, or Article 15(2) indicates that No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
The following Article 15(3) clarifies that, ‘Nothing in this article shall prevent the State from making any special provision for women and children’ and Article 15(4) mentions that, ‘Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.’ Similarly, Article 16 dealing with equality of opportunity in matters of public employment points out that, ‘There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’ (Paragraph 1). But Article 16(4) hastens to add that, ‘Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.’ Concern for allocative justice—in the form of allocation of resources among the provinces—is seen in Article 262, which addresses the question of adjudication of disputes relating to waters of inter-state rivers or river valleys. Article 262(1) says that, ‘Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley.’
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Articles 370 and 371 may be seen as interim measures to deal with the people who were reluctant to accept India’s control over their territory. Article 370 deals with the temporary provisions with respect to the State of Jammu and Kashmir. Article 370(b) of the Constitution mentions that the power of Parliament to make laws for Jammu and Kashmir shall be limited to: (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India, as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Similar provisions, in the form of 371A, were subsequently provided (in 1962) for the State of Nagaland. Paragraph 1 of Article 371A declares that: Notwithstanding anything in this Constitution, (a) no Act of Parliament in respect of (i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law, (iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.
However, as indicated earlier, along with de-colonisation came the partition of India. The large-scale bloodletting over the partition, the death and torture of men, women and children, the dispossession of land, property and milieu and unprecedented displacement of people were perhaps too much and too complex to handle at that nascent stage of the post colonial state of India. By and large, the sense of dispossession remained with the refugees from the western provinces, and East Bengal for generations (Samaddar 2002b). Therefore, the partition has remained as a permanent scar in the Indian psyche that has kept the Muslim question rather unresolved in India. In India, many Hindus treated (and continue to do so) their Muslim fellow citizens, as potential supporters of the ‘enemy’ state of Pakistan and, therefore, suspects. This, in turn, made the Muslims somewhat second-class citizens in the country. Despite the assurances in the chapter on Fundamental Rights, the condition of the Muslims
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remains pathetic, as is evident from the recent Sachar Committee Report. In other words, despite their rights being assured in the Constitution, justice remained elusive for Indian Muslims in the postpartition period. Similarly, caste atrocities were regulated to a great extent through constitutional and legal measures. The principle of reverse discrimination enshrined in the Constitution for the Scheduled Castes and Scheduled Tribes was reassuring for these communities. But over six decades, the reservation issue has become more and more complex due to various social, economic and political reasons. The marginalisation of Dalits continues, and the indigenous communities have been the worst hit by the development strategies, adopted by the State, to achieve rapid economic growth. As Walter Fernandes has shown in his recent studies, most of the development-induced displacement in India since Independence has been of people belonging to the indigenous communities. Needless to say, the question of justice takes a crucial turn when people are uprooted from their habitat and detached from the forest resources which they used to depend upon for their very existence, in the name of expanding and industrialising the economy. Over and above all this, innumerable instances of state abuse of power have made the question of justice more critical over time. An ironical fallout of constitutional justice has been the demand of Rajasthan’s Gujjars, otherwise classified as ‘Other Backward Castes (OBCs) in the state, for being declared a Scheduled Tribe (ST). The community launched its agitation in 2007, as the state’s Bharatiya Janata Party (BJP) government appeared to have reneged on its 2003 election promise of declaring the community a ST. While the Constitution does not specify the criteria on the basis of which a tribe can be classified as ‘scheduled’, there exist criteria, defined over time, with characteristics that are ambiguous in themselves, such as backwardness, primitive lifestyle, inaccessibility and culture. At a time when the OBC share of reservations is itself divided among numerous communities, and in Rajasthan, it is the Jats who corner the larger share of such reservations, the Gujjars felt it was to their advantage to have their status ‘downgraded’; but the Meenas, numerically the most dominant ST in Rajasthan, apprehensive of a consequent division in their share of the reservation pie, are greatly resenting this demand. Consequently, the Gujjar quest for a ‘better’ place under the Indian
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sun is caught between a rock and a hard place (Zelliot 2007a). This situation also lends itself to the argument that, the rationality, or the legitimacy, of the Gujjar demands cannot be adequately understood, or addressed, within the framework of reservation politics (Kavoori 2007). Rather, their somewhat queer demand for the downgrading of the caste status, belying the basic premise of the process of Sanskritisation, articulates their alienation (arising from the superimposition of ideas of modern justice upon the caste system) in a superficial way. As members of a larger community, the Gujjars sense a challenge to their survival as bearers of a distinct and legitimate way of life. The growing socioeconomic and cultural dislocation of the Gujjars, in the context of the neo-liberal framework for development, over the last two decades, may also be a factor in their demand for the downgradation of the caste status. In fact, the transition in India, emanating from this shift of paradigm, from a model of the welfare state to a market-friendly state, has brought several questions of transitional justice to the fore once again. But, we shall discuss these a little later. The above instances are not to suggest that the Constitution of India has failed in dealing with the question of justice, in the historic period of transition. The framers of this document innovated a lot, as well as borrowed heavily from the experiences of other countries and their constitutions, to deal with the unprecedented transition that they faced. But, the fact remains that this transition was too complex and multi-layered to be managed. De-colonisation did not mark only one break with the past, that is, with the British colonial past; rather, it marked several breaks at the same time—economic, social and political. Against this backdrop, the Constitution of India emerged as a very important document to ensure restorative justice. A brief look at the Constituent Assembly Debates in India may perhaps help us understand, how the new constitutional document attempted to engage with the highly surcharged socio-political milieu in the newly-emerging multi-cultural nation. On 10 December 1946, when R.V. Dhulekar, a member from the United Provinces, intended to participate in the ongoing discussion in Hindustani, Dr Sachchidananda Sinha, the Chairman, asked him whether he did not know English. Dhulekar replied categorically that he knew English but wanted to speak in Hindustani nevertheless. When Dr Sinha reminded him that many of the members do not know Hindustani, R.V. Dhulekar emphatically replied that: ‘People who do not know Hindustani have no right to stay in India. People who are present in
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this House, to fashion out a constitution for India, and do not know Hindustani are not worthy to be members of this Assembly. They better leave’ (Constituent Assembly Debates). Thus, even the simple issue of the language to be used in the deliberations of the Assembly led to a verbal spat among the members. On the one hand, windows were opening for a new and independent future, while on the other, the traditional and primordial identities of the inhabitants came to play a crucial role in the contestation over the claims of culture. The so far neglected rights of the Adivasis also turned into a matter of disagreement. Mr Jaipal Singh, a leader of the indigenous people from Bihar, pointed out, ‘I rise to speak on behalf of millions of unknown hordes—yet very important—of unrecognized warriors of freedom, the original people of India who have variously been known as backward tribes, primitive tribes, criminal tribes and everything else’ (Constituent Assembly Debates). He went on: ‘… I am proud to be a Jungli, that is the name by which we are known in my part of the country.’ He said, ‘the whole history of my people is one of continuous exploitation and dispossession by the non-aboriginals of India punctuated by rebellions and disorder.…’ Singh stressed further, ‘I take you all at your word that now we are going to start a new chapter, a new chapter of Independent India where there is equality of opportunity, where no one would be neglected’, but queried: Have we not been casually treated by the Cabinet Mission, more than 30 million people completely ignored? It is only a matter of political widowdressing that today we find six tribal members in this Constituent Assembly. How is it? What has the Indian National Congress done for our fair representation? Is there going to be any provision in the rules whereby it may be possible to bring in more Adibasis and by Adibasis I mean, Sir, not only men but women also? There are too many men in the Constituent Assembly. We want more women….
It needs to be recognised that even the best efforts can often fail to address the question of justice, as expected. After all, the question of truth with regard to partition, riots, caste atrocities and class distinctions has continued to remain elusive and, perhaps, that has kept reconciliation, so crucial to restorative justice, at bay till date. This incompleteness of restorative justice in India, in that period of transition, brings us to the next section where we shall briefly look at India’s transitions from a primarily agricultural economy to an
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industrial one, from a predominantly state-controlled economy to a neo-liberal market economy and examine how the issue of justice is being addressed in the milieu of these fresh transitions.
ANOTHER TRANSITION, ANOTHER JUSTICE Transitions are not only post-conflict phenomena between a violent or repressive past and a peaceful, democratic future. Such a view can problematically obscure continuities of violence and exclusion. Even post-conflict transitions are frequently long drawn out processes and conflictual relationships remain open, taking on different forms over time. India is currently witnessing another transition, as it tries to turn into an industrial giant from a predominantly agricultural society, in order to achieve a much higher rate of growth. While it has been able to register a 7–8 per cent annual growth rate in its economy, the ruling class aims to achieve a GDP (Gross Domestic Product) growth rate of more than 10 per cent per year, as it has been the case of the People’s Republic of China (PRC), for the last several years. The indigenous people, and people belonging to the so-called lower castes—mostly the poorest of the poor in the country—are especially subjected to the cost of this transition, being uprooted from their habitat and disconnected from the forest resources and land, on which they depend for their very existence. Their growing alienation from their traditional and customary entitlement of land and resources is bringing the question of justice back to the forefront, in the contemporary political discourse engulfing the country. In particular, we are witnessing the return of the land question in a different form. The attempted processes of land acquisition in Singur and Nandigram in West Bengal, or in Kalinganagar and many other places in Orissa, are proofs of the crucial importance of this issue, in this transition. In this context, it is interesting to note that India’s grand transition from a colonial entity to an independent one did not entail a radical recasting of some of the laws and regulations, enacted by the British rulers in their own interests. Rather, the Indian State preferred to continue with many of these laws. So, be it the Land Acquisition Act, 1894, the Forest Act, 1927 or the Indian
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Police Act, 1861—their writ continues to run unabated, even in post colonial India. The nation’s dependence on a colonial law of land acquisition even after 115 years of its enactment, the lack of a comprehensive rehabilitation and resettlement policy for the displaced people about whom it is well known that they almost exclusively rely on land and the agro economy for survival, and the gradual slide of a large number of people below the poverty line even as the neo-liberal economic policies of the state create new enclosures of wealth and opportunities, have brought India at another moment of transition that cannot be detached altogether from earlier transitions experienced by the country.
RETURN
OF THE
LAND QUESTION
In the ‘welfare state’ of the Nehru era and after, land had significance from the perspective of the welfare of the people. Since 1991, the focus has shifted and land is no more for agricultural activities alone. It is the repository of scarce mineral and other resources, required for large-scale industrialisation. Liberalisation has also generated a broad consensus, cutting across political divides, about the need for rapid economic growth. Till the other day, it used to be the constant grouse of the state governments that the then current fiscal dispensation starved them of both, resources and fiscal autonomy. Today, no one talks about these things. Instead, the states are now competing with one another in offering incentives and sops to attract domestic and foreign investments for their development. One can hardly differentiate between the Congress, the BJP, the CPI(M) or the TDP (Telugu Desam Party) in this context. When in power, they all seem to behave in a very similar manner, desperately displaying their ‘market-friendly’ credentials, to woo potential investors to their respective states. Of course, the same parties are up in arms against the ruling party, with regard to the land question, as members of the opposition in other states. We will look at the return of the land question in India, in general and, in West Bengal, in particular. The emphasis on West Bengal is apposite since this state has been ruled by the Left Front—a coalition of many left/communist parties—which has a long history of focus on the land question from the perspective of the tillers of the land. West Bengal is also appropriate for having
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been the ‘vortex of ideological politics’ ever since the de-colonisation of India (Basu Ray Chaudhury 1976). During the uninterrupted stint of the Congress rule in West Bengal, between 1947 and 1967, agricultural land continued to be controlled by landlords, despite the abolition of the zamindari system and the enactment of Land Ceiling Act. In such a scenario, the slogan of Langol jar, jomi tar (land for the tillers) in the 1950s and 1960s by the Communist Party of India (CPI), and later, the Communist Party of India (Marxist) (CPI[M]) raised a lot of excitement among the rural masses. When the Left Front government ascended to power in West Bengal in 1977, it rode on a huge wave of aspirations, particularly among the impoverished rural folk. Therefore, one of the first steps of the Left Front government, after 1977, was to introduce its famous land reforms programme in West Bengal. It was well known that a sincerely implemented programme of this kind—which had not happened anywhere in India till then— had significant potential for reducing poverty and promoting agricultural growth. Post-1977, it has been observed that protection of sharecroppers against possible eviction, and regulating sharecropping contracts in West Bengal, contributed to significant growth in the agricultural yields of the state (Banerjee et al. 2002). The Second West Bengal Land Reforms Act was passed as early as in 1971 but was never implemented. Later, under the Left Front government, it became the cornerstone of land reforms in West Bengal. This Act imposed a limit of five ‘standard’ hectares of irrigated land (equal to seven hectares of non-irrigated land) for a family of up to five members (with some qualifications). The Act required landowners to submit a return, providing details of the lands in their possession, their family size, and the surplus lands that they would consequently surrender. Using the provisions of this Act, the Left Front government redistributed land (distribution of patta [title]) and created an effective registry of sharecroppers (bargadars). The Left Front also introduced elected local self-governing institutions across the state, in 1978. Together, these measures empowered the poorer rural folk to an appreciable extent. Many marginal farmers got their ‘entitlement’ to land, something that they had not even dared to dream of. Over a million bargadars were registered by 1981.4 Empowerment of those, who were till then economically marginal rural inhabitants of West Bengal, also strengthened and expanded the electoral constituency of the Left Front. The direct involvement
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of the CPI(M) party workers and supporters in the process of land reforms through the newly introduced three-tier panchayat system, along with block level government employees, made the CPI(M) virtually the only visible political party in the agrarian Bengal. Operation Barga, as it was popularly known, attracted millions of people to the CPI(M) and its allies. The membership of the Kisan Sabha (a CPI[M] sponsored farmers’ association), increased about seven-and-a-half times between 1977 and 1990 from 1.3 million to 8.5 million (Lieten 1992). The ‘party office’, in any village or locality, became synonymous with the office of the CPI(M). This unprecedented synergy between the party organisation and the state government’s administrative structure helped the party strike deep roots in the political soil of the state, and became one of the main reasons for an interrupted rule of the Left Front in West Bengal for more than three decades, belying the conventional notion of rotation of governments on account of the ‘anti-incumbency’ factor, thereby resulting in a state of ‘permanent incumbency’ for the Left Front in West Bengal (Bhattacharyya 2004). The paradigmatic shift in India’s political economy, with the advent of the Congress-led minority government at the Union level, under the stewardship of P.V. Narasimha Rao in 1991, led the fifth Left Front government, under the leadership of Jyoti Basu, to devise its own version of an industrial policy ‘to catch up with the emerging trend in industries across the world’ (Sen 2006: 22). In keeping with the central government’s New Industrial Policy of 1991, which was largely in tune with the Structural Adjustment Policy, evolved through the ‘Washington consensus’, the Government of West Bengal formulated its own Industrial Policy Resolution in 1994 ‘with a view to secure faster and balanced economic development with the active cooperation of the private sector’.5 Through this policy the Left Front government welcomed ‘appropriate foreign technology and investment’ on mutually advantageous terms and the Government recognized the importance of ‘Private, Public & Joint sectors in providing accelerated growth and in improvement and upgradation of industrial as well as social infrastructure’.6 Based upon the available opportunities and the potential of this region, it also identified certain segments and industries as thrust areas. Subsequently, the Central Committee of the CPI(M) also adopted a resolution on the ‘Role of the West Bengal Left Front Government: In the Context of the New Economic Policies’ in December 1994. In 2002, the West Bengal state
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conference of the party also adopted a resolution on ‘The Left Front Government and Our Tasks’. However, the party ideologues did not forget to mention that despite promoting private investment, ‘the Left Front government is committed to people-oriented development, where the poorer sections are provided the wherewithal to overcome poverty’.7 They further indicated that, education, health and social welfare facilities would have to be provided, even though the resources of the state are limited. They pointed out that, the ‘state government, while attracting private investment, will not retreat from its commitment to provide basic services for the people’.8 Cut to the 2006 state assembly elections in West Bengal. The Left Front coined new slogans: ‘Only a better Left Front can be an alternative to the Left Front’, or ‘Agriculture is our foundation—industry future’. Such campaigns by the Left, on the one hand, generated optimism among the growing educated unemployed youth in the state, and on the other, brought the upwardly mobile middle class of the state to the Left Front. The CPI(M), a party which at one point of time must have dreamt of winning the class conflict on behalf of the poor and deprived sections of the country, was now trying to forge an alliance of classes with conflicting interests. Buddhadeb Bhattacharya, who had replaced Jyoti Basu as the Chief Minister of West Bengal, about six months prior to the elections, once again took charge of the state, as the Left Front increased its tally to 235 seats (out of 294), getting a record 51 per cent of the total votes polled in the state. Bhattacharya, became the darling of an influential section of the media and, of potential investors. In fact, some of the powerful industrialists were present at the swearing-in ceremony of Bhattacharya, as the Chief Minister of West Bengal, after these elections. The moment of changing the course of the economy of West Bengal, however, has turned the political journey of the Left Front government exceptionally rough, for the first time since 1977. Singur, a little known rural area in Hooghly district, about 40 kilometres from Kolkata, and adjacent to the newly-constructed Durgapur expressway, took no time at all to find a place in the map of peasant resistance, when the West Bengal Industrial Development Corporation (WBIDC: a subsidiary of the Government of West Bengal), started preparing for the acquisition of land there, for the proposed Tata car factory project for which 997.12 acres of land (a large chunk of it multi-crop) was proposed to be acquired. The choice of Singur for setting up Tata’s small car factory—with a price tag of as low as Rs100,000 or USD
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2,500 approximately—was made by the company, from among the sites offered to them by the state government. The representatives of the Tata Motors made quite a number of promises for the people to be displaced from this piece of land. They claimed that, Singur would become an automobile township as about 70 vendors would set up shop along with the car factory. The total investment planned was to the tune of Rs 1,000 crore or 10 billion. The owners of single-crop land in Singur were promised Rs 8.4 lakh (Rs 840,000) per acre, and Rs 12 lakh or Rs 1.2 million an acre for the double-crop land, but the people of Singur were not impressed by these assurances. A section of the landowners, mostly non-residents, were keen to accept the compensation package initially, offered by the WBIDC, but most of those whose lands were proposed to be acquired were unwilling to hand over the land they had been tilling so far. Not only the bargadars, who were actually tilling the land, but many of the landless labourers, from Hooghly district, as well as the nearby Bardhaman district, who earned a living by working for the bargadars, joined the protest against the acquisition. The people were in a state of shock to see that the same government, which had empowered them through Operation Barga, was now bent on robbing them of their land rights. In fact, the previous, large-scale empowerment of the rural impoverished people became the problem, once the Left Front government in West Bengal started altering its course. Singur has almost turned into a battlefront, since November 2006. Nandigram, a red bastion in East Midnapore, was to follow soon thereafter. In Nandigram, the state government proposed to set up a Special Economic Zone (SEZ), including a chemical hub by the Salim Group of Indonesia. These projects required about 30,000 acres of land (a lot of which was, once again, multi-crop land), in a very densely-populated area. In both Singur and Nandigram the agitation turned violent when the police and administration tried to control the resisting protesters by use of force. Several battalions of armed police, including the Rapid Action Force, were brought in to the two areas from other parts of the state. It is not unreasonable to speculate that the presence of such a huge police forces, in the till-then peaceful villages, made the atmosphere even more tense and surcharged. The alleged mobilisation of CPI(M) ‘cadres’ for clearing these areas further exacerbated these tensions.
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Singur and Nandigram are, perhaps, the two most known places of peasant resistance in this new era. But the list is much longer in reality: protests by the indigenous communities of Kalinganagar in Orissa, by the local people in Dhinkia, Nuagaon and other villages in Jagatsinghpur, also in Orissa, other protests in Chhattisgarh and Uttar Pradesh; objections were raised also in Punjab, Haryana, Rajasthan, Gujarat and Andhra Pradesh, which make it clear that the situation is not better in other states. In some places, it is about setting up industries by displacing people, in other, the Adivasis are being dispossessed of their right to the collective use of natural resources in mineral-rich areas, as the state agencies are acquiring land for bauxite or iron ore mining for the big corporations. Walter Fernandes has recently showed that although the Adivasis are only about 8 per cent of the total Indian population, they comprise 50–60 per cent of the development-induced displaced persons in India between 1950 and 2000 (Fernandes 2007). Thus, in the contemporary, market-friendly state of India, more eager to cater to corporate interests and consumerist priorities, rather than the needs of the rural dispossessed, still largely dependent upon agriculture, the debate concerning justice (and transitional justice) is bound to be renewed. Questions are being raised about better resettlement and rehabilitation packages and policies. Since the vast majority of the share-croppers of the country continue to remain ‘unrecorded’, it is pertinent to ask whether these policies are going to take into account their interests or not. Also, are these policies going to take care of the crucial interests of the marginal farmers and landless labourers? Can money compensate for the dispossession from land and livelihood? Can even the promise of distributing shares of the proposed enterprises among the project-affected people be effective (or meaningful) recompense for people less familiar (or unfamiliar) with the more complex dynamics of the monetised economy? Will there be enough opportunities of gainful employment for the largely unskilled and semi-skilled project-affected people in these highly automated industries? Similar transitions were witnessed by the western European countries, following the Industrial Revolution, but in those moments of transition, Europe did not have any commitment to democracy. On the other hand, the growth of capitalism in these pioneer nations enabled many of them to build global empires that not only took care
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of the growing demand for cheap raw materials and labour, but also provided large tracts of land in the Americas and Australasia, where many of the people displaced by industrialisation in their home countries, could be rehabilitated. The situation in contemporary India is in no way comparable to this. The spectre of these comparisons is likely to haunt us further if we try to look at the People’s Republic of China, where the singleparty rule can ‘take care’ of the social justice needs generated by the transition aiming at higher rates of economic growth, without being concerned about the ‘democratic deficit’. However, the fact remains that prolonged unconcern for critical issues of restorative justice in the moments of this new transition in India is likely to encourage more people to opt for retributive justice. It is not surprising that the Maoist radicals are more influential in those parts of the country where development strategies have resulted in the greatest dispossession: areas with significant majorities of indigenous people and Dalits. It is interesting to note that Kalinganagar, Singur, Nandigram, large-scale farmer suicides in Vidarbha and elsewhere and other such cataclysms have led the current political leadership in India, including Prime Minister Manmohan Singh, to talk in the language of ‘inclusive democracy’ and to repeatedly call for ‘inclusive growth’. After all, it may not be politically wise, even for an otherwise stable political order, to overlook the long-term ‘costs’ of alienating the majority of the country’s population, for the sake of rapid economic gains of a minority, albeit, much more influential. In this scenario, if there is a growing sense of injustice among more and more people of the country, and if they prefer the option of instant justice, like the system of ‘kangaroo courts’ popularised by the Maoist insurgents, in different parts of South Asia, instead of legal and constitutional forms of justice, the stake of the beneficiaries of the present form of liberal democracy may become much higher and it may not be enough to blame everyone offering any critique of the dominant strategies of development as anti-development and, therefore, antinational development strategies with exclusionary orientations may spell doom for India. It is therefore better to engage with the issue of development as a dialogic discourse (Samaddar 2006) with a penchant for inclusive democracy, without simply paying lip service to the ideal of democracy, in this crucial juncture of transition.
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ACKNOWLEDGEMENTS The author is grateful to Ashok Agrwaal, Rajeev Bhargava, Gopal Guru, Ranabir Samaddar and Sanjukta Sinha for their comments on the earlier versions of this essay. These versions were presented in workshops or seminars in Bhubaneswar, the Department of South and Southeast Asian Studies, Calcutta University and Centre for the Study of Developing Societies (CSDS), Delhi.
NOTES 1. 2. 3. 4. 5. 6. 7. 8.
For a detailed discussion on ‘spatio-temporal fixes’, see Harvey (2003). Samuel P. Huntington (1991) referred to it as ‘the third wave’ of democracy. See Tutu (2008). For details see Lieten (1992). See http://www.wbidc.com/about_wb/policies_approvals.htm See http://www.wbidc.com/about_wb/policies_approvals.htm See http://www.cpim.org/pd/2006/0625/06252006_prakash.htm See http://www.cpim.org/pd/2006/0625/06252006_prakash.htm. An in-depth analysis of the Left Front government’s policy of economic reforms is available in Banerjee et al. (2002).
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Manish K. Jha
2 The Founding Moment Social Justice in the Constitutional Mirror1 SAMIR KUMAR DAS
The princess is confined to the deserted palace of a demon-king .… She sits and waits in front of the magic mirror, for days and years for the prince to appear and free her. She cannot cast her look on him, greet and embrace him. She has to view him through the mirror or else the mirror will crack, the prince will die and she will not be saved. Thakurmar Jhuli (translation mine)
T
his study focuses less on the idea and other accompanying provisions of social justice as they are laid down and constituted in the Constitution of India but more on how they have come into being and become one of its constituent parts—that is to say, the very process of their constitution. We view the constitution as the founding moment that stands at the critical juncture between the pre- and posthistory of the idea and provisions of social justice, and probe into its implications for both of them. The study in simple terms seeks, rather arbitrarily to ‘arrest’ only a moment, in an otherwise constantly flowing history of our ‘living with the Constitution’. As we set out to work along these lines, we remind ourselves of some of the major limitations of the study. First, social justice—both as an idea and as a body of constitutional provisions—gets articulated through the history of its constitution. In a country like India, it is necessary to keep the history of constituting the Constitution separate
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from her general political history. For one thing, very little of what were brewing as popular articulations of justice could or were allowed to make their way to the floor of Constituent Assembly, vested with the responsibility of framing India’s Constitution. The constitutional history was and continues to be a much more sanitised process that effectively screened off various other popular articulations of justice. Chaube’s The Constituent Assembly: Springboard of a Revolution (1973) dwells at length on some of these left-out voices. Compared to the violent and tumultuous history outside, where various segments of people were in ferment and screaming for some form of justice, in the newly emergent political dispensation; the proceedings inside the Constituent Assembly were remarkably cool and tranquil and hardly betrayed any of their traces. For another, the Assembly had had a very limited base of representation. In the July 1946 elections to the Constituent Assembly, the victory of the Indian National Congress was virtually assured because of the fact that out of 1,585 seats in the Provincial Assemblies, the Congress had won 925 (58 per cent) seats. As a result Congress candidates swept the polls for the Constituent Assembly, winning 203 of the 212 general seats and in the final count had 208 out of 292 seats of the Provincial Assemblies.2 With the creation of Pakistan and the exit of the Muslim League, the Constituent Assembly was literally a Congress body with 82 per cent of the seats. The 93 nonelected members from the princely states were representatives of the princes or princely interests. The electoral process was itself based on the restricted franchise established by the Sixth Schedule of the Government of India Act, 1935 which allowed only those to vote who had property, educational qualification and paid taxes. This meant that in effect, ‘economically and socially depressed sections of the population were virtually disenfranchised’ (Ahmed 1997: 35). Only 28.5 per cent of the adult population (20 years or above) could vote in the provincial assembly elections. The same assemblies were asked to elect members of the Constituent Assembly. Moreover, the exit of Muslim League is often cited as the main reason for its transformation into a ‘Hindu body’. But the representational base of the non-Muslim minorities as well as the SCs was quite strong. Out of a total of 296 members who were to take part in the preliminary session, 210 members attended. These 210 members consisted of 155 Hindus out of a total of 160, 30 SC representatives out of a total of 33, all the five Sikhs, six Indian Christians out of a total of seven, all the
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five representatives of Backward Tribes, all three Anglo-Indians, all three Parsis and four Muslims out of 80. If the Constitution provided a mirror, it was indeed a magic mirror where only a given body of objects could reflect itself. For, underneath every articulation of social justice voiced inside the Assembly, there was also the seal of what Bajpai calls ‘a legitimating vocabulary of concepts and norms’ invoked in its favour (Bajpai 1999: 2). It is this ‘legitimating vocabulary’ that, according to her, determines the range of what is and perhaps can be voiced and what can never be and therefore is not voiced.3 Like the fairy-tale princess of the epigram cited earlier, the mirror does not recognise any reality out there that does not get reflected in it. Had other articulations of justice reflected themselves, the riotous images might then have cracked the mirror. Neither the otherwise clinical separation of constitutional history from general political history, nor the cracking of the mirror, necessarily inaugurates a social revolution. History also teaches us that in every society, there also operates a number of counter-forces that prevent any and every sense of injustice from being easily converted into a fullfledged social revolution.4 This chapter seeks to retrieve the history of constituting our Constitution, not the Constitution in the perspective of India’s general political history. Second, while we define the arrival of the Constitution as a founding moment, our definition of post-history of the Constitution is also very limited. We propose to view it not in the commonly understood sense of how the idea and the provisions fare in the light of our dayto-day experiences with social justice since the commencement of the Constitution of India. Most of the writings on the post-history of social justice in India point to the growing gap between the ‘promise’ that the Constitution and the fathers of the Constitution made and the subsequent ‘performance’ of our body politic (Bhattacharjee 1997: viii). Thus, the ‘performance’ is assumed to be exterior to the body of the Constitution. It is not the Constitution and the founding fathers, but the ‘petty’ politicians and legislators, the ‘rent-seeking’ executives and bureaucrats and the ‘corrupt’ judges that have failed us. The Constitution is regarded as both exterior to all that has subsequently been done to it amounting to violation of the principles of justice enshrined and laid down by it and as merely a piece of parchment that cannot avenge any injustice done to it. The Constitution per se is assumed to be passive and cannot do anything to fulfil the ‘promise’ of
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justice embodied in it.5 We prefer to define post-history not in terms of whether the idea and provisions have been or will be more apt, sought to have been put into effect, actualised and implemented or not but in terms of the imagined limits and possibilities of seeking and realising social justice that went into the constitution of the Constitution. Viewed in this light, the limits and possibilities of seeking and realising justice after the commencement of the Constitution of India were part of the same process that imagined the Constitution into existence. We dwell more on the art of making ‘promises’ than their breaches. Thus, we follow a different trajectory while critiquing the Constitution: much of what we critique is internal to the history of constituting the Constitution and certainly not external to it. In other words, once the magic mirror of the Constitution was put in place, it was also necessary that a given body of reality makes its mark on it and the constitutional imagination as we argue, also sought to ensure that anything outside this given body is carefully left out and isolated. Every constitution brings this ‘frame of life’ into existence. Every imagination opens up the possibilities as much as it points to the impossibilities. The coming into being of social justice as a constitutional discourse thus wipes many other realities and articulations out of its ‘frame’. Third, while the importance of studying the entire Constitution as a document on social justice can never be doubted, this chapter, for obvious limitations of space, proposes to concentrate only on four major instances of elaboration of social justice in India. All these instances witnessed some of the most intense and longest debates inside the Constituent Assembly. Our instances relate to the themes of (a) non-justiciability of Directive Principles of State Policy; (b) ‘special provisions’ for the ‘Backward Classes’; (c) the Sixth Schedule providing for the institution and functioning of autonomous and selfgoverning bodies for ‘the tribes of Assam’; and (d) the ‘official’ language of India. The debates in the Assembly of course did not follow the same sequence as outlined here. Some of the themes were discussed at different points of time, punctuated by debates on numerous other themes. Nor do we propose to narrativise them in the sequence outlined here. If we are to point out any single area, where the issue of social justice is most explicitly and frontally addressed, it is definitely Part IV of the Constitution dealing with the Directive Principles of State Policy. Both (a) and (b) in their combination seek to provide justice beyond the realm of formal equality and citizenship. The realm
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of formal equality and citizenship is bound to remain formal until the provisions of social justice confer substance on it. Substantiation of the formal realm, according to the framers of the Constitution, is likely to bring about a social revolution in due course. Social justice therefore is held as the key to social revolution in India. On the other hand, both (c) and (d) are known primarily as issues of governance and administration and only secondarily, if at all, as issues of social justice. This chapter however shows that these two sets cannot be kept separate and (c) and (d) too have as much bearing on social justice as (a) and (b) have. For, all of them are informed by the same paradigm of social justice and only illustrate its diverse modalities. Therefore, the question of ‘accommodating’ diverse and incompatible norms and standards of justice does not arise. As we will see, the commonplace distinction between primary and secondary issues, or what Baxi calls, ‘the articulate divide between the governance and rights/justice texts in the corpus of the Constitution’ (Baxi 2006: 36) is of little relevance. The argument may be stretched a little further while bringing home the point that the same is true for every single provision enumerated in the Constitution. It is impossible for anyone to lay down any hierarchy of constitutional provisions—its articles, clauses, schedules and appendices, and so on—from the perspective of social justice in India.
THE ECONOMY
OF
SOCIAL JUSTICE
The role of the constitution in constituting the discourse on social justice has been viewed primarily, though not exclusively, in two altogether divergent ways. On the one hand, it is argued that the constitution as the supreme law of the land authoritatively sets forth the norms and standards of social justice to be followed by the state, as well as its citizens. The task of the constitution, according to this line of argument, is to constitute authoritatively its norms and standards. Norms and standards, as Bentham puts it, are important not because they are ‘promised’ by the constitution-makers as part of their contract with the people at large—which otherwise cannot be violated—but because these ‘promises’ are based on the ‘fundamental axiom’—the breach of which goes against (human) nature and triggers off revolutions and rebellions (Bentham 1988: 36–59). The worth of a
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‘promise’ of justice, made by the founding fathers, therefore lies in its derivability from the ‘fundamental axiom’ of ‘the greatest good of the greatest number’. Constitution-making, in other words, is nothing but the enunciation of the norms and standards like the one mentioned here. It is an exercise in ‘discovering’ moral laws in the same way as one ‘discovers’ natural laws and the moral laws that guide our social and political conduct, as much as the natural laws that govern the world of nature. Once the laws are ‘discovered’ and norms and standards are set, it is possible to judge the actually existing states, whether they are constituted in conformity with or are at variance with them. Thus Nalini Ranjan’s is an exercise in evaluating the Indian State, in terms of the norms and standards set forth and settled by the tradition of western political theory (Ranjan 1998: 149–86). Second, if in the first view, a constitution is called upon to constitute the norms and standards of social justice, according to the second, it is expected merely to create the social and institutional conditions that make alternative constitutions of justice possible in future. On one hand, these norms and standards are considered as ‘unsettlable’, insofar as they are rooted in distinct moral and cultural traditions (MacIntyre 1981: 235). On the other hand and as a corollary to it, it is important that the constitution keeps open the possibilities of emergence of as many notions of justice as possible in future and does not unduly foreclose them at the founding moment. Unlike any universally valid ‘fundamental axiom’ that Bentham and his disciples lay down for us, the second line of argument takes a pluralistic and protean view of our norms and standards of justice. As all our norms and standards keep constantly changing and none of them hold any universal validity, every constitution is required to design a body politic that is constantly capable of accommodating our evolving norms and standards. Rawls’ writings (1971) hardly tell us what justice consists in but dwell extensively on ‘the fairness of the procedure’ that makes the emergence of multiple discourses on justice possible. For him, it is the fairness of the procedure—the right way of designing our institutions—that enables us to arrive at what we may consider as ‘just’ for times to come.6 In the words of Granville Austin: A constitution can be judged only by its adequacy to situations it was designed to meet—and by the extent to which situations it might reasonably be expected to meet were foreseen—and the extent to which it commands allegiance of those who are to govern themselves by it. (1966: 309)
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The founding moment of a constitution is never final and as we will see while referring to the Assembly discussion on Directive Principles, it keeps all its post-historical possibilities intact. Commentators like Austin seem to be struck by the abundance of these possibilities, which eventually will make way to what he believes to be a ‘social revolution’. It is pointless to find out here whether our social and political world can be reduced to one or a given number of ‘fundamental axioms’. The Constitution of India certainly is not informed by any single and coherently designed body of norms and standards of justice. Some of their mutual incompatibilities are too strong to be wished away. While it may be true that there is hardly any ‘open debate’ on compensatory discrimination in present-day India—as Marc Galanter informs us, this was not the case on the floor of the Constituent Assembly. Quite a number of members debated on the ‘First Principles’ of justice. Discussions on other subjects were marked by rivalling discourses on justice. The utilitarian axiom of ‘the greatest good of the greatest number’ was certainly one of many such norms and standards discussed in the Constituent Assembly. In contradistinction with the utilitarian view, some members preferred to trace justice to the State’s commitment to honour the ‘promises’ it makes while making contracts and reaching even tacit ‘understandings’ with multifarious bodies of people especially the tribes of India’s northeast. While for some, justice consists of the recognition of one’s merit and competence, for most others, it is only by way of equalising the opportunities that make otherwise unequal individuals stand on the same starting point, however different they may subsequently make themselves in the race. Some of these views are philosophically incompatible and there were indeed members who would argue in favour of blunting the sharp edges of these otherwise incompatible views so that the people opposed to them do not feel totally ‘defeated’ and ‘disappointed’. ‘Accommodation’ of diverse norms and standards is the crux of ‘the Indian discourse on justice’.7 As Austin argues: (A)ccommodation is…the ability to reconcile, to harmonize, and to make work without changing their content, apparently incompatible concepts—at least concepts that appear conflicting to the non-Indian, and especially to the European or American observer. Indians can accommodate such apparently conflicting principles by seeing them at different levels of value, or, if you will, in compartments not watertight, but sufficiently separate so that a concept can
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operate freely within its own sphere and not conflict with another operating in a separate sphere. (1966: 318)
This emphasis on ‘accommodation’ turns the focus away from the economy of justice. How are the ‘levels’ and ‘compartments’ made? What do these ‘levels’ and ‘compartments’ make up? How much ‘value’ is assigned and to which of these ‘levels’ and ‘compartments’? How much ‘freedom’ does a ‘concept’ enjoy within a ‘sphere’? Do the compulsions of the ‘spheres’, ‘levels’ and ‘compartments’ effect modifications and transformations in each of these concepts? The economy of justice relates each of these ‘concepts’ to constitution of the social body, within which these ‘levels’, ‘compartments’ and spheres’ are located and acquire their meanings. It is the social body that allocates ‘values’ to these ‘spheres’ as much as the ‘concepts’ that fill them, undergo significant modifications and transformations. A constitution is not the mere embodiment of these ‘concepts’ figuring in the textbooks on social and political theory; but as the constitution embodies them, it also reconstitutes them. Constituting the constitution also implies (re)constituting the textbook concepts of justice within the social body that gets constituted in the process.
CONSTITUTING
THE
SOCIAL BODY
The main aim of this chapter is therefore, to connect the multifarious concepts of justice circulating in the Constitution, as well as the, constitutional thinking of India to the social body. For, justice is framed and acquires its salience only within that social body. It is the task of the constitution to constitute the social body to which justice applies, and within which it operates. What remains outside the frame of the social body is either rendered ineligible for justice, or, is an object to be appropriated and colonised by it. While those inside the social body deserve justice, others remaining outside simply do not exist, let alone having a claim to it. Justice is for the insiders to seek and it thereby contributes to the invisibilisation of others. Justice is for those who deserve to be treated as just in the first place. The inside and the outside in this sense feed on each other and share what Agamben calls, ‘the topological zone of indistinction’ and justice as a discourse
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emerges by effectively banishing this zone from public gaze. As he puts it: ‘It is precisely this topological zone of indistinction, which had to remain hidden from the eyes of justice, that we must try to fix under our gaze’ (Agamben 1998: 37). Constituent Assembly Debates (CAD) provide a clue to how such a body was constituted with the attendant invisibilisation of those, who remained outside its ambit. If justice is what applies to the body that deserves to claim it, an ‘exception’ to it is necessary for keeping others at bay and wiping them out of the public gaze. Agamben’s contribution lies precisely in bringing this ‘indistinction’ back to bear on our understanding of justice. As our gaze is fixed, it becomes possible for us to discover the complex modalities of connection between the constitution of the social body and the four themes instantiating social justice mentioned above. 1. There is the modality of colonial justice. The Constitution lays down the norms and standards of justice in a manner that might be incommensurably divergent from many of the notions of justice circulating in the society. The emergence of constitutional justice implies colonisation of various other notions and forms of justice.8 The Constitution has to strategise on exclusion from or terms of inclusion in the social body. Which groups and communities, ‘categories of citizens’ are to be excluded from the social body? Which categories of citizens are to be included and in what terms? Both exclusion and determination of the terms of inclusion require ‘exceptions’ to be made and as it was envisaged at that time, for a limited period. If justice is for the insiders, ‘exceptions’ to it are the means of governing those who remain outside it. Exceptions are made not by violating the constitutional norms and standards of justice but by ‘suspending’ them, albeit in a legal and constitutional manner and by making it possible for the Constitution to operate and function. Exceptions make law possible.9 Nowhere is this modality more profoundly expressed than in the thinking that went into the making of the Sixth Schedule of the Constitution. The CAD addressed the central question of strategising on the nature of the social body. 2. As we have pointed out, the Constitution imposes on it its own suspension while making ‘exceptions’. The Constitution determines its own ‘threshold or limit concept’ (Agamben 2005: 4).
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Agamben also argues that the ‘threshold’ of the social body is never decided once and for all at the founding moment. Instead, his writings point to the continuous changes and modifications that are affected in it by the sovereign power. The essence of sovereign power lies not so much in finally deciding the threshold, but in arrogating to itself the power of deciding it for times to come, including the power of not deciding at all. The untouchables in the history of India—as D.L. Seth points out in a recently held Dialogue on social justice—were also ‘the unseeables’.10 The construction of the public space in India was historically sought to be cleansed of the presence of the untouchables, so much so that there was hardly any scope for seeing them in public places—in roads, tanks and ponds, in temples, markets, panchayats and places of worship, so on and so forth. Any visual contact was ruled out. Elaborate purificatory rites were devised for those who had committed the ‘sin’ of sighting an untouchable and various forms of punishment were recommended in the village society. The breach was complete and the threshold was carefully maintained in village society, for the greater part of Indian history. As India became independent and the practice of untouchability was prohibited and made a punishable offence (Article 17), the threshold seemed to have been redefined. Justice is not a problem of homogeneous societies where divisions are kept outside their ambit and not recognised; it is a problem only of divided societies—societies in which divisions within are recognised and therefore, form a part of the social body. As the threshold is redefined, the terms of inclusion too will have to be renegotiated. We call it, the modality of the threshold. We illustrate the point with reference to the instance of ‘special provisions’ relating to the ‘backward classes, Scheduled Castes and Scheduled Tribes ’. The inclusion of ‘special provisions’ in the Constitution underlines the recognition of the internality of such divisions that separate them from the rest of society. That such ‘special provisions’ could not be extended to the religious minorities, particularly the Muslims, despite a strong minority opinion in its favour within the Constituent Assembly only reflects that the division between the Hindus and other religious minorities was either not recognised at all or was recognised as ‘separatism’ and therefore, a threat to the Indian society. Considerations of
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justice, according to this modality, are always subordinate to the sovereign differentiation of the inside from the outside. 3. The creation of a social body is the mark of sovereign power. The crucial questions are: can the sovereign power be held captive to the body it creates? Does sovereign power cease to exist once the body is created by it? Does it not remain bound by the body it creates? Does it have the power to dismember and/or reconstruct the body? The sovereign power is exercised not by achieving finality in the production of a social body, but through what Negri calls, the ‘constant dialectical neutralisation’ (Negri 1992: 314) of its formative capacities. Sovereign power, according to him, is marked by its capacity of ‘reconstructing’ the social body in future. Sovereign power lies in keeping the reconstructive capacities open for the future. The part on Directive Principles is another case in point. While this part sets forth, perhaps most explicitly the norms and standards of justice, and brings an epistemic community into existence on basis of the principles, the anxiety that these might tie up the hands of the sovereign and constrict the sovereign power, led the Constitution-framers to make it non-justiciable, that is to say, unenforceable in law-courts. We propose to call it, the modality of sovereign indeterminacy. 4. There is the modality of proportions. The makers of the Constitution also felt that it is not always easy to convert our ‘First Principles’ or what Bentham calls, ‘fundamental axioms’ into the norms and standards of justice while governing the country and crafting the State. The declaration of Hindi as the ‘official language’ of India provides an illustration. The declaration, as members of the Constituent Assembly admit, was propelled not by any ‘fundamental axiom’ but by ‘practical considerations’ of ‘political safety and prosperity’ of the social body—in the absence of such ‘fundamental axioms’. Hindi was made ‘the official language’—not because it has ‘literary excellence’ vis-à-vis other provincial languages—as claimed by many rabid supporters of the language (often referred to as Hindiwallahs in a derogatory sense), but because it is just another ‘provincial language’, spoken by the single largest language group and understood by majority of Indians. The conduct of day-to-day administration and running the affairs of the State, in a linguistically diverse and heterogeneous country
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demand that there should be ‘an official language’ and we cannot do without it. The necessity is inescapable and the task of determining the ‘official language’ was considered as a necessary evil. As K.M. Panikkar, a member of the Assembly, who was subsequently appointed as a member of the States Reorganisation Commission, maintained: Though the independence of our states is notional, still the tendency has been noticeable for each unit to consider itself a sovereign state, jealous of its rights, and sensitive about anything which might even distantly affect its power. In a country like India with its regional disparities, with its local traditions and languages, the necessity of encouraging policies and programmes that strengthen our unity is so obvious, specially when that unity is dependent both on political safety and our prosperity. (Panikkar 1960: 165)
This explains why we need an ‘official language’. The imperative of ‘political safety and prosperity’ of the social body is often at variance with what we consider as justice. Nowhere in the CAD was the importance of statecraft clashing against the norms and standards of justice ever so profoundly acknowledged by the Assembly as in the case of the declaration of the ‘official language’ in India. Justice, in such circumstances, demands that we not only declare Hindi as ‘the official language’ as a measure of ‘political safety and prosperity’ of the social body but also subject it to certain auxiliary provisions, so that it can be cut to proportions and its excesses are kept within limits in the interest of the body. The simple idea was to cut down on the excesses of Hindi chauvinism that was considered as a formidable threat to the survival of the social body. Justice in other words, has to do with the imperative of keeping its constituents within proportions. The delimiting provisions were formulated through a series of concessions made in the declaration.
COLONIAL JUSTICE The Sixth Schedule is concerned with the administration of some of the tribal areas of India’s northeast. Under Article 244(2), administration of the tribal areas in the states of Assam, Meghalaya,
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Tripura and Mizoram shall be governed by the rules laid down in the Sixth Schedule of the Constitution. As stipulated in the Schedule, these tribal areas shall be administered as Autonomous Districts. However, if there are different Scheduled Tribes in an Autonomous District, the Governor may, by public notification, divide the area or areas, inhabited by these tribes into Autonomous Regions. For each Autonomous District, there shall be District Council, comprising not more than 30 members, four of whom shall be nominated by the Governor and the rest shall be elected. Similarly there shall be separate Regional Councils for each area, constituted as an Autonomous Region. Although these Autonomous Districts and Regions shall be outside the executive authority of the state concerned, the District Councils and Regional Councils have been empowered to exercise certain legislative and judicial functions. Thus these Councils have the power to make laws in the fields like management of forests (other than reserve forests), the use of any canal or watercourse for the purpose of agriculture, regulation of jhum (swidden) cultivation, the establishment of village or town committees or councils, and their powers, other matters relating to village and town administration, including village or town police and public health and sanitation, appointment or succession of chiefs or headmen, inheritance or property, marriage and divorces and social customs. All laws, thus made, must immediately be submitted to the Governor for his assent and shall have no effect until he gives his assent. The councils also have the power to assess and collect land revenue and to impose certain specified taxes. It allows the Autonomous Councils certain fiscal and substantive autonomy, contingent upon the budget presented by the state government and, the funds allocated by the Centre. The councils may constitute village councils or courts for adjudicating the tribal disputes and cases between the parties, belonging to the Scheduled Tribes of respective areas, to the exclusion of any court in the State. The District and Regional Councils—shall not as a court constituted by them—try cases related to offences punishable with death, transportation for life or imprisonment for a term of not less than five years, under Civil Procedure Code and the Criminal Procedure Code. The High Court and the Supreme Court, however, shall have jurisdiction over the suits and cases tried by the councils or the courts, constituted by them. With respect to the matters over which the District and Regional Councils are empowered to make laws, laws of
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the state concerned shall not extend to such areas, unless the concerned District or Regional Council so direct by public notification. As regards other matters, the President or the Governor, as the case may be, can direct that a Union law shall not apply to the Autonomous District or Region, or shall apply only subject to exceptions or modifications, as specified in his notification. The provisions in the Sixth Schedule thus deal mainly with the issue of safeguarding the land and customs of the hill tribes of the region. The Schedule draws upon the erstwhile ‘excluded and partially excluded areas’ legislation of the colonial state. The Schedule at one level invests the Autonomous Councils with albeit limited legislative, fiscal and adjudicative powers and at another level, keeps the normal systems of government—whether of the Union or of the constituent states—from their operations. Exceptions to the normal systems of government and administration are made only in respect to the tribes of Assam, Meghalaya, Tripura and Mizoram. It is to be noted that these provisions do not apply to the tribes living in other parts of India. This brings into existence an unwritten hierarchy of tribes, graded and differentiated on the basis of their assimilation with ‘the people of the plains of Assam’. The Sub-committee on Excluded and Partially Excluded Areas, headed by Gopinath Bordoloi, that submitted its report in 1947, formed the nucleus of what finally turned into the Sixth Schedule of the Constitution of India. As the report observes: … in the hills of Assam the fact that the hill people have not yet been assimilated with the people of the plains of Assam has to be taken into account though a great proportion of hill people now classed as plains tribals have gone a long way towards such assimilation. Assimilation has probably advanced least in the Naga Hills and the Lushai Hills and the policy of exclusion has of course tended to create a feeling of separateness. (Rao 1967: 693)
The report, thus, makes a strong plea for slowly assimilating them into the so-called mainstream for it is apprehended that any drastic measure undertaken by the state in this regard might attract reprisals and ultimately prove to be counter-productive. As a corollary to their hierarchical positioning within the social body, the report suggests that utmost caution should be taken while extending the principle of devolution of power to them by way of establishing Autonomous District Councils in the hills. ‘What if the Council or the executive controlled by it should misuse the powers or prove incapable of efficient management’ (Rao 1967: 703)? The report makes an implicit
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distinction between inefficient management by the local bodies, in other parts of the country and inefficient management by them in areas ‘on the borders of India’. In the second case, inefficient management has the potential of becoming ‘prejudicial to the safety of the country’. The report therefore provides safeguards against this eventuality and empowers the Governor, appointed by the President of India, to declare any resolution passed by the Council, illegal or void, or to take any action he feels necessary, even dissolve the Council, if he feels that ‘the safety of the country is prejudiced’. Even Dr Ambedkar, in the Assembly, looked upon it as a safeguard for the survival of the social body. The Governor however is not completely free in this regard. There was a good deal of discussion in the Constituent Assembly on whether the Schedule should grant these ‘exceptional’ powers to the Councils for the administration of certain tribal areas in India’s northeast. While justice was the main issue, there were two clearly divergent views in this regard and both of them stemmed from the same objective, gradually colonising and incorporating them into the social body. Justice for these tribes was never considered either as an isolated fact or as an end in itself. It was subordinated to the larger objective of doing justice to the social body as a whole, of which they are supposed to form only a part. Thus notwithstanding these debates, it is one and the same story of the whole seeking to colonise what it considers as one of its parts and looking for suitable strategies in course of accomplishing its mission. On the one hand, there was the view that their incorporation involves subordination of an inferior system of justice to a superior system as it were, within a single continuous scale of justice, and the Parliament, as the custodian of the superior system, is sovereign in imposing it will on them. Thus, the connection between Parliament’s sovereign authority and superiority of the system of justice is amply clear from the debates. But it is difficult to ascertain how it operates: whether Parliament is sovereign because it is the custodian of a superior system or it is the custodian of a superior system because it is sovereign. For some, however, justice demands that the superior system should rule over the inferior. Kuladhar Chaliha for instance points at two mutually exclusive systems of justice and the imperative of keeping the tribal system from the realm of the country’s regular and normal administration: The Nagas are a very primitive and simple people and they have not forgotten their old ways of doing summary justice when they have a grievance
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against anyone. If you allow them to rule us or run the administration, it will be a negation of justice or administration and it will be something like anarchy.… There are so many people of our country, so many Assamese, Punjabis, Sikhs—all people of the country. You cannot consign them to mis-rule, to a primitive rule. It is impossible that they should remain as such. (CAD: IX, 1008)
Interestingly, there is hardly any discussion on how the Nagas might gain by way of being part of the system that claims its superiority to theirs. For, the members of the Assembly had hardly had the necessary knowledge and information about them. Even Gopinath Bordoloi, who headed the Sub-committee on Excluded and Partially Excluded Areas ‘had not the right to visit the tribal areas when he was the premier of Assam before Inde-pendence’.11 Rather it is always viewed as a cost to be paid by them in deference to the utilitarian principle of ‘the greatest good of the greatest number’. Brajeshwar Prasad argues: The responsibilities of parliamentary life can be scheduled by those who are competent, wise, just and literate. To vest wide political powers into the hands of tribals is the surest method of inviting chaos, anarchy and disorder throughout the length and breadth of the country…I am in favour of the principle of self-determination. I believe in the greatest good of the greatest number. I will not jeopardize the interests of India at the altar of the tribals [emphasis added]. (CAD: IX, 1009)
This statement unambiguously announces the preponderance of the social body over the tribes, in spite of the fact that it inflicts a cost on them and their societies. On the other hand, there was the concern that ‘methods of force’ cannot pave the way to their integration into the newly emergent social body. Gopinath Bordoloi calls for a solution intended to secure ‘willing cooperation’ from them. While J.J.M. Nichols-Roy points out that the tribals can teach others a lesson or two in what he describes as, ‘real democracy’, Bordoloi argues that these should be ‘preserved rather than destroyed’, while ‘bringing them up under the broad principle of government by good will and love’ (CAD: IX, 1011). Both these apparently contradictory views, revolving on what Jaipal Singh calls, ‘power solution’ and ‘knowledge solution’ respectively, however, seek to solve the same problem of incorporating and colonising them into a social body. Besides, there was the completely solitary view of Jaipal Singh, according to which, the tribals of erstwhile Assam were entitled to self-rule because:
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It was after considerable difficulty and negotiations that the tribals were persuaded to agree to the recommendations (of the Subcommittee mentioned above, SKD). There was definite understanding on the part of the rest of India that those agreements, those understandings would be honoured. It was definitely on that understanding that the tribal people agreed to do away with the agitation that they have been inspired by the departing rulers. (CAD: IX, 1017)
The statement—perhaps the only of its kind made in respect of the tribes of modern India, in the constitutional history of India— provides broad hints of an implicitly yet ‘definitely’ arrived ‘understanding’ between the tribals of the then Assam and the political authority, and is scripted in the language of almost an contract, concluded by them. It reminds the powers that, it is the contractual obligations that are central to the ‘definite understandings’ reached by the contending parties. This view was gradually sidelined and pushed under the mattress as discussions proceeded. Colonial justice, in post colonial India, never looked upon the tribals as genuine contract-making entities and in sum, concentrated on the strategies of incorporating them into the newly emergent social body.
JUSTICE
AS
THRESHOLD
Part III of the Constitution of India deals with Fundamental Rights. In a sense, enumeration of certain rights as ‘Fundamental’ makes a break from the recommendations of both the Simon Commission and the Joint Parliamentary Committee, which formed the basis of the Government of India Act, 1935. The Act rejected the idea of enacting declarations on fundamental rights on the ground that ‘abstract declarations are useless, unless there exist the will and the means to make them effective’. In Dasaratha vs State of Andhra Pradesh (1961), the Supreme Court of India advised in favour of reading Articles 14–16 together, for, as the Court observed, taken together they enshrine the principle of equality and absence of discrimination. While Article 14 establishes the principles of ‘equality before law’ and ‘equal protection of laws’, Article 15(1) stipulates the general principle of nondiscrimination by the State: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth
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or any of them.’ Clause (2) of the same Article prohibits discrimination in areas specified in it. Clauses (3) and (4) are in the nature of making exceptions to the general principle of non-discrimination. Clause (4) is of special importance for us. It points out: ‘Nothing in this article … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes or for the Scheduled Castes and Scheduled Tribes.’ Article 16(1) calls upon the State to guarantee equality of opportunities in matters relating to employment or appointment to any office under the State. This principle in effect makes it imperative on the part of the State to positively work for equalisation of opportunities so that the ‘backward classes, SCs and STs’ are not deprived of their opportunities and rendered ineligible on grounds of their backwardness. Article 16(4) provides for reservation: the State may reserve any post or appointment in favour of any backward class of citizens who, in the opinion of the State, are not adequately represented in the services under that State. It is also to be noted, in this connection, that the claims of the members of the SCs and STs shall be taken into consideration in the matter of appointment of services and posts under the Union and the States, as far as may be consistent with the maintenance of efficiency of the administration (Article 335). Reservation of the seats and posts in educational institutions, public employment and legislatures is however a direct legacy of the Montague–Chelmsford Reforms, 1919 (Mitra 2003: 200–215). There were very few in the Constituent Assembly who directly opposed the principle of equalisation of opportunities through compensatory discrimination, on the ground that it violates the principle of pure merit. However, such procedural issues as the determination of the criteria of backwardness, the duration, level and ambit of special provisions and making compensatory discrimination without affirmative action, that is to say, without cutting into the ‘due’ share of the forward classes, and so forth, were however most vociferously debated on the floor of the Assembly. Accordingly, debates on the floor revolved around two principles of merit and compensation. For a few members, while one does not have a fundamental right to State employment for it should go on the basis of one’s merit alone, compensation can at best be dependent on the generosity of others. Generosity entails an insult to those who are benefited by it. It cannot be considered as just, inasmuch as it is detrimental to their moral personality. Loknath Misra observes:
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Everybody has a right to employment, food, clothing, shelter and all those things, but it is not a fundamental right for any citizen to claim a portion of State employment which ought to go by merit alone. It can never be a fundamental right. If we accept that as one, it may be generous but generosity will itself be a degradation of those people who are favoured with it. (CAD: VII, 673)
Reservation, according to this line of argument, is likely to introduce divisions within the social body and eventually threaten to tear it apart. Jaspet Ray Kapoor for example is very emphatic when he points out: I…submit that in the matter of employment there should be absolutely no restriction whatsoever unless it is necessary in the interests of the efficiency of the services. The unity of the country must be preserved at all costs; the solidarity of the country must be preserved at all costs. (CAD: VII, 677)
Most of the members were however in favour of making ‘special provisions’ for the categories for whom these are meant. The provision of legal equality cannot function in a situation where there exists fundamental inequality of opportunities and backwardness is rooted in one’s membership to a group, tribe or caste. While right to equality, like most other rights enshrined in the Part, pertains to individuals, it is assumed that one’s access to it is denied on the basis of one’s membership to any of groups mentioned in the Constitution. The principle of compensation seeks to address the question of group-based inequalities. The raison d’être provided in support of them consisted of the following premises. 1. Compensation is required to make good the discriminations historically done to these categories of citizens, kept hitherto outside the public sphere of education, employment and representation in legislatures and have been responsible for their unrecognised invisibilisation. The concern here, unlike in the Sixth Schedule, is to deliberate on what will be just, not only for these categories of citizens (many of them including Dr Ambedkar were present in the Assembly) but also for the ‘development of the country’ as a whole. As K.T. Shah observes: In regard to the scheduled castes and backward tribes, it is an open secret that they have been neglected in the past: and their rights and claims to enjoy as equal citizens to be denied to them because of their
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backwardness…. They need and must be given, for some time to come at any rate, special treatment in regard to education, in regards to opportunity for employment, and in many other cases where their present inequality, their present backwardness is only a hindrance to the rapid development of the country. (CAD: VII, 655)
While the duration of these provisions could be anything between 2 and 150 years (the years suggested albeit in a lighter vein by different members ranged between these figures) depending on the time they might require while seeking reparation for the historical neglect and organising them on a starting point same as others, their ‘neglect’, though known to all, is seldom acknowledged in Indian society. This statement shows that the makers of the Constitution were keen on redefining what Agamben calls, the ‘topological zone of indistinction’ and, bringing the hitherto unacknowledged categories of people inside the social body and under the full public gaze. 2. Compensation is seen as a means of ridding the administrative machinery of its inherited biases and predilections against the backward classes and as a measure of reforming it. Justice, according to this line of argument, implies that ‘a generous and impartial’ administrative machinery is put in place for delivering it. As Dharam Prakash points out: …our national government has inherited an administrative machinery which always had a very narrow communal, provincial or religious outlook. Even now it is an undeniable fact that whenever the question of reservation in services arises, the people of any province holding a majority of posts or the person holding any office are led by provincial or individual interests in making appointments.… The atmosphere in the country today is such as compels us to demand reservation in the services but also in the legislatures. (CAD: VII, 686–87)
3. Justice lies in equalising the opportunities by way of compensating for the denial that these classes have suffered throughout history. Damodar Swarup Seth makes a plea for ‘giving necessary facilities and conditions to the backward classes for improving their educational qualifications and raise general level of their uplift’ (CAD: VII, 679), instead of, providing reservations for them. The State’s duty is to help them feel they are on par with others when arrayed at the starting point of the race. Thereafter, how they fare in the race itself is not its
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concern. Compensation implies equalisation of opportunities and not entitling them to the same rewards, by making reservations. This might cause injustice to the meritorious and the competent, hailing from the unreserved categories. It is important to note that it was not simply a debate between two logically incongruous principles of justice. In fact, there is reason to believe that the entire debate was only an adjunct to the overall Constitutional project of constituting a social body and determining the relations between its diverse parts and sections in a manner agreeable to all of them. It is certainly not ‘accommodation’ of the mutually incongruous systems and principles of justice as Austin and others would have us believe. For, this would have made the social body a conglomerate of socially isolated islands, distant from each other. The distance may ensure peace but beget no sociality of the body that was sought to be constituted. Dr B.R. Ambedkar did not envisage any ‘segregated’ yet peaceful coexistence of diverse and socially unconnected sections of people (CAD: VII, 662).12 The provisions of reservation need to be so designed that they beget sociality, amongst the divisions within the social body. It is within a particular social body that the divisions acquire their significance. The recognition of divisions as divisions internal to the body underlines the pre-eminence of the body, of which these exist as divisions. This premise is nowhere more eloquently reflected than in the distinction made by a number of members, inside the Constituent Assembly among the minorities, particularly the Muslims on one hand and the Scheduled Castes and the Scheduled Tribes on the other. First, while the former have been the ‘invaders’, the latter are the original inhabitants of the country. S. Nagappa, for example, points out: We Scheduled Castes have not invaded this country from Arabia. We have not come here from outside and we do not have a separate state to go and live if we cannot absorb other people. We are not a separate nation; we are the blood and bone of the same religion, same culture, same custom; we are the true sons of the soil. (CAD 25 May 1949: VIII)
Thus, according to Nagappa, the Muslims are not part of the same ‘nation’ that the Scheduled Castes are and certainly Scheduled Castes and religious minorities cannot be treated as divisions of the same
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social body. The Scheduled Castes are freely branded as ‘a section of Hindus’ as Dharam Prakash does (CAD, 30 November 1948: VII) and the votaries of the Scheduled Tribes similarly regard themselves as ‘indigenous people’ of India, long before the category developed into a potent political discourse. The problem is believed to have rested with the religious minorities, particularly the Muslims. The two cases are taken to be entirely different. The Scheduled Castes and Scheduled Tribes deserve state’s care and protection, while the religious minorities do not. The distinction between these two categories coincided in time, with the sovereign discretion of determining the social body that deserves state’s care and protection and therefore forms part of its web of governmentality and most importantly, differentiating it from what it considers as the outside and therefore do not exist in the eyes of the state. Since they do not exist, state owes no obligation, whatsoever, towards them. If the Muslims consider themselves as a part of the same social body, then—as H.V. Kamath, albeit bluntly asks Z.H. Laria, a Muslim member of the Assembly: ‘Why did you demand Pakistan?’ (CAD 25 May 1949: VII). Indeed, the birth of Pakistan threw, as it were, the Muslims of India out of the social body—that was in the making during the early days of Indian Independence—and turned the tables heavily against them. One has only to recollect in this connection, how the recommendations for ‘political safeguards for the minorities by way of reservations of seats in the legislatures on the basis of population and also certain other safeguards’ made by the Advisory Committee on Minorities on 8 August 1948 were reversed, almost unanimously, with the exception of a solitary vote on 25 May 1949 by the Constituent Assembly, on the ground that the same policy pursued by the colonial rulers since the early 20th was directly responsible for the ‘evil effects’ of partition. The earlier report, it may be noted, was adopted entirely on 27 and 18 August 1947 by the Constituent Assembly. The birth of Pakistan pulled down the shutters on them. The complete non-recognition of division or ‘difference’ along religious lines, produced a kind of social body in which Muslims (or for that matter the religious minorities) do not exist as Muslims. They are called upon to join the social body relinquishing as it were, their Muslim identities. These ‘classifications’ and ‘divisions’ must ‘disappear’ in order, that the country is not repartitioned. As Vallabhbhai Patel, the Chairman of the Advisory Committee argues now:
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Now our object is, or the object of this House should be, as soon as possible and as rapidly as possible to drop these classifications and differences; and bring all to a level of equality. Therefore, although we may recognise this it is up to the majority community to create by its generous sense of confidence in the minorities; and so also it will be the duty of the minority communities to forget the past and to reflect on what the country has suffered due to the sense of fairness which the foreigner thought was necessary to keep the balance between community and community. This has created class and communal divisions and sub-divisions, which in their sense of fairness, they thought fit to create, apart from attributing any motives. We on our part, taking this responsibility of laying the foundations of a free India which shall be and should be our endeavour both of the majority—largely of the majority—and also of the minority community, have to rise to the situation that is demanded from all of us, and create an atmosphere in which the sooner these classifications disappear the better [emphasis added]. (CAD 25 May 1949: VII)
‘Equality’ between religious majority and the minorities consists— not in ‘balancing’, ‘conciliating’ or calibrating them against one another—but in completely doing away with these ‘classifications’, ‘divisions’ and ‘sub-divisions’.13 In short, such categories as ‘Muslims’, ‘Christians’ or ‘Sikhs’ lose their significance, within the social body, that the fathers of Indian Constitution envisaged and sought to bring into existence in India. Ansari describes it as a process of ‘forging a homogenised, pure, undiluted nationhood’ by the founding fathers of the republic (Ansari 1999: 122). In course of doing away with their respective identities, the minorities do not seem to bargain with the majority. The minorities cannot impose any demand on the majority, while sinking these ‘classifications’, ‘divisions’ and ‘subdivisions’. This will have to be unconditional. There was of course a section of members who strongly felt that the right to difference was a prerequisite for ‘social harmony’. As Mohamed Ismail Sahib points out: Sir, I do not think that there is any harm in basing the difference of one set of people from the others on religion. Any way, that is the practice obtaining in this country and we cannot go away from it. When we say that one is a Hindu and when we say that another is a Mussalman, nobody can deny that there exists a difference between the two, but it does not mean that these two people must fly at each other’s throat. This difference has to be adjusted and is capable of being adjusted. What we want is harmony not physical oneness or regimented uniformity. We do not want that the population of a country must be made up of the followers of only one religion or one set of beliefs [emphasis added]. (CAD 25 May 1949: VII)
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This nevertheless betrays an alternative understanding of the formation of the social body. We have to keep in mind that the ‘disappearance’ of ‘classifications’ hardly resembles any contract between the parties. It posits a filial bond: the generosity of the minorities is likely to be reciprocated in kind by the majority. Other members of the Assembly called it ‘trust’—a trust that can be obtained by the minorities only by way of ‘forgetting the past’ and relinquishing their contentious claims to identity. As H.C. Mookherjee argues: I am firmly convinced from my own experience that it is the path of wisdom for the minorities to trust the majority community that if they want to live in peace and honour in this country, they must win its goodwill. Our attitude in the past has not been very helpful [emphasis added]. (CAD 25 May 1949: VIII)
In other words, the identity of the religious minorities qua religious minorities remains perennially external to the social body that was in the making in the wake of Independence. The religious minorities were outside the threshold. A section of Muslim members too regretted it with acute pain. Z.H. Lari, for example, recognises this when in his response to H.V. Kamath’s accusation mentioned above, he argues: ‘…the moment you raise such criticisms you give away the whole show. You show that you do not regard me as a part of the whole, that you are still harbouring old suspicions’ (CAD 25 May 1949: VII). Members like Z.H. Lari and a few others expressed their willingness to experiment with such systems of election and representation as proportional representation, cumulative voting and multi-member constituency, etc., so that the minority representatives in spite of being representatives of the minorities are capable of representing the interests of the ‘whole nation’ at least in some crucial respects. It was also felt that even if difference is considered as crucial for fostering social harmony, not all differences can find a place in the body politic. But ‘reasonable’ differences, as Mohamed Ismail Sahib points out, must be allowed to represent themselves in the law-making bodies of the country. Lastly, it was also argued that appropriate instruments must be built in the Constitution so that it can guarantee the minorities against what S. Mohammed Saadullah calls the ‘oligarchy of the majority’ (CAD 25 May 1949: VIII). Where reservation of seats in national and state legislatures promotes justice but leaves a destabilising impact on the already fledgling social body, battered badly by the onslaught of partition (1947),
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it is unwelcome. While justness of the demand for reservation for the Scheduled Castes was seldom contested, reservation for the minorities, including the Muslims was shot down by the Assembly, not because the same principles of justice that apply to the Backward Classes, Scheduled Castes and Scheduled Tribes, as outlined earlier, do not apply to them, but because it smacks of communalism. The newly constituted Indian State developed what Bishnu Mohapatra calls, ‘a pathological aversion’ towards any proposal for minority reservation (Mohapatra 2001). As V.I. Muniswamy Pillay remarks: …some honourable members feel that reservation is not necessary. I think this is unwholesome thinking, because so long as the communal canker remains in the body politic, I feel there will be communities coming up for reservation; but the case of Scheduled Caste is not pleaded on a matter of communalism, because they have been left in the lurch.… (CAD 1946–50: VII 689)
Similarly, both the Union and the provincial governments were asked to go slow on the ban on Untouchability, imposed by Article 17 of the Constitution of India. The same Article—as we have already pointed out—also makes its practice a punishable offence. For it was feared that any hasty implementation and handing out of punishment might spark off adverse reactions in the society and might eventually threaten to tear the social body apart. People instead should be educated. The framers of the Constitution were appreciative of the importance of public education and propaganda campaign in this regard. As Dakshayani Velayudhan remarked: When this constitution is put into practice, what we want is not to punish the people for acting against the law, but what is needed is that there should be proper propaganda done by both Central and Provincial Governments…. The making of the constitution will depend on how the people will conduct themselves in the future, not to the cultural execution of law. (CAD 1946–50: VII, 668)
Even the radical reformists amongst the founding fathers were not ready to allow justice to reach a point, where the survival of the social body is threatened. No principle of justice is entertained that even remotely might pose a threat to the social body, sought to be constituted by them. The important question for some members of the Constituent Assembly is to bring into existence a ‘public’ and making each one of them a constituent part of it. The point was raised by R.K. Sidhwa, when he preferred to define ‘public’ as ‘a person or a collection
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of persons of all communities irrespective of caste or creed’ and distinguished it from the ‘restrictive’ way Indian Penal Code (Section 12) defines it as ‘any class of the public or any community’ (CAD 1946–50: VII, 659–60). Public, for him, is supposed to cut across the boundaries that otherwise separate the communities, castes and creeds, etc. Dr Ambedkar however cut short, the otherwise interesting discussion, by saying that the ‘public’—in the context of nondiscrimination—refers to any resort or facility that is ‘maintained wholly or partly out of public funds’. The founding fathers sought to visualise a social body in which justice for one section would not be injustice for another and vice versa. Justice makes it imperative on our part to ‘blend’ their apparently contradictory positions (Bhargava 2007). While no one had had the necessary knowledge and information to legislate for the Nagas, the interests and aspirations of all the contending parties in this instance, by contrast were very clear and well known. Thus, K.T. Shah puts it: Any section of the community which is backward must necessarily impede the rest; and it is in the interest of the community itself therefore, that it is but right and proper we should provide facilities so that they may be brought up-to-date so to say and the uniform progress of all [emphasis added]. (CAD 1946–50, VII, 655)
Shah is unmistakable when he refers to one and the same ‘community’ and makes an advocacy for a kind of progress that is of ‘uniform’ nature for all of us in India. Compensation is viewed as an ‘exceptional and temporary measure to be used only for the purpose of mitigating inequalities and designed to disappear along with those inequalities’ (Galanter 1984: 363). It is, as Shah calls it, a roadmap towards ‘the idea of equality of citizenship’ (CAD 1946–50: VII, 652) and the formation of a civic body of citizens. It is what substantiates formal equality, but does not negate it.
JUSTICE
AS
SOVEREIGN INDETERMINACY
Part IV (Articles 36–51) of the Constitution that enumerates a set of Directive Principles of State Policy may be regarded as the benchmark for social justice in India. This is the single most crucial ‘Part’ that aptly and directly sums up the constitutional philosophy of
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social justice in India. A division of fundamental rights into two categories: (a) justiciable and (b) non-justiciable, depending on their enforceability in law courts, was recommended by the Sapru Committee as early as in 1945 and at the time of framing the Constitution, the Advisory Committee on Fundamental Rights felt the necessity of making provisions for a set of Directive Principles, in addition to the fundamental rights and regarded them as ‘fundamental in the governance of the country’. Dr Ambedkar however cited the precedence under the Government of India Act, 1935, of issuing Instruments of Instructions to the Governor-General, influencing their adoption. Some of the Principles, which subsequently propelled a number of legislations,14 may be noted in this context: 1. Article 39(b) points out that the State should secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. 2. Article 40 calls for organisation of village panchayats and endow them with powers of self-government. 3. Article 43 directs the State to work for the promotion of cottage industries. 4. Article 45 calls upon the State to provide for free compulsory primary education. 5. Article 47 seeks to raise the standard of living, particularly of the rural population and is concerned with prohibition of intoxicating drinks and drugs. 6. Article 50 provides for the separation of the executive from the judiciary. It is interesting to note that there was hardly any intense debate in the Constituent Assembly on the specific provisions enumerated in this part. There was hardly any serious controversy over any of these principles. The radical amongst the framers of the Constitution were however skeptical. If Directive Principles taken together lay down the foundations of a ‘socialistic pattern of society’ in India, it was also feared, whether such a society was possible without a revolutionary upheaval and most fundamentally, without abolishing private property altogether (CAD 1946–50: VII, 487). The members by large, were in broad agreement and the provisions were adopted, as Austin puts it, in ‘rapid succession’ (Austin 1966: 79). What engaged most of
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Assembly’s attention, however, was primarily centred on the issue of non-justiciability of the Directive Principles. As one reads between the lines of CAD, one is struck by the reasons advanced by the founding fathers in favour of keeping them non-justiciable, despite the fact that there was a significant section of members including Kazi Karimuddin, Nazimuddin Ahmed and Hussain Imam, among others, who were fervently pleading for making them justiciable. These are reasons of sovereign power that always seeks to situate itself over and above the norms and standards of social justice—whatever probity and rightness they might enjoy in the given society. That these principles were adopted without much debate, also gives credence to such a conclusion. The point is that the sovereign power will never subject it to these norms and standards and therefore the norms and standards themselves need to be made non-justiciable. Any subjection negates its sovereign essence. The sovereign power is situated at this zone of indeterminacy that does not foreclose its future options and keeps it from any abiding obligation of implementing and enforcing them. The principle of non-justiciability implies this stark openness that according to Agamben, verges on a kind of purity, its absolute freedom from being bound by any commitment, including that to social justice. The State neither says that it will implement Directive Principles, nor does it say that it will not. It keeps the future as an open book, its sovereign domain. Justice thus is held captive to sovereign power. In all the available commentaries on the Constitution of India, the part on Directive Principles is celebrated on the ground that it makes way to ‘socialist’ society, as promised by the Preamble to the Constitution. The anomaly emanating from their non-justiciability is sought to be resolved with reference to the sanction of ultimate answerability of the legislatures—vested with the responsibility of translating these Principles into laws before implementation—to the electorate, in times of elections. According to Durgadas Basu: ‘The sanction behind the Directives is of course, political and not juridical’ (1965: 312). While commentators like him take a very triumphalist view of the Directive Principles, they seem oblivious to the technologies of sovereign operations and how these set forth the limits and possibilities of each and every constitutional provision. What are the reasons that we call the reasons of sovereign power? First, there was the argument that one cannot enforce them against
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the State in any court of law. Although the term ‘sovereignty’ was never mentioned, the following statement of M. Ananthasayanam Ayyangar is reflective of how the State embodies a power that cannot be challenged in any court of law and therefore enjoys final immunity: In Article 26 (of the Draft Constitution, SKD) it is said that the State should, within a period of ten years introduce free compulsory education. Take this as an instance. Let us assume that the State does not do so, then can any court of law enforce it? Against whom? If the Government does not carry it out, let the High Court or the Supreme Court enforce it? With its authority, can it by any office of the court, an amin or a sheriff, imprison all the Ministers, and bring into existence a new set of Ministers? In the nature of things, these are only directives and cannot be, justiciable rights at all.… There is no use being carried away by sentiments. We must be practical [emphasis added]. (CAD 1946–50: VII, 475)
Second, the framers of the Constitution also reflected on its very nature. The task of a Constitution, as Mahboob Ali Baig Sahib Bahadur argues, is not to privilege any particular school of thought and thereby making any government bound by it, but to keep it open and fluid. The state is larger than any of the political parties harbouring this school of thought and assuming power. My view is that in a Constitution no principles of any school of thought should be incorporated…we can conceive of cases where a party which has been returned by the people has programmes and principles which are contrary to the principles that are laid down in this Chapter.… Political parties have different and distinctive programmes, and it is on their merits that the parties are returned to parliament in a parliamentary democracy. When that is the position envisaged and embodied in this constitution, what is the place of these directive principles in it? They have obviously no place. (CAD 1946–50: VII, 488)
Parliamentary democracy is no exception to sovereign power.15 The alternative was to leave it to the discretion of the legislatures—union, provincial or local, whether to enforce it or not. The will to legislate once again is a sovereign will. Directive Principles, as K.T. Shah points out, escape the Constitution in spite of being a part of it: ‘… it is a kind of provision which encourages the Court and also the Executive not to worry about whatever is said in the Constitution, but to act at their convenience and on their practicability, and go on with it [emphasis added]’ (CAD: VII, 479). Being driven by what Agamben calls, ‘the practical considerations’ (Agamben 1998: 142), the sovereign power
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remains both inside and outside the Constitution and both observing and transgressing it.16
JUSTICE
AS
PROPORTIONS
Until 1919, the Government of India was ‘a unitary and undemocratic government’ (Griffiths 1962: 121), and the division of British India into provinces was mainly a matter of administrative convenience. It was of little consequence whether or not the provincial boundaries corresponded with ethnic or linguistic or even geographical frontiers. As political consciousness grew, the question became of greater importance and both Montague–Chelmsford report and the Simon Commission suggested that, some redistribution of the provinces on linguistic and ethnic basis might receive consideration. Not until 1920 did the Indian National Congress accept the linguistic redistribution of official provinces as a definite objective. The Nehru Committee emphatically declared that it was most desirable for provinces to be regrouped on a linguistic basis. Thereafter the policy was uniformly followed by Congress until Independence and as Griffiths puts it, ‘new responsibilities compelled a more practical approach [emphasis added]’ (Griffiths 1962: 121). As Independence approached, Congress strove hard for distancing itself from its earlier commitment and rapidly veered towards a position appreciative of the necessity of founding a strong Union and accordingly, introducing an ‘official language’. The Dar Committee, set by the Constituent Assembly, pointed to the dangers of linguistic reorganisation, while the JVP Committee, set up by the Congress in 1948, in its report, saw no reason why the provinces should be reorganised ‘immediately’ and recommended linguistic reorganisation only if the minorities living within the provinces were agreeable with it. The general mood of the nationalist leadership turned a full circle by the time independence seemed imminent and was clearly in favour of declaration of an ‘official language’, out of practical considerations. It was indeed reflected in the Constitution. Part XVII carries the heading ‘Official Language’, but in effect seeks to provide for much wider objective. In addition to Articles 343–351 of this Part, constitutional provisions on languages are also to be found in Article 120,
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dealing with language to be used in Parliament; Article 210 concerning language to be used in legislatures; and Articles 29 and 30 relating to cultural and educational rights. Article 343(1) is of particular relevance, ‘The official language of the Union shall be Hindi in Devanagari script. The form of numerals to be used for official purposes of the Union shall be the international form of numerals.’ This Article further provides that for a period of 15 years from the commencement of the Constitution, English is to continue in use ‘for all the official purposes of the Union, for which it was being used immediately before such commencement’. The President, however, may authorise by order, even during the period of 15 years, the use of Hindi in addition to English and of the Devanagari form of numerals for any official purpose of the Union. Again, Clause (3) of this Article, authorises Parliament to provide by law, for use of English language and the Devanagari form of numerals, for any purpose laid down in such a law. In pursuance of this clause, Parliament passed the Official Language Act, 1963, which, inter alia, provides for the continuance of English in addition to Hindi for the official purposes of the Union, even beyond the initial period of 15 years from the commencement of the Constitution. In simple terms, that a country with profound linguistic heterogeneity needs an ‘official language’ as a lingua franca of official communication between provinces, between the provinces and the Union and most importantly, as the language of transaction of business in Supreme Court and High Courts, Parliament and other provincial legislative assemblies, etc., was deeply recognised by the members of the Constituent Assembly. While at one level the plea for declaring ‘official language’ was inspired by ‘practical considerations’ and considerations of administrative convenience, at another level, it was also looked upon by some members as a key to hold the newly emerged social body together and thereby serve as a ‘national language’. The members were not unambiguous in this respect and the debates held in the Assembly point to a ‘zone of indistinction’ between an ‘official language’ and a ‘national language’. Any thought of doing justice to the provincial languages, by way of reorganising the states on linguistic basis, was held as preposterous and detrimental to the newly created social body. The imperative of an ‘official language’ prevailed over such considerations of justice. But at the same time, there was also the nagging anxiety that such a language might gradually become ‘national language’, threatening to displace others or throwing them
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into disuse. If justice could not be done to them on grounds of ‘safety and prosperity’ of the social body, there was also the eagerness of compensating it by way of reducing the threats of injustice, by preventing the ‘official language’ from being converted into ‘national language’, by keeping it within proportions and containing any of what Frank Anthony calls, its ‘intransigence and intolerance’ (CAD 1946– 50: XI, 1362). While the ‘official language’ was meant for serving the purpose of constituting the social body and holding it against any of the fissiparous tendencies, evident in the rising stridency of provincial languages at that time, it should not move the other way round and pose a threat itself, by crushing and dismembering them. The threat was nevertheless real. While advocating for Hindi and establishing its ‘national character’, R.V. Dhulekar announced in the Constituent Assembly: ‘I belong to Indian nation, the Hindi nation, the Hindu nation, the Hindustani nation’ (CAD 1946–50: XI, 1348) In a single stroke, ‘India’, ‘Hindi’, ‘Hindu’ and ‘Hindustani’ are bundled into one, with all its dangerous implications for the social body, that was sought to be constituted in a multilingual society in the wake of India’s Independence. All are assimilated into the ‘Indian, Hindi, Hindu, Hindustani nation’. The same utilitarian principle was harped, while making a plea for accepting Hindi as the ‘national language’. Lakshminarayan Sahu, a non-Hindi speaker himself, for instance establishes it in no uncertain terms: Some people are so enamoured of English that they thought that they would lose their very existence if English is not used as the official language. It is like a drunkard saying that he would die if there is prohibition and he is not allowed to drink. If a few people die as a result of replacement of English, what is the harm? We have to move forward in the interests of the whole nation and the country, and if a few people are inconvenienced they would put up with it [emphasis added]. (CAD 1946–50: XI, 1370)
As the ‘nationalist credentials’ of Hindi are boastfully placed on the floor, those of other languages—both provincial and non-provincial— were also placed, one after another, to counter it. Although he welcomes Hindi in the interest of ‘real unity’ of India, Frank Anthony for instance opines: English is my mother tongue. I maintain that English is an Indian language… It has become the mother tongue and assimilated to or has become part of the people in different parts of the world. (CAD 1946–50: XI, 1360)
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Sanskrit, according to Lakshmi Kanta Moitra, is the only language that can ‘undoubtedly’ resolve the controversy by way of combining the ‘official language’ with the ‘national language’ in one. For, it is ‘the parent language’ of all provincial languages: We are proud of the great provincial languages of the country: Bengali, Marathi, Gujarati, Hindi, Tamil, Telugu, Malayalam, Kannada, and others. They constitute a variety of wealth of Indian culture and civilisation. This is not a provincial property. It is all our national property. But all these languages derive their origin from Sanskrit. That is the parent language and even in the case of the languages in the South, they have taken a large number of words to enrich their languages. (CAD 1946–50: XI, 1355)
Besides, Sanskrit can assuage the raw nerves on both sides—Hindi and English represented by and large by the representatives of the North and the South respectively—and ‘avoids the provincial jealousies and acrimonious feelings’ (CAD: XI, 1358). Sanskrit can serve as a compromise formula. Thus, he views justice essentially in terms of what enables us to keep the two warring camps together within a social body. If Hindi is regarded as a ‘national language’ so should be Bengali. Justice demands, as Satis Chandra Samanta argues, that the language of those who suffered most in course of India’s struggle for independence, should be recognised as, the ‘national language’: ‘We have suffered so much for the attaining freedom of our country. Can you not suffer a bit for the national language of our land? We should and everybody should be prepared to make that little sacrifice’ (CAD 1946–50: XI, 1376). Justice in other words, consists in compensating for what one has historically suffered for gains, that others are enjoying now, by way making ‘a little sacrifice’. This shows that justice takes very different routes to the formation of the social body, and Hindi enjoys no special privilege in making the claim of being the ‘national language’ of India. The proposals against Hindi, to my mind, were more in the nature of beating Hindi in its own game, rather than of recommending any concrete policy for future implementation. At a time when there is hardly any commonly agreed upon ‘fundamental axiom’ for judging the relative value of these positions of justice, the preference for Hindi as the ‘official language’ is informed, not by norms and standards, but by ‘practical considerations’. T.A. Ramalingam Chettiyar sums it up:
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It is merely an account of the existence of a large number of people speaking Hindi, not even a majority of the population of the country, but only among the languages which are spoken in India, Hindi claims probably the largest number of people…when we want to live together and form a unified nation, there should be mutual adjustment and no question of forcing things on people who may or may not want it .… (CAD 1946–50: XI, 1373)
The second part of his observation is important. For, that provides the rationale for claiming concessions and softening its zealotry. V.N. Gadgil echoes the same point: After all, Hindi is a provincial language. There are languages in which literature is far more rich, and yet we have accepted Hindi.…That itself is a great achievement for the Hindi people, and if you want to persuade others, the best way is not with the strength of your voting numbers but by persuasion, by tactfully handling the situation.… (CAD 1946–50: XI, 1371)
Although many of the amendments proposed on the Draft Constitution were subsequently rejected, all these aimed at addressing the rising stridency of the Hindiwallahas and keeping them to the proportions required for the survival of the social body. One, English will continue to exist side by side with Hindi for 15 years and may continue even after this period, if Parliament so desires by making a law to this effect. Two, Hindi as an ‘official language’ should rid itself of its Sanskrit words, most of which are unintelligible to the non-Hindi and non-Hindu speakers and should therefore be communicated in Roman or Urdu script. Three, international numerals instead of Devanagari numerals should be used to bring simplicity to the language. Some of these were accepted, some not; but the idea remained the same—it was the idea of holding the social body together by keeping its parts in proportions and by not allowing any one of them to ride roughshod over another. To say that it was ‘operation muddle’—‘a certain amount of grey imprecision and misdirection’, as King suggests (1997: xiii), is to miss out the preeminence of the social body that combines its parts, and fixes them in perfect proportions with each other. The philosophical debates on justice therefore are different from the CAD. Justice, cast in the constitutional mould, looks unrecognisably different from what the great philoso-phers want us to believe. Justice is crafted differently in the enter-prise of crafting the Constitution and constituting the social body. The constitutional mirror, as we argued,
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was after all a magic mirror where realities, in order to be reflected, were to observe all its magical rules and protocols. Or else, the mirror will crack and there will be a dismembering of the body. {Since detailed publication data of the old CAD volumes, evidently of Government of India publication are unavailable, it was not possible for us to furnish them—whether in the text or in the references. All quotes from CAD with respective volume numbers and dates superscribed in the text are taken from the official website. Samir Kumar Das}
NOTES 1. An earlier draft of this chapter was extensively discussed in the Review Workshop on ‘Law and Justice’ organised by Mahanirban Calcutta Research Group (CRG) in Kolkata on 5 July 2007. I thank Shibaji P. Basu and Ranabir Samaddar for their comments. However, I am alone responsible for the arguments and lapses, if any, in the chapter. 2. Though of course, at one point the Vice-President clarified that ‘so far as this House is concerned, there is no party in existence’ (CAD VII, 1: 491). 3. However unlike her, I argue in the following pages that the ‘vocabulary’ acquires ‘legitimating function’ not by virtue of being ‘dominant’ as a general political discourse, but by virtue of being subjected to the project of bringing a social body into existence. The constitution after all is the art of constituting this body. The ‘legitimating vocabulary’ is not end in itself. It is only a means to an end. 4. Leading amongst these studies is the one by Barrington Moore Jr (1978). 5. Many other works on social justice under this project are also cast in the same mould. 6. Ricoeuer, however, argues that the institutional designing prescribed by Rawls is based on a moral self that values ‘tolerance’ and appreciates the importance of ‘consensus’. This, according to him, privileges a particular moral self in preference to another that does not value these values (Ricoeuer, 1995: 72). The objective of the Rawlsian project was to design the institutions in a manner that will be neutral to the play of our ‘comprehensive moral doctrines’. 7. I borrow this phrase from Galanter (1997: 191), although Galanter argues that the lack of ‘an open debate’ in respect of ‘compensatory discrimination’ has been responsible for the emergence of such a consensual discourse in cotemporary India. 8. Our phrase ‘Colonial justice’ is highly resonant of Samaddar’s concept of ‘Constitutional colonialism’. As he explains:
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In truth, constitutionalism can be only colonial. In constituting rules, and thereby constituting itself, the constitution has to make a judgment. The judgment is about what to select as the constituting rule(s). Further, it is about rule(s) to make de novo, what rules to inherit, co-opt, what to colonize, and what to leave out. It is about what rule(s) to make secondary, derivative. Constitution within its own world is universal, that is to say, its applicability is universal. Yet, this universe in being constituted must constitute the grades, and make up its mind about the areas to be colonised within the constitutional universe, and the areas left out. Colonial constitutionalism (or constitutional colonialism) is thus not a neologism, but a phrase that indicates a reality wider than what it immediately suggests. Its topography shows that only by not being universal its claim to universal applicability is established, so is established the truth of constitutional deficit. (Samaddar 2002a: 1–2) 9. Law, according to Agamben, ‘nourishes on this exception and is a dead letter without it’ (1995: 27). 10. Seth made this point in the ‘Dialogue on Social Justice’ organised by Calcutta Research Group and Centre for the Study of Developing Societies in Bhubaneswar on 20–22 November 2006. 11. Rohini Kumar Chaudhuri points this out (CAD IX: 1014). 12. By contrast, Ashis Nandy for example, asserts a community’s right to distance as proximity breeds contempt. 13. In the words of Retzlaff: ‘the die had been cast’ with partition (Retzlaff 1963: 60). The early Congress policy of ‘conciliating’ with the Muslim League was held as responsible for the partition of India and the Congress leaders were in no mood to continue with the same policy. 14. It may be noted that the argument that the whole question of social justice to the minorities was subordinate to the project of forming a social body runs contrary to Bajpai’s thesis that ‘the opposition to minority safeguards on liberal grounds was cast in the language of justice, equality and fair play’ (Bajpai 1999: 14). 15. The Directive Principles need to be translated into legislations before they are implemented. 16. Agamben’s critique is focused on the functioning of sovereign power in the liberal democracies of Europe.
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3 Indexing Social Justice in India A Story of Commissions, Reports and Popular Responses BHARAT BHUSHAN
T
he evolution and history of reservations in India shows an intricate interplay of social movements for fair representation, popular politics and the moderating as well as the legitimising role of the judiciary. One only has to recall how job reservations for Other Backward Castes (OBCs) were thrust on the national agenda in 1990. In August 1990, V.P. Singh’s government faced a crisis. The deputy prime minister in his government, Choudhary Devi Lal had resigned and decided to show his strength through a huge rally in Delhi. Having put together the winning AJGAR (Ahir, Jat, Gujjar, Rajput) and MAJGAR (Muslims plus AJGAR) electoral alliances, Devi Lal now wanted to project himself as the leader of the backward castes. The OBC leader from Uttar Pradesh, Mulayam Singh Yadav was expected to appear on the same platform as Devi Lal. This was when V.P. Singh struck back. The Mandal Commission report had been gathering dust and while every political party promised its implementation, on 7 August 1990—two days before Devi Lal’s rally—V.P. Singh announced that his government had decided to implement the recommendations of the Mandal Commission report that 27 per cent of all jobs in the government should be reserved for the backward classes.
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This move put paid to Devi Lal’s dream of emerging as the tallest backward class leader, kept Mulayam Singh from going over to his side and catapulted a Rajput and a princeling, V.P. Singh, into the messiah of the OBCs. The decision also plunged north India into turmoil, with the upper caste students coming out in the streets and some even setting themselves on fire. There was litigation over the decision and eventually in November 1992, the Supreme Court upheld 27 per cent reservation in government jobs for the OBCs, set an upper limit of 50 per cent for all reservations and decreed that the ‘creamy layer’ among the OBCs be identified and excluded from the reservations.1 The implementation of the long pending recommendation for job reservations was impelled by the needs of popular politics. The government’s weighing, in favour of the OBCs led to popular protests and litigation and the courts moderated the decision. Fifteen years later in 2005, on the eve of the assembly elections in Tamil Nadu, Kerala and West Bengal in April 2005, Union Minister for Human Resource Development, Arjun Singh announced that the government planned to introduce 27 per cent reservation for OBCs for admissions to Indian Institutes of Technology, Indian Institutes of Management and Central Universities—in short, in all central government funded institutes of higher education. This, he said, would be in addition to the 22.5 percent reservation, that already existed for the Scheduled Castes (SC) and Scheduled Tribes (ST). Anti-reservation protests erupted in north India. The south, where reservations have existed in various spheres of educational, vocational and political life, by and large did not see the same intensity of protests. Arjun Singh claimed that such reservation was ‘follow up action’ required in view of the 93rd Constitution Amendment Act of 2006, which had come into force on 20 January 2006. That amendment itself was brought in because the apex court in the Inamdar case (12 August 2005) had struck down existing reservation by state governments in private, unaided medical and engineering institutions. The court had held that the right to run educational institutions was a ‘fundamental right to occupation’ protected by Article 19(1)(g) of the Constitution and no imposition of reservation could be made by the state on private, unaided educational institutions.
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Considering the Supreme Court judgement as a setback to the policy of reservation, Parliament decided to insert a new sub-article in the Constitution—Article 15(5)—to overcome this ruling with regard to reservation in private educational institutions—whether aided or unaided (except minority educational institutions). The 93rd Amendment was, therefore, an enabling constitutional provision for extending the right to reservation to the private, unaided educational institutions—a right that the state already enjoyed for educational institutions funded by it. The state, therefore, had every right, even before this constitutional amendment, to reserve seats for OBCs in educational institutions funded by it. Arjun Singh was being disingenuous in claiming that it was the Constitutional Amendment of January 2006, which required follow up action.2 This was followed by the enactment of the Central Educational Institutions (Reservation in Admission) Act 2006 to provide for reservation in government educational institutions. On 29 March 2007, the Supreme Court stayed the reservation in educational institutions for OBCs while allowing it for the SC and ST in an interim order that questioned the use of caste data from the 1931 census for extending 27 per cent reservation to OBCs. The Court ruled: … there is need for periodical identification of the backward citizens and for this purpose the need for a survey of the entire population on the basis of an acceptable mechanism. What may have been relevant in 1931 census may have some relevance, but it cannot be the determinative factor. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. (Venkatesan 2007)
The Court also ruled that the concept of creamy layer could not prima facie be considered irrelevant and that it needed no reiteration that the creamy layer rule was a necessary bargain between the competing ends of caste-based reservation and the principle of secularism. It was part of the constitutional scheme (Venkatesan 2007). Here again, therefore, one sees the interaction of popular politics, state policy and judiciary. However, politics tends to predominate over judicial restraint and constitutional amendments are introduced to over-reach the judgements of the Supreme Court on reservation. This began with the first Amendment in 1951 inserting Article 15(4) after the Champakam Dorairajan case (AIR 1951 SC 226). Another example is the 77th Amendment in 1995, inserting clause 4A in Article 16 to provide for reservation in promotion to SCs and STs, to override the
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Indra Sawhney judgement (AIR 1993 SC 477), in which the court held that such reservation could be provided only in initial appointments. Finally, once again in January 2006 the 93rd Amendment, followed by the Central Educational Institutions (Reservation in Admission) Act 2006, in January 2007 whose implementation is currently stayed by the Supreme Court. One finds that the history of reservation policy is replete with such examples. A brief examination of the history of reservations shows how this complex process unfolded in various states. The Indian state provides three kinds of reservations: reservations in political representation; reservations in jobs and reservations in educational institutions. Reservation in political representation relates to allocating a fixed number or proportion of seats in the legislative and local bodies such as municipalities and panchayats for certain communities or groups. This can either be in relation to their share of the population or it can be based on a political consensus. So for the first time, based on the Poona Pact or the Yervada Pact of 1932, seats were reserved for the SC/STs in the central and state legislatures, elected in pursuance of the Government of India Act 1935. Later this was built into the Indian Constitution. Today, the SCs and STs enjoy reservation in the legislative bodies in relation to their population—18 per cent for the former and 5 per cent for the latter—at the central level. There has been a proposal for the reservation of 33 per cent of seats in the legislatures and local bodies for women. While this was been implemented for Panchayati Raj bodies in 1993–94, the mainstream political parties are reluctant to implement the provision in the legislatures. The reservation for the SC/STs in the Parliament and the pursuit of a similar 33 per cent reservation for women, are both examples of political reservation. Reservations in jobs apply essentially to government appointments at the central and state levels and in organisations, such as public sector units, which receive government funding. These apply to both the SCs and STs and from 1993 onwards for the OBCs also. There is a move now to make job reservations mandatory for the private sector also, although the captains of the industries have resisted this move. The Constitution of India also provides for reservations in admissions and faculty posts in educational institutions in favour of the SC/STs and socially and educationally backward classes. It also empowers the state to make similar provisions for women.
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In some states there are reservations for admissions in educational institutions for the dependents of political sufferers, serving army personnel, dependents of ex-servicemen, physically handicapped persons and sports persons. There are also provisions for nomination of students from friendly countries, institution-based and area-based reservations in admissions. Now, through the Central Educational Institutions (Reservation in Admission) Act of 2006, the reservation already available to students from the SC/ST category in professional institutions, has been extended to the OBCs. Under the new law OBC students will get 27 per cent reservation in centrally aided educational institutions. The government has expressed its intention to enact a similar law to extend the facility to even unaided educational institutions. It is not the intention of this chapter to deal with political reservations in any great detail. What is important to note is that, whenever the government has decided to make special provisions for a certain group or section, it has done so by amending the constitution (for example, reservation for socially and educationally backward classes). However, even where there have been constitutional provisions—like Article 15(3), which allows for special provisions for women—if it does not suit the government, they are not implemented, as in the case of reservation for women in elected bodies. In the same vein, one can see that although the Constitution bars discrimination solely on the grounds of religion, electoral compulsions have persuaded the government to constitute the Rajinder Sachar Committee, to explore the possibility of special provisions for Muslims. It may be a genuine attempt to see whether there are OBCs and socially and educationally backward classes among the Muslims. However, no similar attempt has been made to see whether, women as a whole could be considered socially and educationally backward and therefore deserve reservation.
HISTORY
OF
RESERVATION
IN
JOBS
AND
EDUCATION
The ban on the entry of untouchables to schools was lifted in India in 1854; but in effect it continued for quite some time afterwards. Weary of upper caste reaction, the Government of Bombay Presidency,
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through a resolution of 21 July 1856, rejected the application of a Mahar boy from Dharwar (then in Bombay Presidency) to enter school. This was done under pressure of upper caste parents who threatened to withdraw their wards from that school. The situation was no better in other parts of India. The Indian Education Commission—the Hunter Commission of 1882—gives instances of upper caste opposition to untouchables entering elementary school from Malabar (now in Kerala but then in Madras Presidency), Central Provinces (now, Madhya Pradesh, Maharashtra and Chhattisgarh) and Bombay Presidency (Maharashtra, Gujarat and Karnataka). The reservation programmes and other welfare programmes for the SCs and the backward castes were the result of the popular movements of these castes in the 19th and the early 20th century and not due to any largesse being distributed by the state. These movements saw and demanded access to education as the only way for upward mobility. In the case of a few communities, they set up their own private educational institutions. Others agitated for access to educational institutions, run by the government. The princely state of Kolhapur was the first one to respond to these agitations and popular movements. In 1902 it reserved posts in state services for many non-Brahmin castes including some presentday backward castes (BCs), SCs and others. The much larger state of Mysore followed suit in 1918, when it appointed the L.C. Miller Committee, the first such committee or commission, to look into the demands of the backward classes. The committee itself was formed on the basis of representations received from the aggrieved communities. In 1921, based on the Miller Committee report, jobs in the Mysore state services were reserved for BCs, SCs and some non-Brahmin castes. The same year, the Madras Presidency also went in for job reservations. Madras was followed by the Bombay Presidency in 1931, which reserved jobs based on the recommendations of the State Committee for Depressed Classes (including some BCs and nomadic communities) or the O.H.B. Starte Committee. The princely state of Travancore began reserving jobs in 1935 for backward classes, which included present day SCs and BCs. Often the move for job reservation included reservation in educational institutions or parallel orders were issued for it. Upper caste
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leaders of those days supported the reservation policy. In Travancore, for example, they actively participated in social reform movements, aimed at ameliorating the conditions of the SCs and the BCs. By the time separate electorates for the SCs were being talked about and recommended by the British Government—the Macdonald Award—issue of affirmative action or reservations was already on the social agenda. The compromise that Ambedkar made with Gandhi, who was on hunger strike in Yervada jail against the Macdonald Award that gave separate electorates to the SCs, resulting in the provision of reserved seats for the SCs in the Government of India Act of 1935. Ambedkar gave up the advantage of a separate electorate as other Congress leaders felt that it would be harmful to the greater national interest. In exchange for accepting a general electorate, Ambedkar got a commitment from Gandhi and the leaders of the national movement, not only for the reservation of seats in the central and state legislatures, but also their representation in the public services, local bodies (implemented in 1993) and education. Once the social consensus for reservations had been prepared, Ambedkar, as member of the Viceroy’s Executive Council, initiated a plan for the reservation for the SCs in 1943–45. It started a post-Matriculation Scholarship Scheme for the SCs (later extended to the STs) and a National Overseas Scholarship Scheme. It was the prevailing egalitarian spirit, which led to the Constitution of India providing for far reaching provisions for the SC/STs, not only by way of reservation, but also in many other manners. Thus for example, Article 15(2) makes ‘the use of wells, tanks, bathing ghats, roads and places of public resort’ a fundamental right for all. Today, one might wonder why the use of public roads was made a fundamental right, but perhaps, one forgets the depth and extent of prevailing discrimination meted out to some sections of society, at that time. So it is not surprising that the Constitution also contained provisions for the socially and educationally backward classes, although reservations for them was not implemented till 1993. It might be recounted here that Clause 4 of Article 15 of the Constitution is the basis for many state governments issuing orders for reservation in education including in government funded medical, engineering and other professional institutions. This clause was the result of the first Constitutional Amendment, in response to the Supreme Court, setting aside the ‘Communal Government Order’ of
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the Government of Madras, issued before Independence. This order provided for reservation by ‘communal rotation’ in educational institutions in the Champakam Dorairajan and Venkataramana cases. One finds, however, that even after the Constitution of India came into being, while some states of Northern India like Punjab (and later Haryana), Bihar, Gujarat and Madhya Pradesh introduced reservations for the Backward Classes, other states and the Centre did not do so, till four decades were to pass. The first Backward Classes Commission to be set up in postIndependence India was the Kaka Kalelkar Commission in 1953. It submitted its report in 1955 and made far reaching recommendations, which included conducting a caste-based census in 1961, treating all women as a class as backward, reserving 70 per cent seats in all professional and technical institutions, for qualified students of the backward classes, and job reservations in government service and local bodies—for the OBCs ranging from 40 per cent in Class IV services to 25 per cent in Class I. However, the report was not unanimous in its recommendations. Five out of its 11 members recorded notes of dissent on various grounds. Three opposed the equation of caste with backwardness and also the reservation of jobs on the basis of caste; one recorded a note of dissent strongly recommending equating caste with backwardness; and another dissented on the exclusion of some castes from the category of OBCs. While the Chairman, Kaka Kalelkar himself did not write a note of dissent, but in the letter forwarding his report to the President, he himself opposed caste as an indicator of backwardness, and wrote against several recommendations of the Commission. Citing the dissension within the commission and its inability to evolve workable criteria for the classification of socially and educationally backward classes, the government did not act on the recommendations of the Kalelkar Commission. After failing to establish that backwardness could be correlated to occupational communities through a pilot survey, the government decided that no all-India lists of backward classes would be drawn up and limited the extension of reservation to what existed then—to only the SC/STs. However, the states were left free to draw up their own lists for the purposes of the provisions of Article 15(4)—enabling the states to make special provisions for the betterment and advancement of socially and educationally backwards classes and the SC/STs—and Article 16 (equality of opportunity in matters of public employment)
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of the Constitution, obviating the need for a central list of backward classes. The suggestion to the states, however, was that the Government of India would like them to go by economic tests rather than by caste. Twelve state governments set up their own commissions or committees to identify backward classes and recommend measures to improve their condition. These states were, in alphabetic order: Andhra Pradesh, Bihar, Gujarat, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Punjab, Uttar Pradesh and Tamil Nadu. Eight other states and Union Territories offered reservations to backward classes, notified through government orders or based on lists prepared by the Commissioners, for the SCs and the STs or lists maintained by them for the purposes of granting post-Matriculation scholarships under the Education Ministry’s scheme formulated due to efforts of Ambedkar in 1944. These were Assam, Delhi, Haryana, Himachal Pradesh, Meghalaya, Orissa, Pondicherry and Rajasthan. If such lists already existed, then why was there a need to set up special commissions by the states? This became necessary because the existing lists were often challenged in courts. The latter struck them down, as the states could produce no evidence for claiming that a particular caste or community belonged to the backward classes. The following section contains a brief survey of these commissions, their recommendations and the fate of these recommendations. Andhra Pradesh The Andhra Government had notified a list of 112 communities as OBCs for purposes of reservation in jobs and educational institutions in 1966. The Andhra Pradesh High Court struck it down and the Supreme Court upheld that decision. As a consequence, the Manohar Pershad Backward Classes Commission was set up in 1968. It submitted its report in 1970 (I will not go into details of the criteria used and the classification of OBCs by the state commissions, but mention only their significant recommendations). The Manohar Pershad Commission recommended 30 per cent reservation in government jobs and professional educational institutions (the Andhra Government toned it down to 25 per cent), reservation of 25 per cent house sites and 15 per cent of all housing board dwellings
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for the OBCs, a family income criteria of Rs 6,000 per annum for OBCs students for exempting their tuition fee and for eligibility for scholarships, etc. A separate Finance Corporation was also set up for the OBCs. Another committee was set up by the Andhra Government, under the chairmanship of Agisam Veerappa, for the welfare of the backward classes. Its report submitted in 1977, recommended several other measures in the area of reservation and scholarships in education, including the lowering of the qualifying marks for OBCs to various institutions. Bihar In Bihar too, courts were used to nullify the list of OBCs prepared by the state government on the grounds that it was based on caste. While the state government then evolved economic criteria for educational benefits to backward classes, it also simultaneously set up the Mungeri Lal Commission on Backward Classes in 1971. It recommended 20 per cent reservation in government jobs of which 3 per cent would be reserved for women, another 3 per cent for economically weaker sections; 24 per cent reservation in engineering, medical and other professional colleges, the provision of other educational benefits and allotment of housing sites. Gujarat Gujarat set up the A.R. Bakshi Commission on Backward Classes in 1972 which recommended 5–10 per cent reservation in government jobs at different levels and 10 per cent reservation in professional educational institutions and training institutions besides granting scholarships and other educational benefits based on income criteria. Jammu and Kashmir In Jammu and Kashmir, the Gajendragadkar Commission on recruitment policies recommended in 1968 that that jobs be reserved on the basis of economic backwardness, occupation, habitation, literacy
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and caste (only in the caste of Hindus) but only after a high power committee examined the issue. As a result the J.N. Wazir Commission was set up in 1969. The rules notified on the basis of the Wazir Commission report were challenged in the Supreme Court. To rectify the lacunae the state government set up the A.S. Anand Committee. Among other things, it recommended 42 per cent reservation in government jobs and equal reservation in technical and professional institutions. This was in addition to 8 per cent reservation in the state for the SCs. Karnataka Karnataka, set up the R. Nagana Gowda Commission in 1961, the L.G. Havanur Commission in 1972, the T. Venkataswmay Commission in 1983, the O. Chinnappa Reddy Commission in 1992 and a Cabinet Sub-committee under M.P. Prakash in 1995 on Backward Classes. The case of Karnataka is an interesting one because here one sees the movement of castes in and out of the OBC category. Between 1963 and 1975, the state government’s list of OBCs included even Brahmins, Lingayats and Vokkaliggas. The Havnur Commission dropped the Lingayats from the OBC list and specified reservation quotas for specific castes and communities—the Kuruba and Agasa community, for example, got 10 per cent and the Muslims and Idigas 18 per cent. However, of late, there has been a demand to drop the Kuruba and the Idigas from the reservations list. The T. Venkataswamy Commission recommended the dropping of the Vokkaliggas from the OBC list but this faced the opposition of H.D. Deve Gowda. There was some reclassification of the OBCs into various categories, but the Vokkaliggas continued in the OBC fold. The Chinnappa Reddy Commission’s recommendation was never implemented while the M.P. Prakash Committee, only redistributed the reservation quotas against castes and job categories. Kerala Kerala has also had a multiplicity of backward class commissions and committees. The V.K. Vishwanathan Committee of 1961 recommended 40 per cent reservation in professional colleges for OBCs and
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10 per cent for the SC/STs, and an equal proportion of reservations in government jobs. The government curtailed the reservations in professional colleges for OBCs to only 25 per cent, while accepting the other recommendations. The reservation in educational institutions was challenged in the Kerala High Court, which ordered the setting up of a fact-finding committee to evolve objective criteria for backwardness. Thus came into being the G. Kumara Pillai Committee of 1964. The Kumara Pillai Committee, besides identifying a list of backward communities, also evolved income criteria for extending reservations to them. While keeping the reservation in educational institutions for the OBCs at 25 per cent, it distributed the overall quota among various categories of OBCs. Another petition in the Kerala High Court challenged the criteria used, describing them as obsolete and based on data which was out of date. As a result, the M.P. Damodaran Committee of 1967 came into being. Its report submitted in 1970, was considered for eight years, by which time it was claimed that the findings of the committee may have got outdated. It was decided to set up yet another commission, while making minor changes in the redistribution of the 40 per cent job quota among various OBC categories. Maharashtra In Maharashtra, the B.G. Deshmukh Committee was set up and 34 per cent reservation was granted in government jobs, with 13 per cent for SCs, 7 per cent for STs, 4 per cent for de-notified and nomadic tribes and 10 per cent for other backward communities. In 1979, the government also ordered that 80 per cent of all government jobs would be reserved for economically weaker sections of society, and specified an income criterion to go with it. The OBC reservations were included in the over all 80 per cent reservation. Madhya Pradesh In 1981, Madhya Pradesh under the chief ministership of Arjun Singh set up the Ramji Mahajan Commission on Backward Classes. Its report recommended that 35 per cent seats be reserved for OBCs,
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seeking admission in educational institutions—run or aided by the government. It also recommended a 35 per cent reservation in all governmental, semi-governmental and public sector jobs. The Arjun Singh Government implemented two other measures in addition to these recommendations, which were challenged in Court and stayed—quotas for OBCs in technical training colleges and scholarships, from Class 5 to higher studies. The Ramji Mahajan Commission followed the Mandal Commission, but its recommendations were implemented more than a decade before the Mandal recommendations were taken up by the Centre. Punjab In Punjab, a Backward Classes Commission was appointed in 1951, which recommended a 2 per cent reservation in government jobs and educational institutions for 14 castes, constituting 2 per cent of the state’s population. This was accepted. Subsequently, in 1965, the Brish Bhan Committee was set up to review the reservations for the OBCs. It recommended the rationalisation of existing lists to exclude certain castes and communities, as they were no longer backward and, the raising of the reservation limit from 2 to 5 per cent. Although the recommendations of the Brish Bhan Committee were rejected formally, the quota in government service was raised to 5 per cent. The state government also rejected the recommendation of a Legislative Committee on the Welfare of SC/STs and OBCs that the OBC quota in services should be raised to 15 per cent. Uttar Pradesh In Uttar Pradesh, the Most Backward Classes Commission was set up under Chhedi Lal Sathi in 1975. It classified the OBCs into three categories and specified different job and educational reservations for them: z
z z
Landless labourers, unskilled workers, non-artisans and domestic servants—17 per cent Marginal and small cultivators—10 per cent Muslim backward classes—2.5 per cent
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Its recommendation for a 29.5 per cent reservation was partially accepted by the state government, which lowered it to 15 per cent for the OBCs, but even this order was struck down by the Allahabad High Court. Tamil Nadu Tamil Nadu, the pioneering state in reservations, changed its policy of communal reservations after the Supreme Court struck it down in 1951. From 1960s onwards it had reservations only for SC/STs and OBCs—16 per cent and 25 per cent in educational institutions and 15 and 25 per cent in government jobs, respectively. Tamil Nadu set up the A.N. Sattanathan Commission in 1969 and it recommended a rationalisation of the list of BCs and a 33 per cent reservation for them in government jobs and educational institutions. The government ordered 31 per cent reservation for OBCs, 18 per cent for SC/STs. Later it enhanced the OBC quota to 50 per cent and the SC/STs quota to 19 per cent. The Supreme Court stipulation to limit reservations to 50 per cent as a result of petitions by anti-reservation organisations, was countered by the Tamil Nadu legislative assembly. In a special session, in 1993, it unanimously called upon the Centre to amend the Constitution to enable it to continue with its 69 per cent reservation policy in government services and educational institutions. It enacted a Bill and got presidential approval for it. Subsequently, the Act was sanctified in the Ninth Schedule of the Constitution, through a Constitutional amendment.
MANDAL COMMISSION We already know about the recommendations of 27 per cent reservation in government jobs for the OBCs by the B.P. Mandal Backward Classes Commission set up in 1979. The Mandal Commission claimed that although the population of OBCs in the country was 52 per cent, it pegged the reservation at 27 per cent so as to ensure that the overall reservation was in keeping with the Supreme Court directive of an upper limit of 50 per cent.
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Like all orders on reservations, the Mandal Commission recommendations were also challenged in court. The Supreme Court in 1992 upheld the order of the Government of India of 1990, with the stipulation that Socially Advanced Persons and Sections (SAPS) or the so-called ‘creamy layer’ of castes identified as Backward Classes should be excluded. By the exclusion of the creamy layer, the apex court tried to bring caste category in line with class. It ruled that for the purposes of inclusion in the lists of socially and educationally backward classes, economic backwardness or poverty would be relevant only if and when it arises from social backwardness—that is, economic backwardness per se is not a criterion for designating a class as backward. The court therefore struck down a clause added by the Congress Government in 1991 to the V.P. Singh Government’s order of 1990 providing for 10 per cent reservation for the ‘economically poor’. Logically, the reservation in education for OBCs, which has been introduced now should have been done in 1990 itself. The Mandal Commission had recommended reservation of seats in educational institutions besides recommending land reforms, land distribution, tenurial reforms, etc. Thus in a sense what is happening now is at least a decade and half too late. It stands to reason that reservation in jobs without a reservation in education is not logical—only education can prepare people to take up jobs.
RESERVATION
AND
DEFINING BACKWARDNESS
The evolution of reservation policy—whether in the legislative bodies, central and state civil services and government departments, public sector jobs or in education in India—shows that it was conceived of as a welfare measure. It was aimed at providing representation to those social groups whose presence is less than their share in the total population. The aim of reservation, therefore, is to bring these underrepresented groups up to the same level as the rest of society. This, the state believes, would help transform India into an egalitarian society. What complicates this process is that while the Indian Constitution provides for equality before the law, it also enables the state to take measures, including reservation in jobs and education, for the welfare of certain socio-economic, age or gender groups, as well as religious minorities.
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The general principle of equality is laid down in Article 14, which says that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of ‘equality before law’ has been taken from the common law (UK) and means no one, howsoever highly placed, would be given any special privilege; and the concept of ‘equal protection of law’ has been taken from the US—it enjoins a positive obligation on the state to ensure that all citizens are equal when it comes to the enjoyment of rights. Therefore, even if the law pertaining to reservation passes the test of Article 15 (education) or Article 16 (employment), it can be struck down, if it is, in contravention to Article 14. The relevant clauses of Article 15 which relate to the government enacting a policy or passing an order making special provisions in education for designated groups read as follows: z
z
z
z
Article 15(1): The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(3): Nothing in this article shall prevent the state from making any special provision for women and children. Article 15(4): Nothing in this article or in clause (2) of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and the STs. Article 15(5): Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the SCs or the STs in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in Clause (1) of Article 30.
The Clauses (4) and (5) of Article 15 were inserted by enacting constitutional amendments. Clause 4 was added by the 1st Amendment to the Constitution in 1951 to enable the government to make special provisions for educational and social advancement of backward classes, the SCs and the STs. This amendment came after the Supreme
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Court in State of Madras vs Champakam Dorairajan (AIR 1951 SC 226) struck down a Madras Government order (aimed at helping backward classes), fixing the number of seats for every community in government medical colleges. Clause 5 was added by the 93rd Amendment to the Constitution, which came into force on 20 January 2006. Article 15(4) could have dealt with reservation in government institutions but Clause 5 was probably inserted to specifically deal with reservation in private educational institutions. It overrides Article 19(1)(g) so that no private institution could oppose reservation on the ground of violation of the fundamental right to carry on a trade or business. Further, unlike all other enabling provisions allowing the government to provide for reservation, under this clause, reservation can only be provided by ‘law’ and not by executive fiat. This was probably conceived to provide greater legal sanctity to the decision, by involving the legislature, as quota in private institutions meant infringing upon the fundamental rights of private bodies. By contrast, executive decisions are enough for reservation under other provisions, including quota in government jobs under Article 16. Article 16 has somewhat similar provisions to Article 15 but it specifically deals with employment. Unlike Article 16, the word ‘reservation’ is not there in Article 15. While Article 15 talks of special provisions for ‘Socially and Educationally Backward Classes’ (SEBCs), it allows the executive to make any provision for the reservation of posts in favour of any ‘backward class’ of citizens. ‘Backward class of citizens’ is a wider category than SEBCs. In the former, the accent is on social backwardness, while in the latter it has to be both social and educational (Indra Sawhney vs Union of India [AIR 1993 SC 477]). It is the need to reconcile this basic confrontation between the two provisions of the Constitution—those in Article 14 and those in Articles 15(4) and 16(4)—that creates the basis for litigation about defining backwardness or challenging reservation policy. As Galanter points out: The Constitution confronts both government and courts with the problem of reconciling the conflicting principles of equal treatment and compensatory discrimination. The sweeping language of Articles 15(4) and 16(4) suggests that the framers of the Constitution relied primarily on the discretion of the politicians and the administrators of the future, rather than on the courts to effect such a reconciliation. (Galanter 1984: 533)
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One of the contentious issues involved in implementing the mandate of Articles 15 and 16 is to define ‘backward classes’. The Constitution has not defined backward classes or socially and educationally backward classes. B.R. Ambedkar, the Chairman of the drafting committee of the Constitution, when asked about the criteria to be followed to determine social and educational backwardness said, ‘We have left it to be determined by each local government. A backward community is a community which is backward in the opinion of the government’ (Ramaiah 1992: 1203–07). Article 340 of the Constitution, however, contemplates constitution of a commission to investigate the condition of SEBCs and other such matters. The President has so far appointed two backward classes commissions—the first Backward Classes Commission was headed by Kaka Kalelkar in 1953, and another under the chairmanship of B.P. Mandal in 1978. The Kaka Kalelkar Commission submitted its report on 30 March 1955 and prepared a list of 2,399 BCs or communities in the entire country, of which 857 were classified as ‘most backward’. It recommended, among other things, that the backwardness of a class be related to its low position in the traditional caste hierarchy of Hindu society and the treatment of all women, as a class as ‘backward’. There was difference of opinion among the commission members on defining backwardness. However, in its final report the commission ended up recommending caste as the criterion to determine backwardness, but not without a caveat by the Chairman, Kaka Kalalekar. In his letter submitted with the report to the President, he wrote that it came as ‘a rude shock’ to him that there was a virtual competition even among the non-Hindus—especially the Muslims and the Christians—to be also recognised as backward. Kaka Kalelkar, while in effect equating backward classes with backward castes, was prepared to recommend that all special help should be given to the backward classes, while keeping out the poor and the deserving among the upper classes. But then he wrote: My eyes were however opened to the dangers of suggesting remedies on caste basis when I discovered that it is going to have most unhealthy effect on the Muslim and the Christian sections of the nation. It is patent fact that the bulk of the Muslims and Christians in India are converts from the Hindu fold.
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This conversion was encouraged by the fact that Islam and Christianity were fundamentally opposed to caste. The ‘lower castes’ in the Hindu fold left their traditional religion and joined the religion of the ruling race because they felt assured that in that way they would be free from the tyranny of caste and caste prejudice. (Zelliot 1955: i, vi)
Instead, what he found was that the government’s decision to give special privileges and concessions to the backward classes, from among the Hindus, which had prompted: …the Muslims and Christians also to assert that, although their religion was fundamentally different, and theoretically opposed to caste, in practice their society was more or less caste ridden. The special concessions and privileges accorded to Hindu castes acted as a bait and a bribe, inciting Muslims and Christian society to revert to caste and caste prejudices and the healthy social reforms effected by Islam and Christianity were being rendered null and void. (Zelliot 1955: vi)
Kalelkar, therefore, concluded that ‘the remedies we suggest were worse than the evil we were out to combat’. However, he admitted that this realisation came to him a bit late in the day—when the report of the commission was being finalised. But he was convinced that ‘backwardness could be tackled on a basis or a number of bases, other than that of caste’ (p. vi). Why then did Kalelkar not oppose the equation of backwardness with caste? He explains, ‘I only succeeded in raising the suspicion of the majority of my colleagues that I was trying to torpedo the recommendations of the commission. This was another reason why I signed the report without even a minute of dissent’ (Zelliot 1955: vi–vii). Kalelkar’s dilemma points to the complexity involved in defining backwardness, and his doubts of the 1950s continue to be expressed in the debate on reservation even today. Although the Second Backward Classes Commission or the Mandal Commission seems more definitive on its understanding of backwardness and its equation with caste, it did not settle the controversy over what really constitutes backwardness. The Mandal Commission adopted 11 criteria, grouped under three major headings: social (four criteria); educational (three); and economic (four) to define backwardness (Mandal Commission Report 1980: 57). These criteria were:
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Social z z
z
z
Castes/classes considered as socially backward by others. Castes/classes, which mainly depend on manual, labour for their livelihood. Castes/classes where at least 25 per cent females and 10 per cent males above the state average get married at an age below 17 years in rural areas and at least 10 per cent females and 5 per cent males do so in urban areas. Castes/classes where participation of females in work is at least 2 per cent above the state average.
Educational z
z
z
Castes/classes where the number of children, in the age group of 5–15 years, who have never attended school is at least 25 per cent above the state average. Castes/classes, where the rate of student dropout in the age group 5–15 years is at least 25 per cent above the state average. Castes/classes amongst which, the proportion of matriculates is at least 25 per cent below the state average.
Economic z
z
z
z
Castes/classes where the average value of family assets is at least 25 per cent below the state average. Castes/classes where the number of families living in kaccha houses is at least 25 per cent above the state average. Castes/classes where the source of drinking water is beyond half a kilometer for more than 50 per cent of the households. Castes/classes where the number of households having taken consumption loans is at least 25 per cent above the state average.
The indicators in each group were given different weightage—three points each for the social indicators, two points each for educational indicators and one point each for the economic indicators. The total score on all the 11 indicators added up to 22. The Mandal Commission decided that all castes, which had a score of 50 per cent (or 11 points)
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or above, were socially and educationally backward and the rest were ‘advanced’ (Mandal Commission Report 1980: 57). Social scientists have criticised Mandal Commission’s recommendations on the ground that, there are many technical errors in the methodology, adopted for identifying social and educationally backward classes. They also criticised the commission for the methodology used to claim that the number of OBC employees in the government was less than that of the SC/STs, and to justify 27 per cent job reservation for them in state services (Ramaiah 1992: 1203–07). The criteria used by the Mandal Commission for identifying OBC employees of both Hindu and non-Hindu communities: 1. With respect to employees belonging to the Hindu communities: (i) An employee will be deemed to be socially backward if he does not belong to any of the three twice-born (Dvij) ‘varnas’, i.e., he is neither a Brahmin, nor a Kshatriya, nor a Vaishya. (ii) He will be deemed to be educationally backward if neither his father nor his grandfather had studied beyond the primary level. 2. For non-Hindu communities: (i) An employee will be deemed to be socially backward if either (1) he is a convert from those Hindu communities which have been defined as socially backward as per para 1(i) above. (ii) In case he is not such a convert, his parental income is below the prevalent poverty line, i.e., Rs 71 per head per month. Ramaiah, for example, argues: The commission instead of finalizing the list of OBCs first and then identifying among them the number of those employed in government services, had first finalized the list of the so-called OBC employees in government services—using some criteria arbitrarily—who may or may not fall in the category of OBC, according to the criteria adopted later by Mandal. Second, when a particular set of criteria was adopted to decide whether or not an employee in government
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service is socially and educationally backward, the same set of criteria should have been adopted to decide whether or not an individual is socially and educationally backward. (1992: 1203–07)
He has suggested that Mandal Commission’s analysis of ‘socially and educationally backward classes’ needs to be bifurcated into socially backward classes and educationally backward classes, in the case of both Hindu and non-Hindu communities. He also thinks that SEBCs and OBCs should be further divided into three categories: (a) those who are economically backward but educationally advanced; (b) those who are educationally backward but economically advanced and (c) those who are both economically and educationally backward; and that all three categories should be measured taking into account their present educational and economic status (Ramaiah 1992: 1203–07). Dipankar Gupta, while supporting the Supreme Court’s decision staying the OBC quota implementation in education, also questions Mandal Commission’s social, educational and economic criteria for defining backwardness; from that follows the questioning of the proportion of OBCs in the total population ascertained at 52 per cent, by Mandal Commission. The National Sample Survey puts the proportion of OBCs at about 32.1 per cent, while the National Family Health Survey estimates it to be 29.8 per cent. There are no authentic figures and that is what the court has questioned. Gupta points out in an article entitled ‘Target Practice’ in the Hindustan Times, 29 March 2007, ‘These criteria were flawed from the start for excessive weights were given to markers of social backwardness, which were unverifiable, and fewer points were given to economic backwardness, for which there were indices.’ He further concludes, ‘Clearly, the framers of the Mandal Commission set out to provide a charter for the upwardly mobile, well-to-do agrarian classes in the garb of “backwardness”.’ Gupta’s contention is that for backward class reservation based on quotas, the numbers must be right. He justifies the apex court questioning the use of the 1931 census data, to determine the proportion of the OBCs in the population. He argues, the criteria used in 1931 have become defunct, many castes that existed then have disappeared or morphed themselves or joined other caste clusters; their relative positioning may have changed, and so has the understanding of
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‘backward’ and ‘forward’, over time. Some castes, for example, had objected to being included among BCs in 1911 because they saw themselves placed down in social hierarchy—today, Gupta points out, they would fight if they figured as high castes. In the same article, he recalls Mandal’s own admission that state governments had not responded with required information on educational and social profile of backward classes. He admits that: The exercise done by the commission was not scientific or academic and would certainly not pass stringent criteria. If all this be true, how can the government calmly proceed with the Central Education Institutions Reservation in Admission Act in 2006 and reserve seats on a quota basis for OBCs. The ‘C’ now clearly stands for ‘Castes’
While sociologists and political scientists continue debating, what constitutes backwardness, the judgements of the Supreme Court, which have tried to help with a definition, have not been entirely consistent. • In 1963, the Supreme Court ruled that caste cannot be the ‘sole or predominant’ factor for ascertaining, whether the group is a backward class or not. The Constitution Bench in the M R Balaji vs State of Mysore (AIR 1963 SC 649) case presided over by Chief Justice Gajendragadkar observed that the backwardness under Article 15(4) was to be both, social and educational and not either social or educational. The Court also said that it would not be irrelevant to consider caste but its importance should not be exaggerated, and it could not be the sole or the dominant test to determine social backwardness. • In 1964, in R. Chitralekha vs State of Mysore (AIR 1964 SC 1823), the Supreme Court once again ruled that, while caste could be taken into account to decide whether a particular citizen or group of citizens belonged to a Backward Class or not, but it could not be the sole or dominant criterion for doing so. • In Triloki Nath vs State of Jammu and Kashmir (AIR 1967 SC 1283), the Court laid down that Backward Class is not a synonym of backward caste or backward community, that the category must necessarily be socially and educationally backward as contemplated by Article 15(4). In addition, those classes
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had to satisfy the further test of inadequate representation in the services under the tate. In Rajendran vs State of Madras (AIR 1968 SC 1012), the Court observed that the mere specification by caste of socially and educationally backward classes did not necessarily mean that caste was the sole consideration or that persons belonging to these castes were not a class, which is socially and educationally backward. In State of Andhra Pradesh vs P Sagar (AIR 1968 SC 1379), the Court ruled that a test, ‘solely’ based on caste or community for determination of a class, cannot be accepted; but caste cannot be excluded altogether in determining ‘class’ envisaged under Article 15. In the case of A Periakaruppan vs State of Tamil Nadu (AIR 1971 SC 2303), the Court once again ruled that a caste-based test is permissible so long, as such castes are socially and educationally backward, but there should be constant revision of the test to prevent creation of vested interests in favour of castes. Before it, the Periakaruppan and the Rajendran judgement is seen to have undone the criticism of the Nagana Gowda report in the Balaji case and even ‘legitimised’ it (Reddy1990: 29). In State of Andhra Pradesh vs U S V Balaram (AIR 1972 SC 1375, 1395), the Court observed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If data shows that caste as a whole is socially and educationally backward, reservation would be upheld, even if a few individuals in the group may be both socially and educationally above the general average. In Janaki Prasad Parimoo vs State of Jammu and Kashmir (AIR 1973 SC 930), and in K S Jayashree vs State of Kerala (AIR 1976 SC 2381), it was pointed out that poverty alone could not be an exclusive test for determining social and educational backwardness, as a large part of the country’s population was poor. Both caste and poverty were relevant for determining backwardness. In State of UP vs Pradeep Tandon (AIR 1975 SC 563), the Court ruled that the population of rural areas as a whole could not be considered a homogenous class, nor could poverty be the basis of giving reservation to the rural population as poverty
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was everywhere. Reservation in favour of candidates from the rural areas, for admission to medical colleges, was thus found to be bad in law. But it was held that people living in the hill and Uttarakhand areas of the then State of Uttar Pradesh (later these areas became part of the newly created state of Uttaranchal/ Uttarakhand), could be classified as socially and educational backward because of lack of educational opportunity and inaccessibility of the area. • With such divergent opinions in various judgements, in K C Vasanth Kumar vs State of Karnataka (1985 Supp SCC 714), a five-judge bench of the Supreme Court was asked to settle the issue. The judges, even then, gave five different opinions. Four of them, however, felt that caste was also a relevant factor in defining backwardness. Chief Justice Chandrachud laid down two criteria for identifying backward classes for reservation in employment: that they should be comparable to the SCs and the STs in the matter of their backwardness; and that they should satisfy the means test, as the state government may lay down in the given context of prevailing economic conditions. The third judge on the bench, Justice O. Chinnappa Reddy, observed that social status and economic power were so interwoven into the caste-system, that social backwardness was readily identifiable with a person’s caste. Justice Desai on the same bench was of the firm opinion, that economic backwardness should be the primary test to determine social and economic backwardness. Justice Sen was of the view that economic backwardness should not be the sole test of backwardness. And Justice Venkataramaiah felt that caste or community was an important determinant of social and educational backwardness. • Finally, a nine-judge Constitution Bench decided the issue in 1992 in Indra Sawhney vs Union of India (AIR 1993 SC 477). It ruled that caste can be an important or even the ‘sole’ factor in determining social backwardness, and that poverty alone cannot be such a criterion. It also ruled that to maintain the cohesiveness and character of a class, the ‘creamy layer’ must be excluded. The Court has also ruled that the affluent part of a backward class, called ‘creamy layer’, has to be excluded from the said class, and the benefit of Article 16(4) can only be given to the ‘class’ which remains after the exclusion of the ‘creamy layer’.
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The backward class under Article 16(4), according to the Court, in Ashoka Kumar Thakur vs State of Bihar and Others ([1995] 5 SCC 403), means a class which has no element of ‘creamy layer’ in it. Although, not dealing directly with reservations, the judiciary has also held the view in the All India Sainik Schools Employees’ Association vs Sainik Schools Society (AIR 1989 SC 88), that equal treatment of unequals is as bad as unequal treatment of equals. Article 14 of the Constitution allows categorisation, but the judiciary has also ruled in State of West Bengal vs Anwar Ali Sarkar (AIR 1952 SC 75), that a statute is liable to be struck down, if it does not lay down any principle or policy, for guiding the exercise of discretion in the matter of selection or classification; the reason being that it could be misused for discriminating between persons and things, similarly situated. These two cases do not deal with the issue of reservation but are relevant judgements on the concept of equality. Some of the recent and important judicial pronouncements constrain and contextualise reservations based on backwardness. In Indra Sawhney vs Union of India, the Supreme Court fixed a ceiling of 50 per cent for reservations and upheld the ‘carry forward rule’ (unfilled reserved posts being carried forward to the next year) provided reservation did not exceed the 50 per cent limit in a given year. The Balaji (AIR 1963 SC 649) and Devadasan (AIR 1964 SC 179) cases had struck down the carry forward rule. However, in the Indra Sawhney case, the majority of the Supreme Court bench held that the rule of 50 per cent ceiling laid down in the Balaji case was a binding rule and not a mere rule of prudence. A Constitution Bench judgement, in the case of M Nagaraj and Others vs Union of India and Others (2006 [8] SCC 212) in October 2006 laid down the guidelines in the matter. The Court ruled: Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense, otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individual–specific whereas reservation in Article 16(4) and Article 16(4A) is enabling. The discretion of the state is, however, subject to the existence of ‘backwardness’ and ‘inadequacy of representation’ in public employment. Backwardness has to be based on objective factors, whereas inadequacy has to factually exist. This is where judicial review comes in.
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The Court said this while elaborating on its right and the extent to which it can interfere (that is judicial review). But the Court also said: However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained. We reiterate that the ceiling-limit of 50 per cent, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all ‘constitutional requirements’ without which the structure of equality of opportunity in Article 16 would collapse.
It is made clear that even if the state has compelling reasons, as stated above, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50 per cent or obliterate the creamy layer or extend the reservation indefinitely. Most importantly, the court also made it amply clear that reserved category candidates were free to compete for vacancies in the general category. In the Indra Sawhney case, the Court held that reservations under Article16 (4) do not operate on a communal ground. Therefore, if a member from the reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly in R. K. Sabharwal case ([1995]2 SCC 745), the Supreme Court held thatwhile general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of backward class individuals has been appointed/promoted against general seats in the state services may be a relevant factor for the state governments to review the question of continuing reservation for the said class. These judgements were followed by the controversy over the Central Educational Institutions (Reservation in Admission) Act 2006 which came into force in January 2007. It was challenged in court on the ground that the law was enacted and was being implemented without ascertaining existence of backwardness. Once again the question of the very definition of backwardness and identifying the backward classes was raised before the courts for adjudication. The government has been arguing that reservation in jobs was
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already being provided and upheld by courts. However, a two-judge bench of the Supreme Court, while giving an interim order noted the submission that no caste census has taken place after 1931 and this fact was sufficient to question the claim by Mandal Commission that OBCs constituted 52 per cent of the population. This was not looked into by the Constitution bench in the Indra Sawhney case. The other objections raised by the petitioners were: the government had not prepared a list of beneficiaries before enforcing reservation under the Act and the list of OBCs being used for providing reservation in jobs was also being used to identify the castes. Although the latter had passed the test of judicial scrutiny in Indra Sawhney case, the petitioners argued that Section 2(g) of the Central Educational Institutions (Reservation in Admission) Act 2006 defined OBCs as the ‘class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government’. A determination, contemplated under the Act, they argued, should have preceded the enforcement of the law. The requirements of Section 2(g) are not met by referring to lists meant for cases covered by Article 16 (jobs).The Court had said in the Indra Sawhney case that backward class of citizens contemplated in Article 16(4) (jobs) was not the same as Socially and Educationally Backward Classes referred to in Article 15(4). Section 11 of the National Commission for Backward Classes Act 1993 specifically provided for a periodic revision of the lists but that had not been done, the petitioners contended. Nor was creamy layer being excluded. The concept of ‘creamy layer’ was limited to reservation in employment and had no relevance for Article 15. However, the Court in the Indra Sawhney case had cleared reservation on the basis of caste but minus the creamy layer. The government cannot rely on a part and reject the other part of the judgement. If the same list is used it has to be minus the creamy layer. Therefore, the apex court has held that the exclusion of creamy layer was a constitutional requirement. The Central Educational Institutions (Reservation in Admission) Act 2006 was enacted after the 93rd Constitutional Amendment and provides for reservation in government educational institutions only. This, however, not the first legislation passed after the 93rd Amendment. Tamil Nadu had led the country with the enactment of the Tamil Nadu Backward Classes, Schedules Castes and Scheduled Tribes (Reservation of seats in Educational institutions) Act, which has also been challenged before the apex court.
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CONCLUSION From the time when reservation policy began, courts have tended to constrain what they considered either ill-defined or profligate policies of the government. Thus, we find that courts have constantly forced governments to clearly define the basis of their reservation policy much before Mandal Commission report was implemented. Thus, in Andhra Pradesh, Bihar, Jammu and Kashmir, Kerala, Karnataka, Madhya Pradesh, Punjab, Tamil Nadu and, as one has seen, at the Centre, the courts have nullified the list of OBCs prepared by the government of the day, by questioning their very basis, thereby forcing them to refine the OBC lists and redefine backwardness, giving solace to those who feel they have been done down by reservations and in some cases extending it to those deserving it. Citing the elite character of the judiciary, Marc Galanter, in his study of cases of reservations that were mediated by the judiciary, claims that overall the courts have been severe critics of government policy. He found that the overall impact of litigation on the reservation policy had been ‘to curtail and confine it’. Those who opposed the reservation policy in courts had remarkable success while those seeking to extend reservations were less successful (Galanter 1984: 486–87, 511). Analysing such cases that came up before the courts, between 1955 and 1977, he found that the most common of litigants in these cases is the prospective admission seeker to higher technical or professional college, who felt that he was excluded because of what he regards as an unwanted reservation. Virtually all such cases relate to reservations for the OBCs. While the cases are typically filed by an affected litigant, he is often joined by caste and community associations. Galanter’s conclusion was that the courts ‘have succeeded in establishing a variety of limits on the designation of Backward Classes, the extent of reservations, and the standards for the operation of preferences’ (Galanter 1984: 503). The propensity to litigate against a government policy of reservations, he argues, depends on factors such as the feeling of deprivation when opportunities are scarce; costeffectiveness of the litigation—the cost of obtaining the opportunity through legal action rather than through other means (for instance, low fee in a government medical college vs high fee in a private medical college); the publicity that such litigations generate and its
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role in attracting other petitioners in; and the expectation of success (pp. 509–10). He found that those reservation schemes, which were the most expansive and seemed the most flagrant abuser of state power, were the ones taken to court: The first round of cases (the 1951 cases) came up from the old Madras system of communal quotas rather than from a scheme specifically designed to advance the backward classes. Subsequently, it was the Mysore situation, which was little removed from communal quotas that produced litigation and Supreme Court law. Debate on backward classes policy has been strongly affected by the fact that the crucial and definitive litigation has come out of Mysore where reservation for backward classes were the most flagrant and expansive. Had some state with a more modest scheme of preferences been the source of some important litigation, the law might have taken a somewhat different shape. (Galanter 1984)
Galanter argues that the courts have tended to restrict the expansiveness of the reservation schemes ‘to counter excessive and unwarranted preferences for the Backward Classes’ (Galanter 1984: 512). The direct impact of litigation, he argues, is to transform a settled policy into an open issue as in Mysore, Andhra and Kerala. There the litigation resulted in the setting up of commissions to formulate a new state policy with regard to reservation. The indirect impact of litigation, Galanter points out, is ‘to alter the constellation of groups which sup-port or oppose a preference policy’ (pp. 527–28). He concludes that the courts must not be seen as ‘enemies or even as inadvertent wreckers’ of reservation policy or being ‘somehow responsible for its deficiency and shortcomings’. Instead, he argues: If the courts have in a few instances played a restrictive role, this has been far outweighed by their positive contributions. Probably the greatest of these is to give, compensatory discrimination legitimacy. By giving remedies in cases where others feel hurt by it, the courts have made the public feel, if not enthusiasm, that at least it is not out of control and is somehow compatible with the welfare of all. By containing and curtailing the system, the courts have helped to maintain and preserve it, though at a level of performance below that of paper commitments. (Galanter 1984: 545)
Galanter’s conclusions by and large remain valid, even after 1977. However, the consensus on defining backwardness and identifying
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the backward classes is still elusive. There is still a constant recourse to court judgements. The judiciary does not consist of sociologists and it has no independent research machinery to identify backwardness of a particular caste or the creamy layer in it. While the state is guided by popular politics, the courts are still searching for ‘evidence’ of backwardness. The interaction, between those who wish to improve their condition through reservation, the state and the judiciary is no longer smooth and self-correcting. It has become a process of confrontation introducing instability into the system. The compulsions of electoral politics dictate that the state pushes for gross over-inclusion in reservation—the greater the number of beneficiaries, the larger the vote-bank of the party— which can claim ownership of the reservation policy. The judiciary wants to curb that tendency and moderate the policy. It is egged on to do so by the votaries of merit—usually the upper caste and professional classes. Those castes, which are the potential beneficiaries of reservation, see the judicial decisions as biased because of the caste and class background of the judges. With each actor in confrontation with the other, reaching a social equilibrium, by reconciling equal treatment with reservations becomes increasingly difficult. In the pre-Independence period and in the immediate aftermath of the birth of India, the reservation and other welfare policies for the SCs and the Backward Classes were the result of popular movements for an equitable and just society. These policies were not seen as favours or patronage being distributed by caste leaders in politics. However, that is no longer the perception. The breakdown of centrist parties, like the Congress, for various reasons including their inability to fulfil regional, caste-based aspirations, has led to the growth of region-specific, caste-based political parties. It is confrontation and not reconciliation between castes that benefits these parties electorally. Their demands, however justified, and their aggressive and provocative actions, make social equilibrium and legitimate large-scale and unqualified reservation policies difficult. This is true of both parties, which have come to represent the OBCs as well as the forward castes. It is no secret that the aggressive agitation of the upper-caste and pro-merit medical students and doctors of India’s top teaching and research hospital, All India Institute of Medical Science in Delhi, the students of Indian Institutes of
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Technology and other professional institutions had the tacit support of some right wing political parties with upper caste leadership. The changing nature of the interaction among the state, the votaries of fair representation and the judiciary is now palpable. Gone are the days when upper caste leaders supported reservations and participated in social reform movements aimed at improving the condition of the backward classes as, say, in Travancore. The caste cleavages of Indian society have been deepened because of the reservation issue. Only the liberals, those on the Left and the direct beneficiaries, support reservations. The freedom movement had led to a social consensus for reservations (Poona Pact, etc.). That consensus no longer exists. Earlier, it was clear that by not opting for a central list of OBCs, the government wanted the states to develop their own economic criteria in identifying backwardness. Because of the formation of coalition governments even at the Centre and the ensuing electoral compulsions, that suggestion is no longer there. Indeed, today it is the largest coalition partner in power at the Centre, which does not want any economic criteria of backwardness to be used, reducing it merely to caste. In the states too, who is included or excluded in the list of OBCs, is determined by electoral necessities, rather than by any egalitarian notion of social justice. Historically, reservation policy did not emerge as a result of the over-ambitiousness of caste-based politicians. The demand for reservation was raised and implemented by the state as a result of people’s movements for egalitarianism, right to education and a share in governance in the face of an exploitative and blatantly skewed caste representation in government jobs. There is no doubt that these decisions of the government were challenged by those adversely affected by it or those who wanted to expand the scope of government policy. And they were eventually mediated by the judiciary for implementation in a form that legitimised them at broadly acceptable and therefore socially legitimised levels. However, today that is not the perception. From being an instrument of egalitarianism, reservation policy is now seen as the most blatant expression of what has come to be known ‘vote-bank politics’. The conflict patently lies in the apprehension that these special opportunities have become so extensive that they are likely to impact adversely on the provision of equal opportunities for all—that it threatens the more general principle of equality for all irrespective of caste, creed and community.
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ACKNOWLEDGEMENT I am grateful to several friends and colleagues for helping to clarify my ideas on the reservation issue and for helping out with various reports and documents. I would especially like to thank K. Subrahmanya, M.R. Venkatesh, Tapas Chakravarty, Gautam Datt, Monobina Gupta and Poornima Joshi for their help. My friend Gyanant Kumar Singh deserves a very special mention for painstakingly guiding me through the legal maze and for finding time to explain various judgements and constitutional provisions to me. And, as always, I am grateful to Rashmi Pant for being my first reader and the first critic.
NOTES 1. For details, see Srinivas (1997). 2. For details, see Andhyarujina (2006).
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4 Trivialising Justice Reservation under Rule of Law ASHOK AGRWAAL
INTRODUCTION
T
his chapter is based on the assumption that the state arises out of an implicit and involuntary contract among the people. The contract is implicit because no one ever signs one and, it is involuntary because everyone must perforce become party to it, without any choice in the matter. The contract places the reigns of power in the hands of a ruling elite (or class), which claims to wield it in its own right (as the rulers of yore) or, as is the modern fashion, in the name of the ‘people’, over whom it exercises domain. It is also implicit in this contract that the power of the state shall be exercised for the common good and even the most absolute or arbitrary of rulers cannot but profess to do so. The consequences of the assumptions with respect to the manner in which the state is said to have come into being (and how it is ruled) can be ignored. The problem is with the term ‘common good’, or social justice, the expression that will be used in this essay. The Indian Constitution is divided into 22 parts containing 395 sections, called articles. The spirit of the Constitution is stated to be embodied in the Preamble, which constitutes the nation into a ‘sovereign socialist secular democratic republic’, promising to secure to all its citizens, justice, liberty, equality and fraternity. Patently, the meanings of all
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these terms are linked. A notion of justice is meaningless without liberty, equality and fraternity; true liberty is premised on equality, which in turn, is a virtual synonym for both fraternity and justice.1 Each of the terms—justice, liberty, and so on—is further elaborated in the Preamble itself. Justice is explained as encompassing the ‘social, economic and political’. Liberty includes ‘of thought, expression, belief, faith and worship’. Equality is defined as ‘of status and opportunity’. Finally, fraternity is clarified as ‘assuring the dignity of the individual and the unity and integrity of the nation’.2 Thus, the Preamble is an emphatic statement, asserting that the raison d’être of the Indian state is social justice in all its aspects, for all its citizens. It may be said to imbue the entire constitution with the spirit of social justice. Each and every decision and action of the state, its instrumentalities and its officials—elected and appointed—must, perforce, pass this test or be declared invalid and void. Strictly speaking, the Indian bill of rights, comprising of civil and political rights guarantees, usual to a liberal democracy, is contained in Part III of the Constitution, which is titled ‘Fundamental Rights’. However, with a preamble as described above, such a truncated bill of rights could not have sufficed. Therefore, the constitution makers also devised another section called ‘The Directive Principles of State Policy’, contained in Part IV of the Constitution. These, as the name suggests, are precepts by which the state is expected to rule.3 Together, the two parts are a detailed articulation of the ideals expressed in the Preamble. Though the framers of the Constitution had placed Fundamental Rights and Directive Principles on different platforms, evolving notions of justice and governance have erased many of the key differences between them. Thus, a basic distinction—that the Fundamental Rights were justiciable while the Directive Principles were not—stands considerably diluted today. On the one hand, the view that government should be transparent and accountable has resulted in making many of the Directive Principles also justiciable, subject, of course, to reasonable limitations imposed by ‘real-life’ constraints. On the other hand, some of the Fundamental Rights, such as the right to life, have evolved from being interpreted in a literal manner to become a metaphor for almost every aspect of the social, political and economic life of a person. Since many of these expansions of the meaning of ‘life’ are also the ‘Directive Principles’, by which the State
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must govern (or, the social justice goals that it must strive for), once again these principles become justiciable.4 A right without the power to enforce it is a farce. The Latin maxim—Ubi Jus Ibi Remedium—must therefore find pride of place in any bill of rights worth its name.5 Recognising the overwhelming importance of the maxim, the Indian bill of rights incorporates the remedy within itself, as a ‘right’. Article 32 of the Constitution, forming part of the Fundamental Rights guaranteed by the Constitution, makes it obligatory for the Supreme Court to act in defence of the guaranteed rights of the citizens. It is also settled law, that the Court is not hamstrung by rules and procedures, and it is free to ‘fashion’ the remedy to suit the need (Bandhua Mukti Morcha vs Union of India, AIR 1984 SC 802). When seen in conjunction, the rights and the remedy make it clear that the framers of the Constitution voted to give themselves (and all other Indians) a state that would strive to promote social justice with all the resources at its command, so as to arrive at a position of relative equality among its citizens at the earliest. To sum up, from the right to equal representation in the legislatures to the right to food, clothing, shelter, health, education, and so on, all are part of the Indian social justice agenda, as defined in the Constitution. Freedom of speech and expression, to assembly and association, to the practice of one’s profession and religion are also intrinsic to this agenda. Freedom from exploitation (whatever that means, given the completely exploitative nature of almost all social organisation) is also integral to it. Finally, protection of weak/vulnerable sections of the population, such as women, children, minorities (religious, ethnic, or other), and special measures for promoting their welfare, also form part of this agenda. The Constitution provides for all these and also provides for the remedies necessary to ensure compliance or to prevent a breach of this agenda.
EQUALITY
FOR THE
MASSES
Article 14 of the Indian Constitution guarantees every person, equality before the law and equal protection of the law. This broad assurance of equality is the grundnorm or the touchstone, which all equality statements must satisfy. Though the assurance is to every person, at all
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times, it is not of absolute equality, which is theoretically impossible, but of parity with those who are similarly situated. It is obvious that ensuring such equality is an extremely difficult task, even when not complicated by the requirements of positive discrimination in favour of those sections of society who would be sidelined if only formal equality was enforced. Given the nature of the equality statement, ensuring equality along with positive discrimination, or substantive equality, becomes a virtual impossibility. Since such laws, and the programmes based upon them, are aimed at unsettling the status quo, it is inevitable that they should give rise to contestations and disputes. Such disputes generally claim that the impugned positive discrimination law (or programme) violates the right to equality of the person (or persons), against whom the positive discrimination operates. In such circumstances, it is the role of the Courts, particularly the Supreme Court to interpret and explain the meaning of the laws made by the Legislature and, to declare the intention of the Legislature in making such a law.6 The Court simultaneously rules on the validity of the law (or programme) in question, that is, whether it is consistent with the grundnorm of Article 14, thereby adjudicating upon the actual dispute raised. These elaborations, explanations and adjudications, then become part of the law of the land. Thus, legislations promoting equality are only the first step in the chain that results in affirmative action. The task of the courts is particularly difficult when the law in question is the Constitution, requiring them to chart a path through a veritable minefield, with blunders and unintended consequences peering at every turn. The manner in which this is to be approached is suggested by the following quotation from Justice Krishna Iyer’s judgement in the State of Kerala vs N.M. Thomas case (AIR 1976 SC 490): The important task of construing the articles of a Constitution is not an exercise in mere syllogism. It necessitates an effort to find the true purpose and object, which underlies that article. The historical background, the felt necessities of the time, the balancing of the conflicting interests must all enter into the crucible when the Court is engaged in the delicate task of construing the provisions of a Constitution.
In the legal (or constitutional) sense equality does not mean absolute equality but an equality of opportunity. Formal equality of opportunity
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is the simplest form of equality of opportunity. This dispensation requires that positions and posts that confer advantages should be open to all applicants, who should be assessed on their merits, and the person deemed most qualified according to pre-stated criteria be offered the position.7 This notion of equality does not require either ‘democracy’ or a private property based social system.8 However, formal equality can suffice to provide a level playing field only if the players are otherwise equal. In the Indian setting, where the vast majority of the population suffers millennia old hereditary handicaps, exacerbated by the fact that the benefits of western education and exposure were also sequestered almost entirely by those who enjoyed the hereditary advantages, such equality would not have gone far in promoting an egalitarian ethos in society. For equality to be meaningful provisions for substantive equality of opportunity were needed. The Indian equality code, contained in Articles 14–18 of the Constitution, contains both elements of equality, formal and substantive, with the requirement of compensatory discrimination (Galanter 1984: 3)9 being incorporated in Articles 15 and 16.10 In one of the earliest cases in which the Supreme Court was required to interpret the Indian equality principle, the Court quoted an American jurist on the meaning and effect of the guaranty: The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification, which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the (fourteenth) amendment... was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation…. It does not take from the states the power to classify…but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis…. Many different classifications of persons have been upheld as constitutional. A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it.11
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Thus, a principle of classification, permitting differentiation between dissimilarly situated persons or groups of people, is used to bridge the gap between the ideal of formal equality and the reality of substantive inequality. The principle has been used to justify the constitutional mandate of compensatory discrimination in favour of Dalits, Adivasis and several other categories of persons identified as needing help or support or the special attention of the State and its agencies. The sophistry inherent in using inequality to attain equality is illustrated by the following extract from the decision of the Supreme Court in the N.M. Thomas case: Differentiation is inherent in the concept of equality. Equality can only be attained by devising a principle of classification or, parity of treatment under parity of conditions. But inequality is inherent in the very idea of classification. The court resolves this paradox by taking a middle path between the public demand for equality and the right of the legislature to classify. The doctrine (of reasonable classification) assumes that the Legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. However, a classification must rest upon distinctions that are substantial. The test is: whether the classification has a reasonable basis, free from artificiality and arbitrariness, and embraces all and omits none who naturally fall into that category created. (State of Kerala vs N.M. Thomas [AIR 1976 SC 490])
To sum up, while classification is seen as a desirable, even essential, attribute of the practice of equality, it is not free of problems. As will be seen below, these problems have contributed significantly to the failure of affirmative action programmes aimed at generating adequate opportunities in public employment for Dalits.
THE QUEST
FOR
EQUALITY: A PARADIGMATIC CASE
The Background Reservation, the most important form of compensatory discrimination in India, is applicable to elected bodies, public appointments and seats in educational institutions.12 Articles 330–333 provide for reservation in the various legislatures for the Scheduled Castes
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and Tribes and Anglo-Indians in the Parliament and the provincial legislatures. 13 Articles 243D and 243T provide reservation in panchayats and municipalities. In addition to the electoral quotas Articles 15 and 16 empower the state to make ‘special provision’ for women (and children). Articles 15 and 16 both open with a prohibition against discrimination on grounds ‘only of religion, race, caste, sex, descent, place of birth, residence or any of them’. Article 15 operates both against the state and the public at large, prohibiting discrimination and denial of access ‘to public placers such as shops, public restaurants, hotels and places of public entertainment; or...the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partly out of state funds or dedicated to the use of the general public.’ Article 16 affirms the principle of substantive equality in public employment. It also enables reservation in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. This power to make laws providing for reservations must be read along with Article 335, which provides that: The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.14
Pursuant to Article 16, the Government of India has made rules providing for 15 per cent reservation15 of government posts in favour of the Scheduled Castes (Dalits) and 7.5 per cent reservation16 in favour of the Scheduled Tribes (Adivasis).17 Galanter has called untouchability a problem whose solution was required to unlock India’s national destiny. The manner in which social justice for Dalits acquired a central place in the framework of constitutional governance in India is essential for understanding the efficacy of reservations as a tool for increasing social justice. Till the early years of the 20th century the nationalist movement considered social justice issues, particularly the ‘problem’ of the untouchables, secondary to the goal of political liberation from British rule. Many leaders of the nascent nationalist movement considered social reform a divisive issue (Galanter 1984).18 As late as 1910, some upper caste Hindus were demanding that Dalits should be excluded from the Hindu fold in the Census (Galanter 1984: 26).19 However, the
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politics of numbers in the context of the Hindu–Muslim divide forced them to bring the issue of Dalit (or untouchable) social justice to the centre stage. The first of two developments that forced a change in their stance was the granting of the Muslim demand for separate electorates by the Morley–Minto reforms of 1909, and the second was the proposal of the Census Commissioner for 1911 that the untouchables (then known as Depressed Classes) should be enumerated as a group separate from the Hindus (Galanter 1984: 26). Quick to see the advantage of such a development the Muslim League promptly endorsed this suggestion (p. 26). Almost overnight, the issue of the integration of Dalits into the Hindu fold was transformed from a divisive issue into a unifying one (p. 26).20 To quote Eleanor Zelliot: The grant of an electorate for Muslims in which they alone would vote brought the idea of communal electorates for minorities to the forefront in the minds of all communities …. The granting …also made numbers important. Whether the vast numbers of Untouchables were truly Hindu and to be counted as such, or not, became an important question for the first time. (As quoted in Galanter 1984: 26)21
The rise of Ambedkar on the political firmament was the next stage of the process. Unlike Gandhi, he believed that only vigorous governmental intervention and political action could overcome the denial of civil rights and economic opportunities to Dalits (Galanter 1984).22 Ambedkar’s struggle to obtain guarantees of a place for Dalits in independent India does not bear repetition. It would suffice to say that the evolving stand of the Dalits between 1928, when the Simon Commission came to India to discuss constitutional reforms, and 1932, when the Poona Pact was signed by Ambedkar, determined the shape that independent India’s commitment to social justice for the Dalits would take.23 Seats in the legislatures were reserved for Dalits for the first time in the elections held in the wake of the Government of India Act of 1935. Thereafter, several ‘popular’ governments installed in the various provinces passed legislations criminalising denial of access to public facilities to Dalits. Small improvements in the availability of educational opportunities and steps to reserve some posts in government service also followed (Galanter 1984: 36).
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The issue of how to bring about substantive equality for the marginal and deprived sections of India was extensively debated by the Constituent Assembly. In his speech moving the resolution for setting up of an advisory committee on the subject of fundamental rights and minorities, G.B. Pant spoke of the need to atone for ‘our omissions’ so that the Depressed Classes, the Scheduled Castes and the Backward Classes are brought ‘up to the general level…as much in our interest as in theirs’.24 Ambedkar, who was also a member of this committee, submitted draft articles on the rights of the minorities, which reflected his view that the Scheduled Castes were a minority. He proposed an elaborate structure of prescriptions and proscriptions to protect their rights, to enable them to lead a life of dignity and full self-expression. The provisions included a guaranteed right of representation in all legislative/elected bodies, reserved right of ‘minimum representation’ in the Union and the State executives, and in service under the municipal and local bodies, financial support for the higher education of the Scheduled Castes, establishment of ‘separate villages’ for the Scheduled Castes using the uncultivated lands of the State for this purpose, and special procedures for altering, amending or abrogating these safeguards, to put them beyond the reach of an ordinary majority in the legislatures. Though the present constitutional provisions for Dalits and Adivasis are far less than what B.R. Ambedkar wanted, it cannot be gainsaid that the social justice and accountability agenda of the new nation would not have been spelt out to the extent it has been but for Ambedkar.25 However, by forcing Ambedkar to give up his demand for separate electorates mainstream Indian politics was able to indefinitely delay the emergence of Dalits, as a significant force in Indian politics.26 Mayawati became the first Dalit Chief Minister of an Indian province only in 1995.27 She is also the only Dalit politician till now to acquire a national stature while openly espousing a Dalit agenda.28 The almost total success of mainstream politics in co-opting Dalit (and Adivasi) politics coupled with the provisions in the Constitution providing for reservations in public appointments and in educational institutions, paved the way for a significant degree of judicial participation, in articulating major aspects of social justice for Dalits in post-Independence India. Since a very large percentage of the
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judicial pronouncements have been in connection with reservation in public employment, I shall focus on this aspect of the matter alone. The Period till 1990 The judicial debate on reservations has primarily revolved around two issues: the issue of a numerical limit on reservations, and the issue of reservations in promotion. The first issue has two aspects. The first aspect is the extent of reservation, or the percentage of posts in a cadre or a service that are required to be filled by reserved category appointees.29 Till 1990, reservation in government jobs was mainly for the Dalits and the Adivasis.30 This was initially fixed at 17.5 per cent, which was subsequently raised to 22.5 per cent. While this reservation was resented/resisted by the generalists (those who could not avail of reservation quotas), it never acquired the character of an issue, since the Supreme Court was categorical in affirming the validity of the principle of reservations for Dalits and Adivasis and, since the prescribed percentages of reservation in their favour roughly approximated the numerical strength of Dalits and Adivasis, respectively, in relation to the total population of the country. Besides, though nominally the general category posts and vacancies were open to all non-Dalit, non-Adivasi sections of the population, they were, in fact, almost entirely cornered by the upper castes. Thus, about 25 per cent of the population enjoyed access to about 75 per cent of the posts and vacancies.31 The extent of reservations, therefore, became an issue only after implementation of the Mandal Commission report in 1990, when reservations were introduced for Other Backward Castes (OBCs). With the implementation of reservation for OBCs the reservationists came to represent a majority of the total population. This fundamental change in the equation necessitated a recasting of the thesis that had been used till that date to both, enforce reservations and to control it.32 The second aspect of the first issue also pertains to a numerical limit, with reference to the maximum percentage of vacancies in a particular year that can be permitted to be reserved.33 This aspect was a result of the operation of the ‘carry forward rule’. This rule was applied because, despite reservations, the state found it impossible to fill the posts/vacancies reserved for Dalits and Adivasis, due to a lack
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of eligible candidates among these communities.34 Attempts to fill the reserved posts by permitting recruitment of lower ranked Dalit/ Adivasi candidates, also failed to serve the purpose.35 Thereafter, the government issued instructions providing that reserved quota vacancies that remained unfilled, despite such relaxation, would be carried forward to the next year. This rule, providing for carrying forward unfilled reserved vacancies for one year, was also a failure.36 By an Office Memorandum dated 7 May 1955, the government relaxed this rule, to allow unfilled reserved posts to be carried forward for two years, instead of one. Though most reserved quota vacancies and posts continued to be, ultimately, filled with general category appointees, the operation of the carry forward rule frequently resulted in, over 50 per cent of the vacancies in any given year being reserved for Dalits and Adivasis. The bone of contention in the second issue is that of seniority. It arises from the granting of accelerated promotions to reserved category appointees, making them senior to the general category appointees, to whom they were junior at the time of initial appointment.37 Till the decision of the Supreme Court in the General Manager, Southern Railway vs Rangachari (AIR 1962 SC 36) case, the generally accepted position was that reservation was only permissible at the stage of recruitment. By this decision, the Court interpreted the expression ‘reservation of appointments or posts’, used in Article 16(4), to mean that reservation was permissible not only at the stage of initial appointment but also in posts, to be subsequently filled by such appointees by way of promotion. As stated, reservation in promotion resulted in Dalits and Adivasis getting promoted at a faster pace than their general category colleagues. As a consequence, persons who were junior to the general candidates at the time of recruitment become senior to them, resulting in intense heartburn among the latter.38 In other words, the generalists, as far as possible, resisted even the trickle of jobs that the Dalits were able to garner.39 Over the last six decades, thousands of cases have been filed in the courts challenging the equally numerous rules, orders and notifications issued by the central and state governments, for giving effect to the constitutional mandate of compensatory discrimination in their favour. Since jobs were few and aspirants many times more, the competition for each job was severe. In the circumstances, every advantage that could help
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secure a job (and a future) was worth fighting for, irrespective of larger ethical considerations.40 On the other hand, the continuing difficulty of finding sufficient number of eligible candidates for appointment to reserved vacancies, advertised by the respective governments, attests to the fact that even 59 years after reservations were introduced measures to upgrade the skills of Dalits and Adivasis have, at best, met with only partial success.41 The challenge to the ‘extent of reservations’ permissible in a particular process of recruitment (in a particular set of vacancies), arising out of the operation of the carry forward rule, illustrates a vital facet of equality, as it is understood and practised in India. Vacancies can be carried forward in two ways. One method is to de-reserve the unfilled vacancies of the current year, fill them with eligible general category candidates and, add an equivalent number of vacancies in the subsequent year/s to the reserved category. The second method is to leave the unfilled vacancies as they were, re-advertising them in the succeeding years. In either case, the permissible ‘carry forward’ period has never been permitted to exceed two years. Thus, irrespective of the method used, if at the end of the third cycle of recruitment a reserved vacancy remained unfilled it is de-reserved.42 During the first few decades much of the reservations regime was a paper exercise: of first reserving and then de-reserving vacancies. Notwithstanding the general paucity of reserved quota candidates (and the resultant permanent loss of appointments to the reservationists), the carry forward rule did result in occasional instances where reserved quota candidates filled more than 50 per cent of the total vacancies in a given year. While it is impossible to state that the general quota candidates challenged such recruitment every time this happened it would be safe to state that in most cases such recruitment was challenged by the generalists. The T. Devadasan vs Union of India and Another (AIR 1964 SC 179) case was one such. The Devadasan case is the first case before the Supreme Court, in which the issue of a numerical limit on reservations under Article 16(4) was thrown up. The case arose because the operation of the carry forward rule for two years had resulted in 32 of the 48 vacant posts, advertised in a particular year, being reserved for Dalit and Adivasi candidates.43 The petitioner, Devadasan, argued that the operation of the carry forward rule violated his fundamental right to equality, guaranteed under Articles 14 and 16(1). Because of it, about 65 per cent
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of the vacancies to be filled fell into the reserved category, depriving him of an appointment even though he had secured 61 per cent marks, while reserved quota candidates with as low as 35 per cent marks were appointed.44 He claimed that but for the carry forward rule he would have been appointed to one of the posts to be filled. Devadasan contended that reservation under Article 16(4) cannot be so extensive as to nullify or destroy the right conferred by Article 16(1). It was also argued that earlier decisions of the Supreme Court had held Article 16(4) to be merely an exception to Article 16(1) and, as such, it cannot be interpreted so as to render the main provision meaningless.45 Finally, it was argued that Article 16(4) must be read in conjunction with Article 335, which emphasises that efficiency of administration must be maintained (and not allowed to suffer) while considering the claims of members of Scheduled Castes and Tribes to appointment to government posts.46 Devadasan also made two other arguments based on Article 14, which are not relevant to this discussion. The Devadasan case was heard by a bench of five judges of the Supreme Court.47 The opinion of the Court was divided, with a majority of four judges declaring that the carry forward rule was unconstitutional and, striking it down. They held that reservation must always strike a ‘reasonable balance’ between the claims of the backward classes and the claims of the other employees. They also held that reservation of more than 50 per cent of the vacancies in a given year, for whatever reason, would not be constitutional. Expounding on the scope of the guarantee of equality under the Constitution, the majority decision of the Court reiterated the established position, that Article 14 prohibits invidious (or arbitrary) discrimination by the state between two citizens who answer the same description and the differences which may obtain between them are of no relevance for the purpose of applying a particular law. However, the majority decision said, ‘reasonable classification is permissible’. Thus, it acknowledged, by virtue of Article 16(4), a rule for reservation in favour of Dalits and Adivasis will not violate Article 14 ‘merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or even more meritorious than the members of the backward classes’. However, the Court said, ‘(a) [i]f the reservation is so excessive that it practically denies a reasonable opportunity for employment to
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members of other communities the position may well be different and (b) it would then be open for a member of a more advanced class to complain that he has been denied equality by the State.’ Constructing a numerical example to discuss the carry forward rule, the majority decision referred to an earlier decision of the Court in the case of M.R. Balaji and Others vs State of Mysore (AIR 1963 SC 649), which had held that reservation of more than 50 per cent of the seats in an educational institution (under Article 15[4] of the Constitution) was unconstitutional. The Devadasan majority also pointed out that while so holding, the Balaji decision had declared that what is true in regard to Article 15(4) is equally true in regard to Article 16(4). The Devadasan majority went on to state that: …(t)here can be no doubt that the Constitution makers assumed, as they were entitled to, that while making adequate reservation under Art. 16(4) care would be taken not to provide unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating widespread dissatisfaction amongst the employees, materially affect efficiency.48
The Devadasan majority cited the Balaji decision as a precedent for the proposition that Article 16(4) is in the nature of a proviso or an exception to Article 16(1), and cannot be interpreted so as to nullify or destroy the main provision. If unlimited reservation of appointments is permitted under Article 16(4), it would amount to effacing the guarantee contained in Article 16(1) or, at best, make it illusory. The Court said that ‘(n)o provision of the Constitution or of any enactment can be construed so as to destroy another provision contemporaneously enacted therein’. Referring to the non-obstante clause with which Article 16(4) opens, namely, ‘Nothing in this Article shall prevent the State from making any provision for the reservation of appointments...’ the Court said that: …this does not mean that the provision made by the State should have the effect of virtually obliterating the rest of the Article…. The overriding effect of 16(4) on 16(1) and (2) can only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all.49
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Thus, while declaring reservations to be the outcome of a permissible classification, the majority judges of the Devadasan Court sidestepped a direct answer to the question of whether the carry forward rule was also an instance of such permissible classification. Instead they chose to indirectly deny validity to the classification implicit in that rule by declaring that Article 16(4) was an exception to Article 16(1) and, as such, only reasonable reservations could be countenanced under it.50 Finally, in a significant exposition of the Court’s position on the equality principle, which can be said to epitomise the Supreme Court’s view of equality in the context of reservations, the Devadasan majority declared that: We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. 51
The above position colours everything that the Court has said or done in the context of reservations, notwithstanding stray sentences (or even positions) to the contrary. Given the language of Article 14, this equality statement is not out of the ordinary. Further, in the context of notions of state and citizenship, it is quite natural to interpret equality as a guarantee personal to each individual citizen. However, the statement brings to the fore an unresolved problem with respect to equality or, as the Supreme Court has interpreted it, equality of opportunity. The foregoing statement of equality implies that under the Constitution, formal equality and substantive equality are to be viewed as two separate, discrete concepts, operating simultaneously but independent of each other. It sets up formal equality as an ideal and declares that while present circumstances militate against adherence to its principles, each application of the substantive equality norm is
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liable to be tested, against the formal equality norm, for validity.52 That such a construction is not a (legal) necessity is patent from the judgement of the fifth judge in the Devadasan case, Justice Subba Rao, who delivered a separate, dissenting opinion. In which case the question arises, why has the Supreme Court not adopted the simpler and, in my view, far more rational view propounded by Justice Subba Rao? While it is patent that this failure, assuming it has been correctly identified as one, is collective to the Supreme Court the majority judges in the Devadasan case bear a special responsibility on account of the fact that they had the benefit of a superior logic at hand. The opinion delivered by the fifth judge in the Devadasan case, Justice Subba Rao, is a lucid and simple exposition of the principle of affirmative action (reservations), in the context of constitutionally guaranteed equality of opportunity. He held that the mere fact that more than 50 per cent of the vacancies in a given year were reserved for Dalits and Adivasis because of the operation of the carry forward rule (or for any other reason), cannot invalidate the rule in question. He felt that the only circumstance in which a provision for reservation could be invalidated was if it resulted in an unreasonably disproportionate part of the cadre strength being filled up with Dalits and Adivasis. In other words, Justice Subba Rao held that it was the total strength of the Dalits and Adivasis in a cadre or service, and not the percentage of vacancies (of that cadre or service) that were reserved for Dalits and Adivasis in a particular year, which was relevant for determining the constitutionality of a provision for reservations. If the reservation policy of the government (in itself or in its operation) resulted in more than the prescribed percentage of posts in a cadre or a service being filled by reserved quota appointees, then that policy (or its operation) would be unconstitutional, and liable to be struck down.53 Referring to the language of Article 16(4), Justice Subba Rao differed from his colleagues and declared that the non-obstante clause with which Article 16(4) begins is a legislative device to express the intention in a most emphatic way that the power conferred under it is not limited in any way by the main provision but falls outside it.54 The expression makes it clear that the framers of the Constitution wished to preserve an untrammelled power of reservation, rather than carve out an exception to Article 16(1).55 Further, he said, three expressions stand out in bold relief in Article 16(4), namely:
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1. Any provision for the reservation of appointments (or posts), 2. In favour of any backward class of citizens, and 3. In the opinion of the State, is not adequately represented in the services under the State. He asserted that the word ‘any’ in the expression ‘any provision’ must intend to confer the widest amplitude, leaving the nature of the provision for reservation to be made by the state to its discretion. The only limitations (or conditions) that could operate on this discretion must be those that are to be found in Article 16(4) itself. In other words, the reservation must be for appointments or posts, it must be in favour of a backward class and, the state must be of the opinion that such backward class was not adequately represented in services under it.56 Once these conditions were satisfied, he said: …the State is at liberty to make any provision for the reservation of appointments or posts in favour of the said class of citizens and, such a provision for reservation (or having the object of ensuring reservation), of the prescribed percentage of appointments or posts, can not be impugned on account of the manner in which it sought to achieve its object.
Commenting on the facts of the Devadasan case, Justice Subba Rao said that it was not disputed that Dalits and Adivasis qualified for being called backward class of citizens. Nor was it in doubt that they were inadequately represented in government services. Once these two conditions have been satisfied, the only question that remains (for judicial review) is to examine whether the provision (the carry forward rule) was for the reservation of appointments or posts for the said backward classes of citizens.57 He declared that: I find it difficult to say that the provision for ‘carry forward’ is not for the reservation of appointments for the said Castes and Tribes. The reservation of appointments can be made in different ways. It is not for this Court to prescribe the mode of reservation.
He then addressed the argument that since the right to equality under Article 16(1) is personal to every citizen, the question—whether that right stands infringed or not—has to be decided afresh, in the context of every process of selection in which provision for reservation is made. He noted that it was argued that in view of this interpretation
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of the right to equality a citizen cannot be deprived of his right on the ground that in a previous selection the community to which he belongs had more than its share of the appointments.58 Rejecting this contention (and all its cognate arguments), Justice Subba Rao declared that injustice to individuals is inherent in any scheme of reservations. Dealing with both generalists and reservationists as communities, he reminded that the object of reservations is to ensure that the prescribed percentage of posts in all services and cadres of public employment are occupied by persons belonging to the categories (communities) for which the reservation has been made. Calling the carry forward rule an administrative measure, to ensure the implementation of a declared policy, he rejected the rationale of impugning it as being destructive of the fundamental right to equality. To quote: As the posts reserved in the first year for the said Castes and Tribes were filled up by non-Scheduled Caste and non-Scheduled Tribe applicants, the result was that in the next selection the posts available to the latter were proportionately reduced. This provision certainly caused hardship to the individuals who applied for the second or the third selection, as the case may be, though the non-Scheduled Castes and non-Scheduled Tribes, taken as one unit, were benefited in the earlier selection or selections. This injustice to individuals, which is inherent in any scheme of reservation, cannot, in my view, make the provision for reservation any the less a provision for reservation.
In other words, Justice Subba Rao pointed out that the carry forward rule was founded upon a valid classification, having a rational (and reasonable) nexus with the object sought to be achieved. It was, therefore, liable to be upheld. Article 14 does not guarantee absolute equality but parity with those who are similarly situated. Since it is undeniable that Dalits and Adivasis are not at par with the generalists, Article 14 permits special provision to be made for them; in this case reservation of appointments and posts in public employment, via Article 16(4). The object of such reservations is to bring the backward classes, for whom the provision is made, at par with others. It was a matter of record that reservations were ineffective since sufficient numbers of qualified candidates from the communities, in whose favour this provision had been made, were not available for recruitment/appointment. Patently, if the state were to do nothing to remedy this situation then the reservations policy would be doomed to failure. The carry forward rule was, therefore, essential to give effect
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to the state’s policy of affirmative action by way of reservations in public employment and, hence, a valid exercise of legislative/executive power. Further, given that the rule was essential for preventing the failure of the State’s reservation policy it could not be called unreasonable by any stretch of imagination. Justice Subba Rao’s judgement was not dependant for validity upon specially constructed numerical examples, though he did illustrate his thesis through them.59 Discussing such examples, he declared that it was open to the State to choose the most convenient (or expedient) method of achieving the prescribed percentage of reserved category officials in a cadre or a service. If the policy of reservation was being honestly implemented, the only difference that this choice would make is in the number of years that it took to achieve that percentage of reservation. He declared that it was within the power of the state to adopt that method which took the shortest possible time to achieve the desired strength of reserved category officials in a cadre or service, that is, by reserving all the posts (or appointments) that fell vacant till the quota was completely filled.60 He added: Any one of the said provisions (methods), however reasonably framed, would inevitably cause hardship to some candidates from the non-Scheduled Castes and non-Scheduled Tribes in the sense that some of them would have been selected but for the reservation, but that could not be a ground for striking (the method) down.
Nor could such a provision (or method) be struck down as being destructive of the fundamental right to equality since that would stand violated only if the reservation exceeded the prescribed percentage of the entire cadre strength of the service in question. Justice Subba Rao also had a pithy but effective answer to the bogey of loss of efficiency. He said: If the provision deals with reservation—which I hold it does—I do not see how it will be bad because there will be some deterioration in the standard of service. It is inevitable in the nature of reservation that there will be lowering of standards to some extent; but on that account the provision cannot be said to be bad. Indeed, the State laid down the minimum qualifications and all the appointments were made from those who had the said qualifications. How far the efficiency of the administrations suffers by this provision is not for me to say, but it is for the State, which is certainly interested in the maintenance of standards of its administration.
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The Subba Rao judgement was also far more precise in its dissection of the Balaji decision, which loomed so large in the majority decision. He declared that ‘[i]f that decision decided to that effect, I would be bound by it’. Examining the reasons for which the Balaji decision had held against the order reserving 68 per cent seats in colleges for backward communities, he pointed out that: ... (t)he learned Judge traced the history of the order, considered all the relevant circumstances and held that reservation of 68 per centum in the circumstances of the case was a fraud on the constitutional power conferred on the State by Article 15(4) of the Constitution…therefore…the judgment…was based mainly upon two grounds, namely, the State had adopted a wrong criteria for ascertaining who were backward classes and also on the ground that the State committed a fraud on its constitutional power.61
If one were to identify a single factor as to why Justice Subba Rao did not fall into the usual error of decisions on reservations, it would be because he viewed the equality guarantee contained in Articles 14 and 16(1) as being guarantees of substantive equality only, without casting upon them the wholly unnecessary mantle of being formal equality statements also. The understanding displayed by Justice Subba Rao’s judgement was unique, evolving a new paradigm of equality in the context of reservations (or affirmative action). Unfortunately, it has remained singularly so in the annals of the Supreme Court’s rulings on the issue of affirmative action. Curiously, despite being forced to acknowledge the correctness of his views in the Devadasan case, in substance, the Supreme Court continues to commit the error of ignoring the fundamental premise of Justice Subba Rao’s opinion, even today. Before moving on, I will briefly examine the position of the Supreme Court with respect to the second issue listed above: namely, the issue of reservation in promotions.62 When meeting the eligibility requirement for initial recruitment was so difficult for Dalits and Adivasis, the issue of promotions could hardly be a matter of significance.63 However, this too has been an arena of considerable litigation. The initial position was that reservation was only permissible at the stage of recruitment. Thereafter, in the Rangachari case, the Supreme Court upheld the principle of reservations in promotion, holding that the expression ‘appointment’ used in Article 16 must be read to include appointment by direct recruitment or by promotion.64 However, even
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as it came down so significantly on the side of the reservationists, the Court helped the generalists to minimise the impact of reservation in promotion, by declaring that the ‘catch up rule’, which ensured that accelerated promotions for reservationists did not count towards seniority was necessary to prevent reverse discrimination. The catch up rule stipulated that generalists who were senior to the reservationists in the lower post (but were promoted later on, due to the slower pace of general category promotions) would regain their seniority vis-à-vis the reservationists when promoted to the higher post, in due course.65 The battle against acceptance of the principle of ‘consequential seniority’—the obverse side of the catch up rule—is still being fought by the generalists. This will be discussed below. To sum up, though reservation did redress the asymmetry for certain sections of the Dalits and Adivasis to some extent, instead of obliterating divides it concretised the negativity of the generalists towards reservationists. One of the many forms that the ire of the generalists took was their demand, that the creamy layer should be excluded from reservation benefits in the future. The Supreme Court’s decisions on the issue of reservations reflect the discomfort of the nation’s elite. Thus, even as it affirmed the principle of reservations, it failed to adopt a rational view on the issue in practice, falling prey to both, a wholly untenable notion of equality, and to the anxieties of the generalists, who wished to ensure that reservations were limited as far as possible. The Court’s failure is heightened by the fact that one among its collegium had formulated a unique thesis with respect to equality, in the context of reservations, which, if adopted, held the potential of ending all futile disputations of the issue. Even as the generalists were poised to take their fight against reservations to another level by challenging the right of the so called creamy layer among the reservationists to the benefits of reservation, the central government introduced reservation for OBCs in 1990, as distinct from those for the Dalits and the Adivasis.66 The introduction of reservation for OBCs reopened many aspects of the reservation debate that may otherwise have been considered to be closed, by virtue of the fact that the Supreme Court had delivered a definitive pronouncement on them. Thus, many important decisions on reservations have been passed by the Supreme Court since 1990. The first, and most important, of these decisions is the Indra Sawhney case (AIR 1993 SC 477), which was decided by a specially constituted
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bench of nine judges, to rule upon the constitutional validity of the Mandal Commission report, and the consequent implementation of reservations for OBCs on its basis. This case was decided in 1992. While most of us are aware of the furore that the implementation of the Mandal Commission report caused it is pertinent to note that with these reservations the generalists suddenly became a minority, and the reservationists became an overwhelming majority.67 This, metaphorically, turned the tables on the generalists, stripping them of a major justification for their battles against reservation, that is, that they represent majority interests. The implementation of the Mandal Commission report amounted to an acknowledgement that though formally the general category consisted of all persons who were not Dalits or Adivasis, in fact the overwhelming majority of the general category posts/vacancies were taken away by a minority of caste and class elites who had westernised education, and who, by virtue of them being the only persons eligible to fill most government posts for about 40 years, had established a network for the protection of their privileges. As was to be expected, these developments resulted in a significant sharpening of the focus in the battle against reservation. From challenges around the fringes of reservation, the carry forward rule, the catch up rule, the efficiency criterion, and other similar concepts became core issues of contestations. It became crucial to affirm reservations as an exception to the rule of equality and to limit them to some reasonable percentage of the total posts in a cadre and, the total vacancies in a particular process of selection. While the battles are not yet over the honours have been divided till date, with the generalists having a definite edge but also several open positions; making them vulnerable in the future. In the following sections I shall examine how the Supreme Court has dealt with reservation after the implementation of the Mandal Commission recommendations. This will be done with the aid of two decisions in the main, the case of Indra Sawhney and Others vs Union of India and Others (AIR 1993 SC 477), and the case of M. Nagaraj and Others vs Union of India and Others (2006 [8] SCC 212). From the perspective of reservations for Dalits, the M. Nagaraj case is more to the point but the Indra Sawhney case cannot be ignored since, as on date, it is the definitive statement of legal positions with respect to reservations, generally.68
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Though much of the Indra Sawhney case has no bearing on the present discussion that decision led to the introduction of four constitutional amendments, which are directly to the point. Article 16(4A) was inserted into the Constitution in June 1995, empowering the State to provide for reservation in promotion for Dalits and Adivasis (77th Amendment). Article 16(4B) was inserted in June 2000 (81st Amendment) empowering the State to close what was, perhaps, the most important loophole for defeating reservations, namely the practice of merging unfilled reserved quota posts of one year with the general pool posts of subsequent years. Article 335 was also amended in 2000 (82nd Amendment) to permit ‘relaxation in qualifying marks in any examination or lowering the standards of evaluation’, in connection with reservation for Dalits and Adivasis in promotions. Finally, Article 16(4A) was amended in 2001 (85th Amendment), with retrospective effect from June 1995, to empower the State to provide for ‘consequential seniority’, pursuant to accelerated promotion on the basis of reservation. The Nagaraj case, decided on 19 October 2006, is the most recent decision by the Supreme Court on the issues under discussion. It deals with the challenge to the constitutional validity of the four Constitutional Amendments mentioned above, illustrating several aspects of law, justice and social justice that are relevant to this essay. It also sheds light on the real world considerations that condition the mode and manner of implementing constitutional injunctions to affirmative action. In conjunction with the decision in the Indra Sawhney case, it also provides an overview of the manner in which the concept has evolved over the last few decades. I shall first summarise the relevant portions of the decision in the Indra Sawhney case, followed by an analysis of the Nagaraj decision. The Indra Sawhney Case Summarised69 The Indra Sawhney case was actually filed by the Supreme Court Bar Association, challenging the implementation of Mandal Commission recommendations.70 The case was initially heard by a Constitution Bench of five judges, who referred it to a specially constituted bench of nine judges to ‘finally settle the legal position relating to reservations (because)…the several judgments of this Court have
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not spoken in the same voice on this issue’. Although the case did not pertain to reservation for Dalits and Adivasis, the discussion covered almost the entire range of issues pertaining to reservations. Further, the decision of the Court, with respect to three key aspects, impinged directly on the reservation regime for Dalits and Adivasis then in place. The lawyers for the parties, appearing before the Court, in this case framed eight questions that the Court was expected to answer. In turn, the Court reframed these questions for the sake of convenient discussion and in the interest of clarity. Of these, the questions that are germane to the discussion here are: 2. (a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16? 3. (d) Whether the ‘means’ test can be applied in the course of identification of backward classes? And, if the answer is yes, whether providing such a test is obligatory?71 6. To what extent can the reservation be made? (a) Whether the 50 per cent rule enunciated in Balaji is a binding rule or only a rule of caution or rule of prudence?72 (b) Whether the 50 per cent rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16? (c) Further while applying 50 per cent rule, if any, whether a year should be taken as a unit or whether the total strength of the cadre should be looked to? (d) Whether Devadasan, was correctly decided?73 7. Whether Article 16 permits reservations being provided in the matter of promotions? 8. Whether reservations are anti-meritarian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16?74 9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?
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The Court answered the questions as follows: 2. (a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1) (Paragraphs 741–42). 3. (d) Creamy layer can be, and must be excluded (Paragraphs 790–93). 6. (a) and (b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent, except in extraordinary situations. While relaxing this rule, extreme caution is to be exercised and a special case made out (Paragraphs 804–13). 6. (c) The rule of 50 per cent should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be (Paragraph 814). 6. (d) Devadasan was wrongly decided and is accordingly overruled to the extent it is inconsistent with this judgment (Paragraphs 815–18). 7. Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective operation and shall not affect the promotions already made. Further, wherever reservations are already provided in the matter of promotion—be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of ‘State’ in Article 12—such reservations shall be permitted to continue in operation for a period of five years from the date of passing of the judgement (16.11.1992). The ‘appropriate authorities’ may ‘revise, modify or re-issue’ the relevant rules within this period, to ensure that the ‘objective’ of Article 16(4) is achieved. Further, if any authority thinks that for ensuring adequate representation of ‘backward class of citizens’ in any service, it is necessary to provide for direct recruitment therein, it shall be open for it to do so. Lastly, it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion, without compromising the efficiency of the administration. (Paragraphs 819–31)
8. While the rule of reservation cannot be called anti-meritarian, there are certain services and posts to which it may not be advisable to apply the rule of reservation (Paragraphs 832–41). 9. There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4) (Paragraph 842).
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The Nagaraj Case Analysed In the Nagaraj case, the Supreme Court was asked to strike down the 77th, 81st, 82nd and 85th Amendments to the Constitution (adding Clauses 4A and 4B to Article 16 and adding a proviso to Article 335) which, it was claimed, had undone the fundamental principle of equality enshrined in Articles 14 and 16 and were, therefore, destructive of the basic structure of the Constitution. It was argued that the basis for impugned amendments was to overrule judicial decisions based on a holistic interpretation of the Constitution and its basic values, concepts and structure. Finally, it was argued that Clauses 4A and 4B of Article 16 ought to be struck down as violating the fundamental principles of equality, justice, rule of law and secularism. It was also argued that ‘the impugned amendments opened the floodgates of disunity, disharmony and disintegration’.75 The judgement in the case was delivered by Justice S.H. Kapadia. His discussion of the issues raised by the parties was structured around the following topics, which are listed, in the order in which they appear in the judgement. 1. Standards of judicial review of constitutional amendments. 2. Is equality a part of the fundamental features or the basic structure of the Constitution? The test for determining whether a particular feature of the Constitution is a part of its basic structure. 3. Justice, social, economic and political is provided not only in Part IV (Directive Principles) but also in Part III (Fundamental Rights). 4. Equity, Justice and Merit. 5. Reservation and Affirmative Action. 6. Maximum limit of reservations possible. 7. Catch up rule is the said rule a constitutional requirement under Article 16(4). 8. Scope of the impugned amendments. 9. Whether the impugned constitutional amendments violate the principle of basic structure. The first topic arose out of a question posed by the Court to itself. Topic numbers 2, 3, 8 and 9 pertain to the validity and the interpretation of the impugned Constitutional Amendments. The challenge in this
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regard was primarily based upon an attempt to differentiate between equality and affirmative action. Topic number 4 pertains to the impact of the said amendments on the balance between equity, justice and merit (or efficiency), established by the Supreme Court in its previous decisions. The discussion, in this regard, debated the maximum extent of reservations permissible, the validity of the carry forward and the catch up rules, the extent to which the efficiency criterion operates as a restriction upon the power to make reservations, etc. The remaining two topics explain themselves. For convenience of analysis, the topics can be recast and grouped into the following questions. 1. What is the basic structure of the Constitution and what is the test for determining whether a particular feature of the Constitution is a part of its basic structure? 2. What is the standard of judicial review in matters pertaining to constitutional amendments? 3. Is there a dichotomy between equality and affirmative action under the Constitution? 4. What is the scope of the impugned amendments and, do they violate the basic structure of the Constitution? 5. In what manner are Equity, Justice and Merit to be balanced? That is— 6. How are the notions of reservations and affirmative action to be defined in the context of equality? 7. What is the maximum limit of reservations permissible under the law? 8. Is the catch up rule (and its obverse, the consequential seniority rule) a constitutional requirement under Article 16(4)? The core issue was whether (or not) the impugned amendments violated the basic structure of the Constitution.76 If the answer was yes, then they were liable to be struck down. If no, then they would be upheld, as an instance of permissible affirmative action.77 As a first step the Court re-asserted its own role as the final arbiter of the correctness of legislative and executive action, holding that judicial review is a vital component of rule of law and, therefore, part of the basic structure of the Constitution. It went on to state that a constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms, to which all persons in the state are
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to be entitled, must be given a generous and purposive construction, which anticipates and takes account of changing conditions and purposes.78 It added that not all fundamental rights are spelt out in the Fundamental Rights chapter. To illustrate, it gave the example of the freedom of information, which has been held to be implicit in the guarantee of freedom of speech and expression.79 Tracing the evolution of the ‘doctrine of basic structure’ to the German Constitution, the Court asserted that the concept gives coherence and durability to a Constitution. It said that recognising that the Constitution has a basic structure tantamounts to saying that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution, which give it a distinct identity.80 These principles are part of constitutional law, even if they are not expressly stated in the form of rules.81 It went on to say that ‘some of these principles may be so important and fundamental, as to qualify as “essential features” or part of the “basic structure” of the Constitution, that is to say, they are not open to amendment’.82 Thus, the Court said that in order to qualify as an essential feature, a principle must first be established as part of the constitutional law and, as such, binding on the legislature. Next, the Court must examine whether the principle is so fundamental as to bind even the amending power of the Parliament; that is, forms part of the basic structure of the Constitution.83 Moving on to defining a ‘standard of judicial review of constitutional amendments in the context of the doctrine of basic structure,’ the Court said that in the Keshavananda Bharati case, it had held that one cannot ‘legally use the constitution to destroy itself ’. Thus, the word ‘amendment’ must postulate change without loss of identity. In other words, the theory of constitutional identity is rooted in the possibility of change with continuity. It declared that while ‘[f]idelity to the text qua fundamental principles (does) not limit judicial decision-making, if the change is destructive of the identity of the Constitution, it abrogates its basic structure’. The first claim of the petitioners in the Nagaraj case was that Articles 14, 15(1) and 16(1), constituted the equality code, which was a basic feature of the Constitution, while Articles 16(4), (4A), (4B) and the proviso to Article 335, called the affirmative action provisions, were in the nature of an exception to the equality code or, ‘an enabling power which is not coupled with a duty,’ and hence, not to be treated
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as a fundamental right on par with the right to equality.84 In other words, they argued, the ‘individual right’ guaranteed by Article 16(1), cannot be equated with the group expectation contained in Article 16(4). The former is directly enforceable, while the latter is merely an instance of the classification implicit and permitted by the former.85 Thus, they contended that ‘equality in employment’ consists of equality of opportunity (Article 16[1]), anti-discrimination (Article 16[2]), special classification (Article 16[3]) and affirmative action (Article 16[4]) and it does not obliterate equality but stands for classification within equality, and with efficiency (Article 335). Arguing further in the same vein, they contended that social justice is mentioned only in Article 38, which is part of the Directive Principles, which are not enforceable. As such, the State cannot be permitted to violate the equality principle for the sake of social justice.86 On the other hand, the State argued that amendments for giving effect to the Directive Principles cannot offend the basic structure of the Constitution, even if they abrogate (or restrict) individual rights. In other words, provisions that promote the constitutional ideal of justice—social, economic and political—and the ideal of equality of status cannot violate the basic structure of the Constitution, and can therefore not be struck down.87 It was also argued that the principle of the balancing of rights of the general category and reserved category in the context of Article 16 cannot be called a basic feature of the Constitution.88 It also argued that neither the right to consideration for promotion nor the jurisprudence relating to public services form part of the basic features of the Constitution.89 It submitted that basic features of the Constitution consist of axioms like constitutional supremacy, democratic form of government, secularism, separation of powers, etc., and are not to be construed as being embodied in any one (or more) article of the Constitution. The arguments by the petitioners listed above give rise to an important question, the answer to which requires a little digression. The question is, despite the Indra Sawhney case having ‘settled the issue once and for all’ by holding that Article 16(4) was ‘not an exception’ to Article 16(1), what emboldened the petitioners in the Nagaraj case to once again argue that Articles 14, 15(1) and 16(1) constituted the equality code, which was a basic feature of the Constitution, while the affirmative action provisions of Articles 16(4), (4A), (4B) and the proviso to Article 335 were an exception to it and, hence, not to be treated on par with the right to equality?90
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For clarity on this issue, it is necessary to trace the path by which Article 16(4) gained parity of status with Article 16(1), starting from the majority position in the Devadasan case, which held to the contrary. The parity, essentially a validation of the Subba Rao position—the minority judgement in the Devadasan case—was first adopted by the Court in the N.M. Thomas case, in which it held that ‘equality under Article 16 could not have a different content from equality under Article 14’.91 Thus, the Court held, if Article 14 permits classification having a rational nexus to the object of the legislation, so must Article 16(1) be held to permit it. By this interpretation, Article 16(4) was enabled to become ‘an instance of the classification implicit in and permitted by Article 16(1)’.92 The Indra Sawhney decision accepted the decision in the Thomas case, holding that: In our respectful opinion, the view taken by the majority in Thomas is the correct one…. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy…. Accordingly, we hold that clause (4) of Article 16 is not an exception to clause (1) of Article 16…. It is a provision which must be read along with and in harmony with clause (1).93
However, in both these cases (N.M. Thomas and Indra Sawhney) the Court continued to be reluctant to view the equality principle—in the context of reservations—as involving communities on both sides, rather than individuals on one and communities on the other. It was, therefore, compelled to resort to the rather more cumbersome route of reinterpreting the whole of Article 16 as a facet of Article 14 to arrive at the Subba Rao position.94 Further, its refusal to fully embrace the Subba Rao position in the Devadasan case led to the error of the majority position in the Devadasan case being reiterated in the Ajit Singh and Others (II) vs State of Punjab and Others (AIR 1999 SC 3471) case, even though it was decided in 1999, several years after the decision in the Indra Sawhney case had ostensibly settled the issue once and for all. In the Ajit Singh case the Court again reverted back to the position of the majority in the Devadasan case, albeit with some modifications, since it could not entirely ignore the stand of the Court in the Indra Sawhney case, which had overruled the majority decision in the Devadasan case.
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In the Devadasan case the majority of the Court was stampeded into postulating an erroneous view of the relationship between equality and affirmative action under the Constitution because of the carry forward rule, which threatened the generalists’ domination of the annual recruitment of persons to government jobs. In the Ajit Singh case, the Court was similarly stampeded by the catch up rule (or the rule of consequential seniority), to commit an almost identical error. Three factors can be said to have played a role in nudging the Court into the direction of this error: (a) the failure to adhere to the communitarian principle propounded by Justice Subba Rao, (b) the fact that Indra Sawhney had declared that reservation was not permissible in promotions (‘consequential seniority’ is an aspect of that reservation), and (c) the fear (of the generalists) that grant of consequential seniority to reservationists would result in their swamping the higher echelons of the services, though, essentially, the error can be attributed to the first factor.95 In other words, the majority decision in the Devadasan case and the Ajit Singh decision are proof of the vital importance of not only affirming the parity of status between Article 16(4) and Articles 14 and 16(1) but also of affirming the logic by which it was arrived at by Justice Subba Rao in his minority judgement in the Devadasan case. Thus, it was the reversal of the parity position in the Ajit Singh case—adopted in the N.M. Thomas and the Indra Sawhney cases— that permitted the petitioners in the Nagaraj case to once again argue that Article 16(4), and consequently, Articles 16(4A), 16(4B) and, the proviso to Article 335 must be seen as being exceptions to the rule of equality. In the Nagaraj case, the Court sought to retrace at least some of the ground back to the parity position enunciated in the N.M. Thomas and the Indra Sawhney cases. However, as is evident from the succeeding paragraphs, the Court’s position remained mired in the confusion of the individual rights versus community rights equation. The Court, once again, shied away from the Subba Rao logic, even though it was careful not to fall into the trap created by the Ajit Singh decision. It is reasonable to assume that the Court rerevised the interpretation of the status of Article 16(4) vis-à-vis Article 16(1) in the Nagaraj case because it realised that a de jure restriction of affirmative action as an exception to the equality principle, which was patently the path on which the Court had been moving was not tenable in the changed social and political climate of the country.
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The Nagaraj Court affirmed equality as a part of the basic structure of the Constitution but cautioned against confusing formal equality with egalitarian equality.96 The Court acknowledged that it had earlier read Article 16(4) as an exception to Article 16(1) but asserted that this position had been revised in the Indra Sawhney case, where it came to the conclusion that the expression ‘nothing in this Article’97 in Article 16(4) converted it into a provision dealing with ‘a class apart’. In other words, the Court said, Article 16(4) enables the state to provide for reservation wherever there exist ‘compelling reasons’, namely backwardness of a class and inadequacy of representation in employment. Since these compelling reasons do not exist in Article 16(1), the two clauses, Article 16(1) and Article 16(4), must be harmonised.98 The Nagaraj decision also avoided a polarisation between Fundamental Rights and Directive Principles by declaring that though social, political and economic justice are explicitly mentioned only in Article 38 (which lies in Part IV, The Directive Principles) they cannot be restricted to that provision (or that part) alone. Articles 14, 17 and 25 (all contained in Part III, The Fundamental Rights) were mentioned as vital components of any conception of social justice.99 Further, accepting the contention of the State with respect to the nature of service jurisprudence, it held that principles and practices emanating from it cannot be elevated to the level of basic features of the Constitution.100 While the fact that the Nagaraj Court reiterated that equality and affirmative action stand on an equal footing may be said to symbolise the distance that the nation has travelled on the road to social justice, the convoluted logic that it continues to choose to attain this parity is equally symbolic of the crisis that the quest for social justice throws the nation’s polity into each time it is asked to affirm its commitment to this goal.101 That the Court has a share in this crisis is reflected in its reluctance to make the nation adhere to its commitment to social justice for Dalits. A brief sequence of decisions from the parity perspective is useful for summarising the agony.102 z
In the Devadasan case, the Court (majority decision) asserted the supremacy of individual equality over the promise of affirmative action, in the face of a patently correct, rational and logical exposition to the contrary by one of its own.
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In the N.M. Thomas case and in the Indra Sawhney case, the Court corrected itself to place affirmative action at par with equality, but failed to adopt the full parity position enunciated by Justice Subba Rao in the Devadasan case. In the case Union of India and Others vs Virpal Singh Chauhan and Others (AIR 1996 SC 448), the Court stopped short of asserting that the catch up rule was implicit in a harmonious reading of Clauses (1) to (4) of Article 16, which would have tantamounted to reverting back to the majority position in the Devadasan case but it declared that since the relevant ‘service rules’ affirmed the catch up rule they could (and must) be followed, without raising the spectre of unconstitutionality.103 In other words, though the Court adhered to the parity of Articles 16(1) and 16(4) as affirmed in the Indra Sawhney case it simultaneously held that there was nothing unconstitutional in the service rules that, in effect, prescribed the earlier position, that is, the one enunciated in the Devadasan case.104 In the Ajit Singh cases105 the Court was once again confronted with the catch up rule. Here it went a step further and, virtually reversing the interpretation adopted in the N.M. Thomas and the Indra Sawhney cases, declared that Article 16(1) deals with a Fundamental Right, whereas Articles 16(4) and 16(4A) are only enabling provisions. Therefore, the Court held, in matters relating to affirmative action by the State the rights under Articles 14 and 16 are required to be protected and a reasonable balance should be struck; so that the affirmative action by the State does not lead to reverse discrimination.106 In the M.G. Badappanavar and Another vs State of Karnataka and Others (AIR 2001 SC 260) case the Court went even further. It declared that any treatment of equals as unequals or any treatment of unequals as equals would violate the basic structure of the Constitution. Classifying persons promoted on the basis of a policy of ‘reservation in promotions’ (or, as the Court called them, roster-point promotees), as being distinct from backward classes in general, the Court held that ‘if the creamy layer among backward classes were given the same benefits as backward classes, it will amount to equals being treated as unequals’.107 In formulating this proposition, the Court placed reliance on the Indra Sawhney judgement, in which it had held that the creamy
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layer must be excluded. Applying the creamy layer test, the Court declared that if roster-point promotees are given consequential seniority it will violate the equality principle, which is part of the basic structure of the Constitution, in which event, it said, ‘even Article 16(4A) cannot be of any help to the reserved category candidates’.108 In the Nagaraj case the Court, did a little bit of an about turn and again declared parity between Article 16(1) and 16(4). Further, it held that the catch up rule and its obverse, the consequential seniority rule, are judicially evolved concepts to control the extent of reservation, sourced in service jurisprudence. They cannot be elevated to the status of basic structure axioms like secularism, constitutional sovereignty, etc. Thus, the insertion of the concept of consequential seniority (the obverse of the catch up rule) into Article 16 (by way of Article 16[4A]) cannot be termed destructive of the structure of Article 16(1). Nor can it be said that the ‘equality code’, comprised in Article 14, 15 and 16 is violated by a deletion of the catch up rule. It declared that such concepts are based on practices, which ‘cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament’.
The fourth question pertains to the scope of the impugned amendments, and whether they violate the basic structure of the Constitution. The discussion on the scope was confined to the ‘Objects and Reasons’ attached to each of the four amendments with some context being provided by reference to the changes introduced by successive judgements of the Court, starting with the Indra Sawhney case. While discussing the scope the Court indicated the trend of its thinking, though it did not fully articulate the reasoning on the basis of which it would eventually uphold these amendments. Pointing out that the Indra Sawhney decision had reversed a long standing position by holding that Article 16(4) did not permit reservation in promotions, the Court noted that the ‘Statement of Objects and Reasons’ attached to the 77th Amendment expressed the concern of the government at the adverse effect of this reversal upon the interests of the Dalits and Adivasis in government services, who had not reached the required level.109 Therefore, it said, ‘the government felt that it was necessary to continue the existing policy of providing
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reservation in promotion confined to SCs and STs alone,’ by inserting Article 16(4A) into the Constitution. Thereafter, noting that Article 16(4A) is carved out of Article 16(4), and follows the pattern specified in that provision (as well as in Article 16[3]), the Court declared the said Article to be an instance of permissible classification, and hence, not in violation of the basic structure of the Constitution. It said that while Article 16(4A) gives the appropriate governments the freedom to provide for reservation in matters of promotion to Dalits and Adivasis it continues to be governed by the two compelling reasons of backwardness and inadequacy of representation, as prescribed in Article 16(4), and by the requirement of overall efficiency of the system, as required by Article 335. Reservation made in disregard of these three factors would be illegal, it said. The Court then examined the 85th Amendment, which further amended Article 16(4A), to include the power to grant consequential seniority to Dalits and Adivasis, along with promotion. It stated that this Amendment was necessitated by the decision in the Virpal Singh Chauhan case and the Ajit Singh case, in which the Court had upheld the denial of consequential seniority by holding that it amounted to conferring an additional benefit upon the reservationists. Thus, the Court said that Clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given, in addition to accelerated promotion to the roster-point promotees. ‘Suffice it to state (it said) that, the Constitution (85thAmendment) Act, 2001 was an extension of Clause (4A) of Article 16. Therefore, the Constitution (77th Amendment) Act, 1995 has to be read with the Constitution (85th) Act, 2001.’110 Then the Nagaraj Court moved on to discuss the 81st Amendment, introducing Article 16(4B) into the Constitution. The starting point for the Court’s task of upholding Article 16(4B), even though it negated the rule laid down in Indra Sawhney, was suggested by the Indra Sawhney decision itself. As has been mentioned in the summary of that decision above, the Indra Sawhney case held that the creamy layer (among the reservationists) can and must be excluded from the benefits of reservations.111 In the course of its discussion on this point, the Court stated that there is no constitutional or legal bar on a state, categorising the backward classes as backward and more backward.112 Further, in Paragraph 803, the Court pointed out, ‘if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together,
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OBCs will take away all the vacancies, leaving Scheduled Castes and Scheduled Tribes high and dry’. In other words, the Indra Sawhney Court said that when sub-classification was considered necessary to differentiate between the more backward among the larger category of reservationists, that is, between the Dalits and Adivasis on the one hand, and OBCs on the other, there was no reason why the same principle should not be adopted to (a) differentiate between the more and less backwards among the OBCs and (b) identify the creamy layer among the reservationists, so as to channelise the benefit of reservations to those who really need it.113 The Nagaraj Court then noted that the Statement of Objects and Reasons attached to the 81st Amendment Act stated that, the bar in the Indra Sawhney decision upon reservations beyond 50 per cent of the total number of vacancies in a given year, including backlog vacancies, made it difficult to fill backlog vacancies.114 As such, it became necessary to insert Article 16(4B), excluding carry forward/ unfilled vacancies of a year from the overall ceiling-limit of 50 per cent reservation. Indicating the line of its thinking in this regard, the Court then referred to its decision in the R.K. Sabharwal case (infra), which had held that vacancies should be filled strictly in accordance with the roster, that is, each vacancy should be filled by appointing a person from the category to which that post had been assigned, under the roster prepared for that service or cadre. Thus, the Court said: once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate…and any subsequent vacancy has to be filled by that category candidate alone, then the question of clubbing the unfilled vacancies with current vacancies does not arise.115
Therefore, it declared, ‘The 81st Amendment, in substance, confers legislative assent to the judgement of this Court in R.K. Sabharwal case.’116 Finally, taking recourse to the reasoning employed by Justice Subba Rao in the Devadasan case, the Nagaraj Court sought to justify the insertion of Article 16(4B) by declaring that: …if it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter.117
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While seemingly leaning in favour of reservations, the statement above is actually meaningless. This becomes clear from the subsequent comments. The Court declared that while Article 16(4B) freed the State from the constraint of the 50 per cent limit on reservations in annual vacancies (by permitting the creation of a separate category of carry forward vacancies, all of which would be reserved), it was still required to keep the requirement of efficiency in administration, imposed by Article 335, in mind. Thus, the Court said, keeping posts ‘vacant for years…would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation.’118 In other words, the Court declared that reserved posts that remained unfilled for more than a reasonable number of years would have to be de-reserved, enabling them to be filled by general category candidates, in order to satisfy the requirement of efficiency of administration. Given the history of the manner in which the carry forward rule had worked it was patent that the Court’s sanction for the insertion of Article 16(4B) would remain a mere lip service to the problem of unfilled vacancies, unless the State took steps to ensure that sufficient number of reserved category candidates are helped to attain the minimum eligibility requirements prescribed for the vacancies carried over.119 This anxiety to minimise the significance of the issue of carry forward vacancies is evidence of the fact that such vacancies continued to loom large on the reservations horizon: proof, if any was needed, that reservations were not working in the manner that they ought to. Further proof was also available to the Court by way of the respective statements of objects and reasons attached to the four impugned amendments, which were nothing less than an admission by the State of the pathetic situation at the ground level. The Court’s failure to look at this aspect of the matter must be deemed a refusal. Given the considerable anxiety that the Court has always shown, to balance the equities in favour of the generalists, this indifference is telling of its actual keenness to ensure justice for the reservationists. Since malafides cannot be attributed to the Supreme Court it is reiterated that it falls into this error (and remains there) primarily because of its refusal to take a correct view of the equality statement contained in the Constitution, in the context of reservations.120 The Court also briefly discussed the 82nd Amendment, inserting a proviso to Article 335. In this context it referred to its decision in
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the S. Vinod Kumar and Another v Union of India (1996 [6] SCC 580) case, wherein it had held that ‘relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution’, and noted that this was also the view in Indra Sawhney. Calling the proviso to Article 335, ‘compatible with the scheme of Article 16(4A)’, the Court said that the two decisions mentioned above necessitated the introduction of the said proviso, along with the introduction of Article 16(4A), providing for reservation in promotion for Dalits and Adivasis. In other words, if the sub-classification enabling reservation in promotion for Dalits and Adivasis is valid, then it is also permissible to provide that the said category be given relaxation in matters of eligibility for such promotion. The question whether the impugned amendments violate the basic structure, or not, has two parts. The first part is linked to the ‘parity’ issue and the Court’s answer has been discussed above. The second part of the question was based on the allegation that the amendments had been introduced in order to nullify the Supreme Court’s decisions, which, ipso facto, are part of the basic structure of the Constitution. It was thus argued that the fact that the impugned amendments were so aimed was, by itself, sufficient to vitiate the amendments, and make them liable to be struck down.121 More specifically, the petitioners urged that the 77th Amendment, introducing Article 16(4A), permitting reservation in promotion for Scheduled Castes and Tribes, had the effect of nullifying the decision in the case of Indra Sawhney, in which it had held that reservations must be restricted to the initial stage of recruitment only; that, the 85th Amendment, adding the words ‘with consequential seniority’ in Article 16(4A) had been made to nullify the decision in the case known as Ajit Singh II;122 that the 81st Amendment, permitting the State to separate carry forward vacancies and fill them, notwithstanding the 50 per cent limit on reservations in annual vacancies, violated the decision in the Indra Sawhney case; and that the 82nd Amendment, relaxing the ‘efficiency criterion’ contained in Article 335, by incorporating a proviso to the Article, had been introduced to nullify the effect of the decision in the Indra Sawhney case and a host of other cases that emphasise the importance of maintaining efficiency in administration. The Court’s answer to this part of the challenge (that the impugned amendments have been introduced to nullify the Supreme Court’s
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decisions and, are therefore, bad) was two pronged. It first discussed the individual issues named above; that is, reservation in promotion, the 50 per cent limit on all reservations, and the efficiency criterion. Its answer on these issues was then dovetailed with an overall answer to the challenge, which was evolved with the aid of the ‘classification rule’. The discussion on the individual issues can be covered under the rubric, ‘balance’; or, as the Court posed it, balance between justice, equity and merit. The Court concluded that these issues were not basic features of the Constitution and, hence, could not be said to be beyond the amending power of the Parliament. Thereafter, with the aid of the classification rule, the Court not only declared the impugned amendments to be consistent with the overall scheme of Article 16(4) and, hence, with the basic structure of the Constitution, but also managed to arrive at the conclusion that the said amendments gave legislative sanction to the various decisions delivered by it. Thus, from both perspectives, the Court declared the impugned amendments to be valid. Before discussing the manner in which the Court dealt with the individual issues, it is useful to note the State’s response to the arguments in this regard by the petitioners. The State contended that it did nothing wrong in bringing in the amendments in question because once the Supreme Court has interpreted a constitutional provision that interpretation becomes part of the Constitution (gets in-built in the provisions) and is, therefore, open to Amendment under Article 368.123 In other words, a Constitutional Amendment cannot be said to violate the basic structure of the Constitution, or amount to usurpation of judicial power, merely for the reason that it changes a position enunciated by the Supreme Court in a previous judgement.124 It is in this manner, the State urged, that the Constitution becomes a living document, with both the legislature and the judiciary contributing to the changes of law, with the final say regarding the validity of the changes reposed in the judiciary. In other words, the State contended, every interpretation of the Constitution by the Court does not become a basic feature of the Constitution but on each occasion the Court is required to examine the actions of the legislature to determine whether they violate the basic structure. Thus, the State argued, there are no implied limitations on the power of the Parliament to amend the Constitution but an amendment would be invalid if it interferes with or undermines the basic
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structure. Finally, neatly turning the Court’s position in the Ajit Singh II case (supra) to its own advantage, the State contended that Articles 16(4A) and 16(4B) only being enabling provisions it was not permissible to test their constitutionality with reference to the exercise of the power (or manner of exercise of such power).125 The Court accepted almost all the contentions advanced by the State, though not precisely in the manner in which the State had presented them. First, the Nagaraj Court examined the issue of grant of reservation in promotion, and consequential seniority, to Dalits and Adivasis.126 The Indra Sawhney decision had reversed a long standing position, by holding that Article 16(4) did not permit reservation in promotion. The reversal was ordered with prospective effect, and the Court allowed the existing schemes for such reservation to continue for five years from the date of its judgement. It also permitted the respective governments liberty to appropriately revise, modify or re-issue the relevant rules, to ensure the achievement of the objective of Article 16(4).127 In other words, even as it declared that Article 16(4) did not permit reservation in promotion the Indra Sawhney Court recognised that such reservation did, in fact, fulfil a real need, which would have to be met by some other method. Whether this was that Court’s way of ‘preserving the balance’ or merely recognition of the imperatives of real politics, it is not possible to say. However, there seems to be little doubt that subsequent decisions on the related issues of the catch up consequential seniority rule were influenced by the Indra Sawhney decision, barring reservation in promotion. The gist of some of the important subsequent decisions is given below. z
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In the Virpal Singh Chauhan case, the Court declared that it was for the government to decide the terms, mode and manner of granting promotions and, therefore, held the catch up rule to be constitutionally valid. However, it also held that the catch up rule was not implicit in any part of Article 16 and, hence, cannot be called a basic feature of the Constitution. In the decision known as Ajit Singh II, however, the Court ruled that if the catch up rule is not applied then the equality principle embodied in Article 16(1) would stand violated.128 In other words, the Court declared it to be a part of the equality principle, which was a basic feature of the Constitution.
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In the Jagdish Lal case, another bench of three judges held that the right to promotion was a statutory right, while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights and, therefore, the latter were entitled to the benefit of continuous officiating (or consequential seniority). Thus, this case declared in favour of the reservationists, while the two previously mentioned cases had held in favour of the generalists. The conflict of decisions was resolved in the case known as Ajit Singh II. Overruling the Jagdish Lal case, the Court declared that Article 16(1) deals with a Fundamental Right whereas, Articles 16(4) and 16(4A) are only enabling provisions and, therefore, the interests of the reserved classes must be balanced against the interests of other segments of society. It emphasised that ‘in matters relating to affirmative action by the State, the rights (of the generalists) under Articles 14 and 16 are required to be protected and a reasonable balance should be struck, so that the affirmative action by the State does not lead to reverse discrimination’. In the M.G. Badappanavar case, relying upon its decisions in the Ajit Singh I case and the Virpal Singh Chauhan case, the Court held that quotas in promotion (roster promotions) did not confer consequential seniority upon the promotee. Further, relying upon the Indra Sawhney decision, the Court held that treating the creamy layer among the backward classes at par with the rest of the backward classes would amount to unequals being treated as equals, violating the equality principle, which was a basic feature of the Constitution. In such event, the Court said, even Article 16(4A) cannot be of any help.
The slant of the post Indra Sawhney Court against consequential seniority and in favour of the catch up rule is patent. However, as mentioned above, the Nagaraj Court declared that: …[r]eading the above judgements, we are of the view that the concept of ‘catch up’ rule and ‘consequential seniority’ are judicially evolved concepts to control the extent of reservation…. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty, etc. It cannot be said that
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by insertion of the concept of ‘consequential seniority’, the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ‘equality code’ under Articles 14, 15 and 16 is violated by deletion of the ‘catch up’ rule…such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament…. Therefore…neither the ‘catch up’ rule nor the concept of ‘consequential seniority’ are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan.
Accordingly, distinguishing the contrary judgements listed above, the Nagaraj Court held that Article 16(4A) could not be deemed to be unconstitutional merely because it amended the existing position with respect to the ‘consequential seniority’ rule, which, as stated, is the obverse of the catch up rule. In a display of opaque (and obscure) reasoning the Nagaraj decision went on to say that the Badappanavar decision ‘is the only judgement of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution’. In a slightly more pertinent remark, the Court also noted, ‘In none of the cases cited (above) was the question of the validity of constitutional amendments involved.’ As stated, the Court relied upon the Virpal Singh Chauhan decision for support for its stance, which was delivered by a two-judge bench. The Nagaraj Court, being a constitution bench, was not bound to strictly follow the rule of binding precedent. However, the fact that it mentioned the Badappanavar decision as being rendered by a bench of three judges is indicative of the importance of precedent in its scheme of things. Why then did it prefer the reasoning of the Virpal Singh Chauhan case? The answer lies in the realm of politics, not law, notwithstanding that an elaborate legal justification must also exist for this choice. The next issue that the Court discussed was much more problematic. The Court’s peregrinations in resolving this issue are therefore worth reproducing in greater detail. The first step is to briefly trace the roots of the numerical limit doctrine, as listed by the Court. 1. In the Rangachari case129 the Court said that reservation under Article 16(4) is intended to give adequate representation to backward communities and cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees.
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2. In the Balaji case130 the Court held that 60 per cent reservation under Article 15(4) was excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case. 3. The Devadasan case (majority) held that what was true under Article 15(4) was equally true for Article 16(4). 4. In the N.M. Thomas case,131 Justice Krishna Iyer said that though reservation cannot be so excessive as to destroy the principle of equality of opportunity under Article 16(1), the Constitution does not put any limits in this regard. If 80 per cent of the population of a province is backward then it would be meaningless to say that reservation should not cross 50 per cent. 5. However, in the Indra Sawhney case the majority held that the rule of 50 per cent laid down in the Balaji case was a binding rule and not a mere rule of prudence. Delivering the Court’s judgement Justice Reddy stated, ‘Article 16(4) speaks of adequate representation not proportionate representation, although, the proportion of population of backward classes to the total population would certainly be relevant.’132 He declared that the 50 per cent cap on reservations would be applicable to the total number of vacancies in each year. He held this to be necessary on the basis of the same dichotomy, between the individual right to equality under Article 16(1) versus the interests of certain sections of society, protected by Article 16(4), which has been the hallmark of the Court’s position with respect to reservations.133 Both provisions, he said, need to be harmonised because they are restatements of the principle of equality under Article 14. Thus, the Nagaraj Court was faced with the task of justifying its decision to uphold the 81st Amendment, inserting Article 16(4B), which excluded carry forward vacancies from the ceiling imposed by the Court, in the face of a categorical position to the contrary expressed by the Indra Sawhney decision, which was binding on it since it had been rendered by a larger bench.134 In other words, the Court was required to disagree with the Indra Sawhney decision without appearing to disagree with it. This delicate task is called ‘distinguishing’ a decision or, to be more precise, distinguishing the ‘ratio’ of a decision. This is generally done by either declaring that the facts of the previous
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decision were so different that its ratio (which is that part of the judgement which is applicable de hors the facts) was inapplicable to the facts of the case under consideration or, simply, by holding that the ratio of the previous case was inapplicable to the issues (comprising the facts in the framework of the law/s in question) of the current one. In the Nagaraj case, however, the Court did not adopt either of these methods. Instead, it shifted the focus of the issue from the numerical limit requirement to the right of the legislature to classify, in order to meet rational and reasonable objectives, via its judgement in the R.K. Sabharwal and Others v State of Punjab and Others (AIR 1995 SC 1371) case. Simultaneously, as with the consequential seniority rule discussed above, the Court returned a finding that the carry forward rule was not a basic feature of the Constitution. The first step to understanding the semantics involved is to briefly examine the stand of the Indra Sawhney decision in this regard. A reading of the portion of Justice Reddy’s judgement in the Indra Sawhney case where he has dealt with this issue makes it clear that the 50 per cent limit was envisaged as being applicable to the totality of reservations. In other words, he looked at all possibilities, including the operation of the carry forward rule, while holding that reservations should never exceed 50 per cent of the total vacancies in a year. While doing so he specifically considered the possibility that the representation of Backward Classes, including Dalits and Adivasis, in a service was woefully below the required strength. He declared that even in such circumstance it was not permissible to reserve more than a reasonable maximum, which he set at 50 per cent of vacancies. The only exception to the 50 per cent rule that he said would be acceptable was: … [where there existed] certain extraordinary situations inherent in the great diversity of this country and the people … in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical (sic) to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.
To make it even more abundantly clear that 50 per cent was an absolute limit, Justice Reddy also examined the striking down of the carry forward rule by the Devadasan Court and declared that decision
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to be incorrect. Countering the numerical example used by the Devadasan Court to strike down the carry forward rule, Justice Reddy constructed a numerical example of his own to show how the striking down of the whole rule—rather than just the particular instance in which it had operated unjustly—had itself resulted in injustice. His example showed that the carry forward rule need not always result in excessive (more than 50 per cent) reservation. Justice Reddy also deprecated the practice of constructing numerical examples, relying upon the views of Justice Krishna Iyer in the Akhil Bharatiya Shoshit Karamchari Sangh vs Union of India (AIR 1981 SC 298) case, in which he said that ‘mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced’. Justice Reddy expressed respectful agreement with this view. However, he was not averse to constructing (and using) numerical examples of his own, to startle without justification.135 Thus, while declaring the 50 per cent maximum limit on reservations would be applicable for the vacancies to be filled in each year, he used the following numerical example to justify his (and the Court’s) position in this regard. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50 per cent that means that out of the 1000 posts 500 must be held by the members of these classes, that is, 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes.136 At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 that is, till the quota meant for each of them is filled up. This may take quite a number of years because the number vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50 per cent a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.
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As already mentioned, the Nagaraj Court used the theme of ‘balance’ to fabricate a way out of the stalemate presented by the Indra Sawhney decision.137 The Nagaraj Court declared that equity, justice and merit (efficiency) were the three variables that were required to be balanced. Keeping aside systemic efficiency for ease of analysis, it said that the surest method of ensuring a balance between equity and justice is to have a numerical benchmark. Coming specifically to the carry forward rule (which was the object of the 81st Amendment, inserting Article 16[4B]), the Court declared that when confronted with unfilled reserved quota vacancies, the State has only two options. To carry forward the vacancies, unfilled, to the next year, or the next to next year, or to fill the vacancies with general quota candidates and carry forward the quota to the next year. In either case, the Court said, the problem of exceeding the 50 per cent limit on reservations was liable to arise.138 Thereupon, juxtaposing the numerical limit requirement with the issue of carry forward vacancies, the Court declared that ‘the question was whether annual vacancies should be taken as the unit of consideration or whether the entire cadre strength should be considered, while enforcing a numerical limit’. The Court traced two lines of thought in this regard, the Rangachari (supported by Subba Rao’s minority view in Devadasan) and N.M. Thomas line, which thought that the only numerical limit that could be imposed on reservations was with reference to the entire cadre strength, and the Devadasan (majority) and the Indra Sawhney line, which felt that unless the numerical limit was imposed on the annual vacancies the guarantee of equality of opportunity under Article 16(1) to each individual citizen would be negated. Thereafter, with a series of disjointed statements, the Court linked the decision in the R.K. Sabharwal case to the issue and declared that ‘[t]he Constitution (81st Amendment) Act, 2000 added Article 16(4B) which in substance gives legislative assent to the judgment in R.K. Sabharwal’. While it is possible to fathom the Court’s reasoning with respect to this conclusion, the feat does not redound to the Court’s credit in any manner. The sequence of statements referred to above was as follows:139 1. However, in R.K. Sabharwal (in) which…the issue…was operation of roster system, the Court stated that entire cadre
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strength should be taken into account to determine whether reservation up to the required limit has been reached. With regard to ruling in Indra Sawhney case that reservation in a year should not go beyond 50 per cent the (Sabharwal) Court held that it applied to initial appointments. The operation of a roster for filling the cadre strength by itself ensures that the reservation remains within the 50 per cent limit. In substance the court said that presuming that 100 per cent of the vacancies have been filled, each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate. The Court was concerned with the possibility that reservation in entire cadre may exceed 50 per cent limit, if every year half of the seats are reserved. The Constitution (81st) Act, 2000 added Article 16(4B), which in substance gives legislative assent to the judgement in R.K. Sabharwal.
The disjointedness of the above statements apart, in fact there is no link that connects the Indra Sawhney case, the R.K. Sabharwal case and Article 16(4B). The petitioners in the R.K. Sabharwal case argued two issues. The first was, whether it is permissible to count reserved category officers who had been promoted to general category posts, on the basis of ‘consequential seniority’ (that is, seniority consequent to accelerated promotion, based upon reservation in promotion), when determining whether the cadre in question had achieved the prescribed strength of reserved quota officers? This question was answered in the negative by the Court, which declared that there was no bar to reservationists holding general category posts, though the fact that a large number of such candidates had come to fill these posts would be a factor to be considered whenever the government decided to review the particular policy of reservation itself.140 The second question pertained to the point in time till when it is necessary to maintain a ‘roster’ in a given cadre. It was contended by the petitioners that the roster should be maintained only till such point as the requisite number of reserved category roster points had been filled. Thereafter, it ought to be discontinued, since all that
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was required to maintain the requisite strength of reserved category employees in the cadre was to ensure that each post that fell vacant should be filled by appointing a person from the category, to which the said post was assigned, as per the original roster. In other words, it was argued that the roster was linked to posts and not vacancies. It was argued that if the roster were linked to annual vacancies, it would lead to over reservation in the cadre.141 During the course of discussing this question, the Sabharwal Court referred to the Indra Sawhney decision and extracted a quotation from Justice Jeevan Reddy’s judgement, which was made in connection with the need to maintain a balance between reservationists and generalists, with reference to annual vacancies rather than the total strength of the cadre or service. The Jeevan Reddy view was that if the entire cadre is treated as the unit relevant for the purpose of filling up backlog vacancies, then the open competition channel would get clogged up for many years, since the number of posts falling vacant each year would be far fewer than the backlog of reserved posts that needed to be filled. Needless to add, this point was irrelevant to the issue before the R.K. Sabharwal Court, which was only concerned with the correct manner of operation of a roster, more specifically, a ‘promotion roster’.142 The Sabharwal Court rightly held that a roster could only operate till all the posts in a cadre had been filled in accordance with it. Be that as it may, in addition to referring to the Indra Sawhney decision during the course of this, the Sabharwal Court also chose to comment upon it. At best, it was a stray comment and ought to have been ignored. However, the Nagaraj Court chose to pick up the comment, and to convert it to its own purposes.143 To sum up, the Sabharwal decision pertained to the manner in which a roster should be implemented in order to ensure that it does not lead to an excess of reservationists in a given cadre of government employees. While declaring the correct manner of operation of the roster, it clarified that the Indra Sawhney decision was not an authority to hold that ‘the roster survives after the cadre-strength is full and the percentage of reservation is achieved’. Thus, the Sabharwal decision did not pertain to the issue raised by the petitioners in the Nagaraj case with respect to the constitutional validity of the 81st Amendment; nor did the decision in the Sabharwal case flow from (or, have any link with) the Indra Sawhney decision.144 To achieve this connection, howsoever absurd, the Nagaraj Court asserted that the R.K. Sabharwal decision introduced post-based rosters
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for the first time. It claimed that after the decision in the Sabharwal case, ‘specific slots for OBC, SC and ST as well as GC have to be maintained in the roster’. Further, it declared that, if a candidate from the particular category to which that post has been assigned in the roster is not available the ‘post may remain unfilled’, since it can only be filled by the specified category. This rule, the Nagaraj Court said, made it necessary to create ‘a classification between current vacancies on one hand and carry-forward/backlog vacancies on the other hand, which is what Article 16(4B) does’. Thus, the Court said, the insertion of Article 16(4B) can be said to have been necessitated by the R.K. Sabharwal decision. The reasoning of the Nagaraj Court is patently suspect. The concept of post-based rosters was not introduced by the Sabharwal decision. On the contrary, the roster has been in existence almost from the inception of the reservations regime in India and, has always been a post-based concept though, inevitably, the notion of vacancies must also enter the picture. In fact, the roster cannot be anything but post-based, since reservations are post-based.145 A roster is merely a method of distributing these posts between different categories of appointees, such as between the reserved and the general category appointees, or between the various sub-categories within the category of reserved posts.146 It thus makes no sense for the Nagaraj Court to have attributed this to be an invention of the Sabharwal Court. The Nagaraj Court was also misconceived in asserting that operation of the roster in accordance with the interpretation it had imparted to the Sabharwal decision would assure that reservations did not exceed the prescribed limit. The only thing that adherence to the prescribed roster would ensure is that each appointee is assigned his (or her) proper place/position in the cadre or service in question.147 It cannot ensure that a sufficient number of suitably qualified candidates are found for the posts that are vacant. In other words, it cannot ensure that there are no carry forward vacancies. If that is so, then the vacancies that are carried forward to the next year will necessarily get added to the current year vacancies of that year. Given that the existing reservation quotas add up to 49.5 per cent in all, this means that the 50 per cent limit on reservations, based on the vacancies (including carry forward vacancies) for a given year, is bound to be breached the moment there are carry forward vacancies. In such a case, the limit imposed by the Indra Sawhney decision would stand violated.
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If so, then the R.K. Sabharwal decision does not operate to mitigate the effect of Article 16(4B) nullifying the Court’s decision in the Indra Sawhney case, in any manner. Further, if the Indra Sawhney case established a balance between equity and justice in the context of reservations, as asserted by the Nagaraj Court, then the impugned law does operate to destroy that ‘balance’. Further, since decisions of the Supreme Court are law, it is entirely possible that the law laid down by the Indra Sawhney case was important enough to be called a ‘basic feature’ of the Constitution. If that is assumed then the 81st Amendment did violate the basic structure of the Constitution, by introducing Article 16(4B) into the Constitution. It thus becomes important to understand the logic by which a body no less august than a five judge constitution bench of the Supreme Court arrived at a, seemingly, absurd conclusion. To understand how the Nagaraj Court concluded that the R.K. Sabharwal case is relevant, and that the 81st Amendment gives legislative assent to that decision, one has to understand how the Nagaraj Court dealt with the contention of the petitioners that the impugned amendments were, ipso facto, bad because they had been brought in to nullify Supreme Court decisions on those issues. As stated, this contention was dealt with by the Nagaraj Court on the basis of an overall analysis of the said amendments from the perspective of the classification rule.148 We have noted earlier that in each case where the State provides for reservation Article 16(4) requires two circumstances to be in existence: backwardness and inadequacy of representation. Applying what it called the width test, the Nagaraj Court concluded that the impugned Articles—16(4A) and 16(4B)—do not remove these limitations on the mode of the exercise of power by the State. As such, it said, the impugned amendments bringing them into being cannot be deemed invalid.149 Thus, the Court said, ‘applying the “width test”, we do not find obliteration of any of the constitutional limitations’. Thereafter, the Court tested the impugned amendments against the test of identity. Stating that any amendment must bring about change, it posed the question ‘whether the impugned amendments discard the original constitution’. It pointed out that the impugned amendments do not violate any of the overarching principles of the Constitution, like secularism, federalism, equality, etc. On the other hand, the Court suggested, the impugned amendments are patently in
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furtherance of the preamblic mandate for equality ‘in fact’, as distinct from equality ‘in law’ (or formal equality). As such, the Court said, ‘applying “the test of identity”, we do not find any alteration in the existing structure of the equality code’. While holding thus, the Court acknowledged that the impugned amendments were actuated by the Court’s decisions in the Virpal Singh Chauhan case, the Ajit Singh cases, and the Indra Sawhney case, but asserted that they did not directly impinge upon these judgements. It held that the amendments merely enabled the various legislatures of the State (Central and Provincial) to make laws providing for certain kinds of reservation. Having held thus, the Court said that ‘it is well settled that the Parliament legislates (makes laws) but it is the judgements of the Supreme Court that provide the content to the “right” conferred by that law’. Thus, it said, if any government makes a law providing for reservation, which ignores the parameters laid down by Article 16(4) and Article 335, the Court would strike down the same.150 In these circumstances, the Court said Articles 16(4A), 16(4B) are both instances of permissible classification, inherent in the notion of equality, as propounded by the equality code of the Constitution.151 Thus, the Court said, Article 16(4A) is inspired by the observations in Paragraphs 802 and 803 of the Indra Sawhney decision, where the Court validated the notion of sub-classification between different backward class groups on the basis of their differing degrees of backwardness. Similarly, the Court said, Article 16(4B) makes a classification on the basis of the differential between current vacancies and carry forward vacancies. This differentiation, the Court said, became permissible by virtue of the judgment in the R.K. Sabharwal case, which introduced the ‘concept of post-based roster’.152 Therefore, the Court said, Articles 16(4), 16(4A) and 16(4B) form a composite part of the same scheme. Further, Articles 16(4A) and 16(4B) are both inspired by observations of the Supreme Court in Indra Sawhney and R.K. Sabharwal; and they have nexus with Articles 17 and 46 of the Constitution. Therefore, ‘we uphold the classification envisaged by Articles 16(4A) and 16(4B)’. The impugned constitutional amendments, therefore, do not obliterate equality. It is obvious that the Nagaraj Court was justified in asserting that Articles 16(4A) and 16(4B) were instances of permissible classification under the equality code. Had it left the matter at that, there would
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have been no reason to complain about its reasoning. However, it needed to go a step further and, discover a link between these articles and the Indra Sawhney judgement, which would counter the argument by the Nagaraj petitioners that they nullified the Court’s decision in that case. Given the categorical assertion against both, reservation in promotions, and any transgression of the 50 per cent limit in that judgement, there was no direct method of doing so. Therefore, it chose the Virpal Singh Chauhan case to validate Article 16(4A), and the R.K. Sabharwal case to validate Article 16(4B). The question still remains. Given that Articles 16(4A) and 16(4B) were, even otherwise, constitutionally valid, why did the Nagaraj Court need to assert that the impugned amendments to Article 16 were in furtherance of suggestions emanating from the two Supreme Court decisions mentioned above, even assuming that the Nagaraj petitioners were correct in their assertion that they nullified the Court’s decision in the Indra Sawhney case? The answer to this question is complex, since the Court was operating at several levels. Further, the answer does not entail attribution of any malafides to the Court.153 In fact, the Nagaraj Court was probably actuated by the need to restore the balance between generalists and reservationists, which had got tilted in favour of the former, in the aftermath of the implementation of the Mandal Commission report.154 If that is so, then it is obvious that the Nagaraj Court was constrained by the nine-judge decision in the Indra Sawhney case, which was binding upon it. It could also be argued that, simultaneously, the Nagaraj Court also felt itself constrained to avoid explicitly upholding the right of the executive–legislature to legislate against its decisions. In other words, caught between the devil and the deep blue sea, the Court saw its only choice as giving short shrift to logic. The adoption of the stratagem in question softened the Nagaraj Court’s deviations from the Indra Sawhney decision. The rule of ‘stare decisis’ is a fundamental pillar of the edifice of common law justice. Thus, the five-judge bench of the Nagaraj Court was bound to follow the decisions of the nine-judge Indra Sawhney Court; more so, when the latter Court was supposed to be the last word on all important issues pertaining to reservations. The only choice open to a Court inclined to disagree with such a decision is to call for the constitution of an even larger bench of judges, which would have been formally entitled to overrule the Indra Sawhney decision on any point, on which it chose
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to differ with it. Why the Nagaraj Court did not exercise this option is not known, though some of the reasons can be guessed at. For one, referring the matter to an eleven-judge bench (the next larger size) would have delayed the decision considerably. The other alternative, to explicitly uphold the right of the State (executive-legislature), to overturn the Supreme Court’s decisions by bringing in legislation with this specific object, would have been politically inexpedient. The Court currently enjoys a relatively high degree of ascendancy vis-à-vis the legislature, albeit within certain clear cut limits. Such a course of action would tantamount to surrendering some of that ascendancy. Besides, even as the Nagaraj Court was pondering over its decision, the Supreme Court was locked in a battle with the State over the issue of legislation/rules, introduced to nullify its orders, with respect to the ‘sealing and demolition’ of illegal structures in Delhi. Thus, this course of action was also not open to the Nagaraj Court in terms of real politics. It is unfortunate, however, that the Nagaraj Court chose to adopt illogic to tread a path out of the knotty maze of the Supreme Court’s own previous decisions, rather than to cut through the tangle with the aid of the rational (and reasonable) Subba Rao position on reservations. In fact, a reading of Justice Kapadia’s judgement (in the Nagaraj case) makes it seem that he might even have considered the possibility, but then decided against it. We may recall that the Court posed the issue of reservations as the balancing of equity, justice and merit. While equity and justice may be deemed to have been balanced in the manner described above, merit remains to be addressed. It was the case of the Nagaraj petitioners that by inserting a proviso into Article 335, the State had negated the importance of efficiency in administration. It was argued that a harmonious reading of various provisions of the Constitution indicate that efficient public service is a central concern of the Constitution.155 It was argued that the proviso to Article 335 has been introduced to nullify the effect of the decision in the case of Indra Sawhney and a host of other cases, which emphasize the importance of maintaining efficiency in administration. It was claimed ‘the impugned amendments invade the twin principles of efficiency, merit and the morale of public services and the foundation of good governance (sic)’. The State did not make any argument in response, specific to the issue of merit or efficiency. This is reflective of the peculiar position
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of these attributes in the scheme of things. On the one hand the merit–efficiency argument is invariably invoked by the generalists in every case concerning reservations. On the other hand the Supreme Court has never considered merit–efficiency as standing in the way of the policy of reservation. However, it has repeatedly used the bogey of merit–efficiency to restrict, limit or, even, strike down provisions for reservation. Once again, the minority judgement of Justice Subba Rao in the Devadasan case stands out as an exception, displaying the courage to take a firm stand on this issue.156 The Nagaraj Court’s position on merit–efficiency is consistent with the general position of the Supreme Court.157 While holding that the State is in the best position to define and measure merit, in whatever ways it considers it (merit) to be relevant to public employment ‘because ultimately it has to bear the costs arising from errors in defining and measuring merit,’ the Court simultaneously made it clear that the State’s failure to formulate justifiable schemes of reservation, based upon ‘quantifiable data’, would make a proposed scheme liable to be struck down as invalid and/or unjustified. Since the merit–efficiency argument was not considered deserving of independent treatment, in order to get a flavour of how the Nagaraj Court used it, the statements by the Court, connected with this issue, are listed below:158 z
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Equity and justice in the above context are hard-concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution.159 Merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another. The difficulty is that there is no natural order of ‘merit’ independent of our value system. The content of merit is context-specific. It derives its meaning from particular conditions and purposes.160 The impact of any affirmative action policy on ‘merit’ depends on how that policy is designed. Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum.161
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The point which we are emphasising is that…‘vesting of the power’, by an enabling provision, may be constitutionally valid and yet ‘exercise of the power’ by the State, in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy, keeping in mind the efficiency of service as required under Article 335.162 (The) proviso (to Article 335) was inserted keeping in mind the judgement of Vinod Kumar (in S. Vinod Kumar and Another vs Union of India and Others, 1996 [6] SCC 580), which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of Clause (4) of Article 16 (that is, by virtue of Article 16[4A]) then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4A).163 As stated above equity, justice and efficiency are…context specific. There is no fixed yardstick to identify and measure (them), it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State…. If the concerned (government) fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event, the provision for reservation would be invalid.164 Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including (by the 82nd Amendment introducing a proviso to Article 335). The limitation under Article 335 is relaxed and not obliterated. The constitutional law is the law of evolving concepts. Some of them are generic others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued, as in the case of access vis-à-vis efficiency, which depends on the fact situation only, and not abstract principle of equality in Article 14 (sic).165 As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors,
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we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors, then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of ‘guided power’.166 However, the question still remains whether the concerned State has identified and valued the circumstances justifying it to make reservation. This question has to be decided case-wise. There are numerous petitions pending in this Court, in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case.167 Therefore, in each case, the Court has got to be ‘satisfied’ that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned ‘State will have to place before the Court’, the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts, without affecting general efficiency of service as mandated under Article 335 of the Constitution.168
The Court concluded its judgement by declaring that while reservations were not an issue, their extent was. It reiterated that the State would have to abide by all the conditions and injunctions, pertaining to its power to make reservations, such as, the ‘ceiling-limit’ of 50 per cent, identification and exclusion of the ‘creamy layer’ and, in each case, it would be required to prove the existence of the compelling reasons, namely, backwardness, inadequacy of representation. Further, in each case the State would have to show that it had taken the requirement of maintaining ‘overall administrative efficiency’ into consideration. Without adherence to these conditionalities, the Court said, the structure of equality of opportunity in Article 16 would collapse.
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A SUMMING UP The Nagaraj Case The Nagaraj Court held that equality is a part of the basic structure of the Constitution. It implied that confusion arises because people fail to distinguish between two aspects of equality, namely ‘formal equality’ and ‘egalitarian equality’, which is the same as equality of opportunity. While the distinction is clear enough, the Court seemed to lack conceptual clarity about the relationship between these two kinds of equality, in the context of the constitutional promise of justice, liberty, equality and fraternity. Nor did it display any clarity about its own role in this grand design. It hid its discomfiture by delving into academic definitions of equality and equality of opportunity, splitting up the latter into its component parts.169 It also cited Justice Holmes of the American Supreme Court to say that life of law is not logic but experience.170 However, the Court did not display the confidence either of its ‘logic’ or of its 50 years of ‘experience’ in affirmative action litigation. Instead, inextricably tangled in the knots of its own judgements, it was forced into a desperate scramble for ‘balance’. The Court’s assertion that there is no dichotomy between equality and affirmative action—both being aspects of the notion of equality, collectively affirmed in Parts III and IV of the Constitution—reflected the same lack of clarity. If the Supreme Court truly believed in this statement, it would treat reservations (and would have so treated of them in the past) in a radically different manner. The most important implication of this assertion would be that the Indian equality code does not affirm formal equality, subsuming the notion in the conception of equality as substantive equality (or equality of opportunity).171 Had that been the case, instead of continually striving for ‘balance’, as the Court claims to be (between affirmative action and equality), it would have seen affirmative action as being the balance, or the balancing force. The need for affirmative action arises because there is an existing imbalance. Indubitably, while redressing this imbalance, it is also necessary to ensure that the correction does not lead to a reversal of imbalance.172 However, this would be a minor consideration in a holistic conception of equality as substantive equality, which would come into play only when it became evident, that the original imbalance stands redressed (or, is on the verge of it).
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To state it more explicitly, the object of incorporating affirmative action in favour of Dalits and Adivasis was their grossly inadequate representation in government (public) employment. There is no dearth of evidence to establish that despite over 50 years of reservations in public employment, these categories of persons continue to suffer significant under-representation. In fact, there is overwhelming evidence to the effect that, under-representation in government jobs is only the tip of the iceberg of invidious discrimination that Dalits and Adivasis continue to suffer at the hands of their fellow citizens.173 What then is the sense of this constant striving for ‘balance’? In real terms none at all. In terms of legalese there is sense but only if the premise on which one operates is that of a dichotomy between equality and affirmative action. In other words, had the Supreme Court actually believed that the constitutional equality code was a comprehensive assurance promising the enforcement of substantive equality alone (and not formal equality in the main, with substantive equality being an interim arrangement) it would have wholeheartedly embraced the Subba Rao position on reservations.174 To reiterate, Justice Subba Rao said that till such time as the Dalits and Adivasis become adequately represented in public employment a provision for reservation of posts (or vacancies) for these categories of persons could not be impugned (or struck down) merely because such provision lessened the chances of non-Dalit and non-Adivasi candidates. He, further, asserted that the injustice to general category individual candidates was inevitable in the context of reservation. This could not be a ground for limiting a provision for reservations that was otherwise valid. However, the Nagaraj Court was content to adopt the empty shell of the ‘Subba Rao position’, declaring that Article 16(4) is not an exception to Article 16(1); that the non-obstante clause with which Article 16(4) begins, converts it into a class apart. The ‘Subba Rao position’ is a metaphor for the manner in which affirmative action must be viewed, in the context of the equality paradigm, in order to maximise social justice.175 Social justice can be defined as a ‘constant process of unsettling the status quo’. In which case it is evident that the (metaphoric) Subba Rao position would be required even after Dalits and Adivasis cease to need reservation (or other forms of affirmative action).
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Could there be other (good) grounds for holding that the constitutional equality code comprises assurances of both formal and substantive equality? This may well be so, given the multifarious manners in which the power of the State impinges upon the citizen.176 However, even if it so (that is, it is ‘desirable’ to include a notion of formal equality in the constitutional equality code), there is no reason why, at least with respect to ‘social justice’ action, constitutional equality cannot be interpreted as being wholly comprised of substantive equality alone, as is implicit in the ‘Subba Rao position’. The other assertions by the Nagaraj Court were specific to the issue of reservations. Since they have been amply discussed herein, they need not detain us any further.177 The Court laid one more injunction upon the State: the requirement that it develop criteria for identifying the ‘creamy layer’ among each of the backward classes for whom it makes reservations. These people, the Court said, should be excluded from the benefits of reservation. In principle, there can be no disagreement with the Court on this issue. However, the issue is extremely complicated and required separate treatment. Despite acknowledging the considerable problem posed by such a requirement, the Indra Sawhney Court held that ‘creamy layer’ can be, and must be, excluded, while implementing programmes of reservation for the OBCs.178 However, the Court made it clear that this direction was not applicable with respect to reservation for Dalits and Adivasis. The Nagaraj Court failed to clarify whether it was reiterating the Indra Sawhney position in this regard, or going a step forward and asserting that the creamy layer must be excluded even among Dalits and Adivasis.179 Before parting with this case it is necessary to make one more criticism. The Nagaraj Court lamented the factual vacuum, in which it was forced to hear and decide the issues raised before it, attributing (by implication) this dearth of empirical data to the failure of the State. What was the ‘dearth’ that the Court was referring to? From newspapers to government reports, to reports by non-government agencies, all aspects of the situation of Dalits and Adivasis in India, including their level of representation in government jobs, is well documented.180 Nothing prevented the Court from calling for this data and records. Nor was it difficult for the Court to have asked for any analysis of the data that was needed. It is natural to ask the question—why did the Court not call for this data and analysis, if it
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was so easily accessible? The answer is equally natural; the data would have vitiated the ‘balance’ that the Court wished to establish. Further, the data would have compelled the Court to address the issues before it, in real terms; to deliver a concrete adjudication based on facts. Such adjudication would have, at least metaphorically, taken the matter out of the Court’s hands. On the other hand, under this manner of adjudication, even as it declared the impugned amendments to be constitutionally valid the Court made it clear that it had only cleared them, in principle; retaining the right, as it repeatedly emphasized, to adjudicate upon the facts of each case that was brought before it.181 Could it be that the Court was inviting litigation? And, to whom could it be addressing this invitation? Clearly not the Dalits and the Adivasis.182 The history of affirmative action litigation makes it clear that challenges to reservations are mostly by generalists alleging excess in reservations. Comparatively, very few reservationists file petitions alleging denial of reservations. Taken at face value this statistic would imply that the State has gone overboard in its attempts to redress Dalit and Adivasi deprivations. But if this was actually so, it would also be reasonable to assume that nearly six decades of reservations would have resulted in Dalits and Adivasis gaining, at least, adequate representation in public employment. However, even the Nagaraj Court does not dispute that this happy state of affairs does not subsist. The Thesis Restated A notion of justice may be said to be inherent in the human condition.183 The quest for justice is, essentially, a quest for power sufficient for the holder to be able to negate (or negotiate) injustice. Law comes into the picture as a necessary adjunct for the enforcement of justice: that is, that without which justice cannot be actualised. This gives rise to the question: how effective is law (or rule of law) in facilitating the quest for justice (or social justice)? In the course of discussing the foregoing proposition and question, this paper suggests that whatever be the other justifications of (for) law, its primary use is a cloak to legitimise (in the sense of: give it normative value) the exercise of power. To put it differently, since law is symbiotically linked with force and, since the need of justice to be
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enforced compels it to link-up with law, the link between justice and law (that is, justice in accordance with law) is more to law’s advantage (and hence to the advantage of power) than to justice’s. For this reason, it is absurd to give law (and to rule of law) the attribute of being an instrument of justice. The other way around is more correct. Assuming the validity of the foregoing propositions, it seems inevitable that law (and rule of law) should result in a great deal of tyranny; with justice being the veil (à la Rawls [1971]) that is used to keep the masses quiescent. In other words, to paraphrase Hayek, not just socialism but all isms, including capitalism and liberalism ‘must inevitably lead to totalitarianism’. Ironically, without accepting the Hayekian (the Liberal) position in any manner, this argument validates one of his main criticisms of the modern social justice regime, namely that it ‘has become an instrument of ideological intimidation, used primarily for gaining the power of legal coercion’. Moving on, in a passing critique of Rawls this paper suggests that his theories of justice (and social justice) were instrumental to the birth and growth of neoliberal (neo-left) ideas, which helped defeat socialism. By seeming to destroy the gulf between the left and the right, they must also be seen to have contributed significantly to the ‘end of history’ hypotheses. To sum up, this chapter seeks to skirt the edge of anarchy without falling into it. In other words, while it does not suggest anarchy as an alternative to rule of law it may be said to imply that in order to increase levels of justice in society, in the context of law and rule of law, it may be necessary to more closely examine the structure of anarchy; for deducing principles that can be usefully employed in sovereignty situations. This paper also, though only by remote implication, suggests that despite the great progress that seems to have been made in political theory, including in the theory of rights, notions of authority remain, essentially, feudal. Finally, the chapter acknowledges a seeming gulf between the theoretical position that it takes and the reality of social justice programmes that work, at least to some extent. The gulf is ‘seeming’ because it is only visible if the theoretical position is (wrongly) seen as an attempt to deny a meaningful notion of social justice in the real world. Further, even assuming that—carried to its logical extreme—the chapter’s theoretical position does so deny social justice, this position must, at the very least, be seen to posit the limits of social justice (or justice) under a ‘rule of law’ regime.
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CONCLUSION The chapter started out to explore the politics of justice. To this end, after stating a few definitions and theoretical propositions, it subjected the judgements of the Supreme Court to an intense and harsh scrutiny. Inevitably, the scrutiny has revealed the warts beneath the make-up. Does that mean that the Court is bad or malicious? Is it deliberately intent on harming the cause of the Dalits and other backward classes? Does it mean that the rule of law is a fraud? That justice and social justice are false gods? Or, even, merely that the justice dispensed by the Supreme Court is fraudulent? Fence sitting apart, there can be only two answers: yes, or no. I will assume that the answer is yes. Shockingly unpalatable though it would be to live under such a dispensation, I would still argue that the Scylla of justice is infinitely preferable to the Charybdis of the other arms of the State. To quote Circe: No, hug Scylla’s crag—sail on past her—top speed! Better by far to lose six men and keep your ship than lose your entire crew.
NOTES 1. Feminists have taken exception to the term fraternity and have suggested community as a more appropriate alternative. See Gail Omvedt’s speech on the occasion of the fifth Babasaheb Ambedkar Memorial lecture, available at www. ambedkar.org. 2. The Preamble was amended in January 1977 (during the period of emergency imposed by Indira Gandhi in June 1975), vide the Constitution (42nd) Amendment Act, inserting the words ‘socialist, secular’ in the first line and, adding ‘and unity and integrity of the Nation’ to the explanation of the word fraternity, at the end. 3. In the Keshavananda Bharati case (AIR 1973 SC 1461, paragraphs 134, 139 and 174), the Supreme Court has said that they embody the concept of a welfare state. 4. However, as shall be seen in the sections below, the dichotomy between the Fundamental Rights and the Directive Principles continues to be aired, requiring repeated processes of harmonisation. 5. Where there is a right (or a wrong) there is a remedy.
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6. This is an aspect of judicial review, which will be discussed in the next section. 7. Selection through a competitive process of examinations plus interview, as is universally followed in India, conforms to this definition. 8. Theoretically, there is no impediment to formal equality of opportunity being implemented by an autocracy or a dictatorship or a communist regime. 9. See Galanter for a brief discussion on why he prefers to use this term as opposed to ‘affirmative action’, ‘reverse discrimination’, etc. 10. In a larger sense, the entire Part III and Part IV of the Constitution may be construed as an equality statement. 11. Chiranjit Lal Chowdhary vs Union of India and Others (AIR 1951 SC 41) quoting from (Willis 1936: 579). 12. Subsidy is an equally important mode of compensatory discrimination but it does not give rise to similar levels of public discussion and debate, perhaps because it is seen as a measure of charity. In contrast, reservations emphatically connote rights. 13. Article 334 provides that these special provisions would cease to operate upon the expiry of a specified period. Originally reservations were to cease after 10 years but have been extended from time to time, currently standing extended till 25 January 2010. 14. A proviso to Article 335 was inserted in 2000, stipulating that notwithstanding the efficiency criterion mentioned in the Article, the government would have the power to make rules relaxing ‘qualifying marks in any examination or lowering the standards of evaluation (or), for reservation in matters of promotion ...’ in favour of the Scheduled Castes and the Scheduled Tribes. 15. Earlier 12.5 per cent. 16. Earlier 5 per cent. 17. The label ‘scheduled’ got attached to all those groups (castes or tribes) that were listed in schedules attached to the Government of India Act 1935, as being eligible for reservation of seats in the central or provincial legislatures. Under the Indian Constitution a list of Scheduled Castes and Scheduled Tribes is maintained in accordance with Articles 341 and 342. Constitutional Order No. 19 of 1950 notified the list of Scheduled Castes for each province. The initial notification was issued by the President of India but subsequent changes are permitted to the Parliament only. Pertinently, the current lists of ‘scheduled’ castes and tribes is virtually identical to the one attached to the 1935 Act, with relatively minor modifications. 18. The issue was perhaps more complex than Galanter poses it. Tilak, the most prominent nationalist of that period, is credited with saying that ‘If God were to tolerate untouchability, I would not recognize him as God at all’ at a conference in Bombay in 1918. But he believed that no significant social progress was possible in a country that was not politically free. His opposition to the social reform platform also stemmed from the fact that most of its proponents were members of the elite who happily garnered all the benefits of British education, liberal social reforms and, stable government, while the British bled white the large mass of Indians. In these circumstances, Tilak was not wrong in holding
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that the refusal of the social reformists to back his call for poorna swaraj, arguing in favour of a gradual process, was duplicitous. Galanter quotes (Tinker 1962). Galanter states that the Untouchables were then about 50–60 million strong, ‘roughly the magnitude of the plurality of the Hindus in the population’. He also reproduces (1984: 33, fn. 45) a table showing a markedly declining percentage of Hindus between 1881 and 1941, based on Census data. Galanter quotes from Zelliot (1966). Galanter calls Gandhi the champion of the evangelical approach, and Ambedkar of the secular one, to the problem of Dalit rights. Ambedkar’s demand for reserved seats for the Dalits was accepted by the Simon Commission but the rejection of its report by the ‘major contenders’ forced the British Government to convene successive Round Table Conferences in London, both of which failed to agree on the mode and manner of representation for minorities. However, Ambedkar’s stand evolved from that taken before the Simon Commission to demand separate electorates for the Dalits. The subsequent ‘Communal Award’ by Ramsay MacDonald, the British Prime Minister, granted this right to the Dalits. In protest, Gandhi went on a fast unto death. Ambedkar succumbed to enormous pressure on the 21st day of his fast and signed the Poona Pact, giving up the demand for separate electorates in return for a system of reserved seats. Tellingly, he added ‘I won’t use the word commissions.’ The post-Independence affirmative action regime, propelled by the thrust of government measures and Supreme Court decisions, also owes much to Ambedkar. His speeches and position are increasingly cited by both sides of this struggle. Despite reservation of seats in both the parliament and the State legislatures, Dalits have not enjoyed significant political power till very recently. She headed a minority government supported by the BJP. Her mentor, Kanshi Ram, though popular, did not enjoy mass appeal. The only other nationally known Dalit politician was Jagjiwan Ram, who became Deputy Prime Minister in the Janata Party Government after the emergency. However, he was a Congressman and aspired to represent national interests. Though the two terms seem distinct enough, in the context of reservations they frequently create confusion, even in the mind of judges of the Supreme Court. An example of this confusion is discussed in the section titled ‘The Nagaraj Case Analysed’. It suffices to state here that while reservations (percentage reserved) are invariably made with reference to posts, all policies of reservation must necessarily be implemented thorough the aperture provided by the vacancies that arise in these posts. Article 16(4) speaks of reservation in favour of any backward class of citizens but reservations in Central Government jobs were implemented only for these two categories. However, many provincial governments had implemented reservations for Other Backward Classes (OBCs). The percentage of upper castes in the total population is an approximation, based on widely held public perception in this regard.
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32. This is discussed in the section titled ‘The Nagaraj Case Analysed’. 33. It is pertinent to note here that reservations are linked to both, posts and vacancies. 34. Article 335 of the Constitution declared that the claims of the Scheduled Castes and Scheduled Tribes to appointment in Public jobs shall be considered consistently with the maintenance of efficiency of administration. This was interpreted to mean that appointees from these communities should fulfil the minimum eligibility requirement. Very few Dalits and Adivasis could meet these requirements in the initial years. 35. Government of India, Ministry of Home Affairs, Supplementary (to resolution dated 13 September 1950) Instructions dated 28.1.1952. 36. After one year, the unfilled vacancies were de-reserved and filled from among the general candidates. 37. Though it seems anomalous that promotion (or its consequences) should be an issue when filling the reserved quotas for initial appointments was so difficult, this issue gave rise to a lot of litigation. 38. It is pertinent to note that such promotion benefited reservationists only till the levels where the criterion for promotion was seniority, or seniority-cum-fitness. The situation of most Dalit employees was so bad that even the requirement of passing a simple departmental exam was a major hurdle that many could not cross. 39. Though the reasons for providing for reservations for Adivasis were similar to those for Dalits, fundamental differences between the situations of two communities resulted in the issues becoming different. For example, most Adivasi communities were concentrated in a few geographic locations, where they were in a majority. Thus, most government jobs in these regions were in any case filled by members of these communities. Outside these specific geographies, reservations for Adivasis were not much of an issue. On the other hand, though always a minority, Dalits are spread throughout India. Reservation with respect to them, therefore, tends to excite considerable passion. 40. Typically, thousands of applications are received for every government job, with graduates, postgraduates and, even, PhDs applying for the post of a peon or a lower division clerk. Even today, the competition continues to be as severe as before, but the mix of applicants has changed considerably, with many more middle and lower caste applicants. Most of the upper caste applications for government jobs today are from first generation applicants. However, the best jobs continue to be dominated by the upper castes. 41. This is also attested to by the insertion of Article 16(4B) into the Constitution in 2000, specifically aimed at ensuring that the State could continue to fill carry forward vacancies, even after the decision of the Supreme Court in the Indra Sawhney case (Infra), de facto, barred the filling of such vacancies. The statement of Objects and Reasons, accompanying the insertion of Article 16(4B) explicitly states that the filling of carry forward vacancies was essential to prevent the failure of reservations based affirmative action programmes. 42. Since the paucity of eligible reserved category candidates is endemic, the second method results in a significant number of posts always remaining vacant. Since
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43. 44. 45. 46.
47. 48. 49.
50.
51.
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this militates against the requirement of efficiency in administration, most departments follow the first method. Ultimately 45 persons were appointed, of which 29 were reserved quota candidates. In other words, assuming that the concept of reservations was a legitimate mandate, the carry forward rule was a perversion of that mandate. This position was reversed in the Indra Sawhney case (infra). The bogey of the efficiency criterion is invariably raised to challenge all affirmative action programmes. It is pertinent to mark the derogatoriness implicit in this argument. Given the fact that the Indian bureaucracy, which is even today dominated by the elite castes and classes, is widely known for its inefficiency and corruption, the inference of inefficiency against the backward classes is misconceived. Justice S.K. Das (acting CJ), Justice K. Subba Rao, Justice Raghubar Dayal, Justice N. Rajgopala Ayyangar and Justice J.R. Mudholkar. A revealing statement: the operative concern is not inefficiency but resentment. The majority decision dismissed the (minority) view of Justice Wanchoo in the Rangachari case (supra), which said that to hasten attainment of the objective of ‘adequate’ representation of a backward class Article 16(4) permits the State to reserve all the appointments (vacancies) in a cadre or service till the target strength is attained, holding that his view ‘stands by itself and does not seem to have been accepted by the majority of the Court’. Further, they declared, ‘(t)he validity of the carry forward rule was not challenged in that case….’ Lastly, they pointed out that unlike Justice Wanchoo, who took this position while interpreting the expression posts in Article 16(4), ‘the Government resolution does not contemplate reservation of any posts in the service cadre but merely provides for reservation of vacancies’. (This, last, statement was factually incorrect. While a particular document may or may not have referred to posts, there could not have been any doubt in the minds of the judges that reservation under Article 16 is with reference of posts, and not just reservation in vacancies.) The concept of reasonableness is now held to be intrinsic to Article 14, and part of the basic structure of the Constitution, though what is reasonable in a particular set of circumstances is always moot. Since a completely subjective determination of reasonableness would be self-defeating, reasonableness has to be determined with reference to the object (or objects) that the classification seeks to promote. In the context of reservations reasonableness is often found to have been used to defeat (or restrict) the object/s of reservation. In this context it is noteworthy that the majority decision in the Devadasan case appeared inclined to question the legitimacy of the very concept of reservations in public employment, citing with approval a scheme of financial and other assistance adopted by the Maharashtra government for the advancement of the Backward Classes. Quoting from the judgement in the Balaji case (supra) they seemed to suggest that reservations could be used to supplement such schemes, if found necessary.
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52. The statement is tantamount to saying that—we wish we did not have to uphold reservations but we are constrained to do so. 53. A lucid and complete exposition of reservations under the Constitution. Nevertheless, as we will see, judges of the Supreme Court shy away from this position, preferring to mire the concept in confusion. 54. There are hundreds of examples, from Supreme Court decisions, on the manner in which a non-obstante clause must be interpreted, to prove that Justice Subba Rao was right and his brother judges, wrong. 55. This interpretation of Article 16(4) has prevailed and the majority position—that 16(4) is an exception to 16(1)—stands overruled. This is discussed below. 56. He held that while ‘Backward Class’ is not defined, whether a particular class is backward or not is a question of fact in each case and must be determined on the basis of certain objective tests. Further, he said, the determination of whether the backward class in question is adequately represented or not has been left to the subjective satisfaction of the State. 57. Though verging on the conservative, Justice Subba Rao’s position was more consistent with the then established norms (and limits) of judicial review. He declared that the Court was only concerned with the interpretation of the constitutional provisions and not with the policy underlying it. Thus, he said, given the constitutional sanction for the reservation of appointments and posts in favour of Dalits and Adivasis, the only question that remained to be answered was ‘whether in applying the instant rule the State did not provide for the reservation of appointments or posts’. 58. Justice Subba Rao also noted the argument that reservation implies the carving out of a part of the entire field. Thus, if the reservation covers the entire field or a major part of it, it ceases to be a reservation and is, therefore, not protected by Article 16(4). He noted that it was argued that the principle of ‘carry forward’, if logically extended, would result after some time in the destruction of the equality guaranteed by Article 16(1). Finally, he noted that it was argued that Articles 16 and 335 must be read together, and if so read, they imply that reservation cannot be made at the expense of efficiency. 59. The numerical example used by the majority judges was demonstrated as being imperfect and false by Justice Jeevan Reddy in his judgement in the Indra Sawhney case (infra). 60. The Subba Rao judgement cited the minority judgement of Justice Wanchoo in the Rangachari case (supra) to support his views in this regard. 61. He correctly noted out that the observations from the Balaji decision, relied upon in the Devadasan case, were general and, couched in expressions such as generally and broadly, indicating that ‘the observations were intended only to be a workable guide but not an inflexible rule of law even in the case of admissions to colleges’. 62. Both the issues are again discussed in the section titled ‘The Nagaraj Case Analysed’. 63. This is not to deny that over time the number of Dalits in government jobs has increased continuously. Their levels of education and qualifications have also shown steady improvement, resulting in a rise in the percentage of Dalits seeking
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65.
66.
67. 68.
69. 70. 71. 72. 73. 74.
75. 76.
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promotion to higher posts. Added to this were better levels of awareness and confidence and, their growing political clout in an increasingly divided polity. Thus, the Dalits also struggled to undo biases in the administrative regime that implemented compensatory discrimination programmes. General Manager, Southern Railway vs Rangachari (supra). However, 30 years later the Indra Sawhney case (infra) returned the nation to the original position, namely that reservations are not permissible in promotions. The fact that the average age of reservationists is generally higher by about two years, compared to the generalists, ensures that the top echelons were always occupied by generalists. Article 16 does not limit reservations (or any other programme of compensatory discrimination) to Dalits and Adivasis. It permits the State to provide for reservation for any ‘backward class of citizens… (who) is not adequately represented in the services under the State’. Article 340 empowers the President to appoint a Commission to ‘investigate the conditions of socially and educationally backward classes… and to make recommendations as to the steps that should be taken…to improve their condition….’ Reservations for OBCs were implemented on the basis of the report of such a Commission, called the Mandal Commission. The total population of the upper castes and other non-backward Indians would not exceed 30 per cent by any calculation. It was decided by a nine-judge bench of the Court. By the principle of stare decisis this decision is therefore binding on all benches of the Court of smaller size, which includes the bench in the Nagaraj case, which was decided by a bench of five judges. The summary is restricted to relevant issues only. Indra Sawhney is a member of the said Association. In other words, whether it is necessary to exclude the creamy layer from the benefits of reservation? M.R. Balaji v State of Mysore, supra. T. Devadasan v Union of India, supra. A total of 14 questions, with several of them having sub-questions, were framed by Jeevan Reddy J., who delivered the main (and most quoted) judgement in this case. Note the similarity of language between this and the language of the petitioner in the Devadasan case. The Supreme Court has held that the basic structure of the Constitution is beyond the competence of simple (or, even, special) parliamentary majorities. For example, India cannot be changed from a republic to a monarchy; nor can the secular nature of its polity or the guarantees enjoyed by the minorities be tinkered with. Similarly, since ‘a free democracy’ is impossible without equality and the freedoms (of speech, etc.) guaranteed by Article 19, these rights had to be preserved at all costs. The notion of a basic structure of the Constitution was built up in a series of decisions, emerging in full blown form in the Keshavananda Bharati case (His Holiness Keshavananda Bharati Sripadgalvaru and Others vs State of Kerala and Others, AIR 1973 SC 1461), in which the Supreme Court held that the ‘basic structure (or features) of the Constitution cannot be amended
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77. 78.
79.
80.
81. 82.
83.
84.
85.
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under Article 368’, which empowers the Parliament to amend the Constitution. The doctrine was further developed over the succeeding years, culminating in the current position, which holds that the Fundamental Rights, including the power of judicial review by the Supreme Court and the High Courts, are part of the basic structure, which cannot be abridged or abrogated in any manner. However, if the answer was no, then the other questions also needed to be answered. It declared that fundamental rights are not conferred upon citizens but individuals possess them independent of the Constitution because they are members of the human race. The judgement said that the Supreme Court has repeatedly deduced fundamental features, which are not specifically mentioned as fundamental rights, on the principle that certain unarticulated rights are implicit in the enumerated guarantees. To illustrate, the Court cited the S.R. Bommai case in which the Court held secularism to be an essential feature of the Constitution, and part of its basic structure, even though it is not listed as a fundamental right in explicit terms, and is to be found by a linked reading of several provisions. An instance is the principle of reasonableness, which connects Articles 14, 19 and 21. By this reasoning, the Court identified federalism, secularism, reasonableness and socialism, etc., as systematic and structural principles underlying and connecting various provisions of the Constitution, giving it coherence. The basic structure doctrine was the Supreme Court’s answer to the conundrum posed by the Parliament’s attempts to limit the justiciability of certain laws, on the ground that these limits were needed to protect the social justice laws from the depredations of the general guarantees of fundamental rights. Unchallenged, the polarity introduced by this bar to judicial review would have forced the Court to either adopt the stance of the legislature–executive, losing its own identity as a champion of justice (and social justice) or, if it opposed their proposals, run the risk of being pilloried for being pro rich and anti poor. The doctrine enabled the Court to take control of the very language of the debate that it entertains in this regard, propound its own views on what connotes a free, just, liberal and democratic polity. Further, it enabled the Court to disagree with the legislature–executive with respect to a social justice legislation or action, by declaring the proposed legislation (or action) to be in violation of the very same preamblic goals that the said legislation (or action) essayed to promote. This was the position enunciated by the majority decision in the Devadasan case, which had been overruled by the Indra Sawhney case. Why the petitioners felt they could re-argue a point ‘settled’ by the Indra Sawhney decision is discussed below. The expression in italics was adopted by the petitioners in the Nagaraj case exactly as it was used by Justice Reddy in the Indra Sawhney case but was meant to connote the opposite of what he had said in that case. The why of this is discussed below. Thus, in order to understand it as it was meant, it must be read along with the rest of their submission on this point.
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86. There is a link between this argument and the manner in which the Court used the basic structure doctrine to bring laws protected by Articles 31A, 31B and 31C within the purview of judicial review. 87. In an argument that was peculiarly ‘legal’, it was contended that the basic structure is not to be found in a particular article of the Constitution (except the right to life in Article 21 read with Article 14) and hence, no particular article of the fundamental rights chapter can be said to represent a basic feature of the Constitution. Thus, it was argued, the equality mentioned in Articles 14 and 16 is not to be equated to the equality, which is a basic feature of the Constitution. On the other hand, it was claimed, concepts flowing from the Preamble to the Constitution definitely constitute the basic structure. 88. Note that this is essentially the position that Justice Subba Rao took in his dissenting judgement in the Devadasan case. Bereft of all other justifications for interfering, this is precisely what the Supreme Court has (impliedly) held in the Nagaraj case. 89. This is consistent with the position taken by the Court in the Indra Sawhney case. 90. As already seen, it was the majority decision in the Devadasan case that held that Article 16(4) was an exception to the rule of equality contained in Article 16(1). 91. The Court held that all legitimate methods are available for equality of opportunity in services under Article 16(1). Article 16(1) is affirmative whereas Article 14 is negative in language. Article 16(4) indicates one of the methods of achieving equality embodied in Article 16(1). 92. Two of the seven judges in the N.M. Thomas case persisted in adhering to the majority view in the Devadasan case. 93. Since the Court took the view that Article 16(1) itself permitted classification (being a facet of Article 14) the State would have been entitled to have evolved such a classification and made a provision for reservation, even without Article 16(4), which, it said, merely puts the matter beyond doubt in specific terms. 94. This does not imply that the Court is wrong in its articulation of the relationship between Articles 14 and 16. However, this articulation lacks the economy and precision of the Subba Rao position, besides failing to address the ‘individual rights versus community expectation’ conundrum. 95. I have left out another crucial factor, namely the efficiency versus social justice binary, which too was addressed by Justice Subba Rao in his judgement in the Devadasan case, to avoid complicating the issue. This aspect shall be dealt with separately, below. 96. It said that Article 16(1) is a formal equality statement while 16(4) enunciates the goal of egalitarian equality. Or, in other words, egalitarian equality is, more or less, similar in content to equality of opportunity. 97. In legal parlance this is known as a ‘non-obstante’ clause, which permits the part of the provision, attached to it to override the remainder of the provision. 98. The Court added that these factors are not obliterated by the impugned amendments. 99. It argued that there can be no justice without equality, which is guaranteed by Article 14. Further, the ‘great social injustice’ caused by untouchability is
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100. 101.
102.
103.
104.
105.
106.
107.
108.
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abolished by Article 17, and Article 25 empowers the State to make laws to throw open all ‘public Hindu religious temples to Untouchables’. Therefore, provisions of Part-III also provide for political and social justice. This has reference to the carry forward rule (Article 16[4B]), and reservations in promotions with consequential seniority (Article 16[4A]). To put it another way, this is an implicit acknowledgement of two vital facts—one, the greatly increased clout of Dalits and Adivasis; and, two, the fact that reservationists now comprise an overwhelming numerical majority in the population of the country—simultaneously, of course, with an assertion of the (political) discomfort that these facts cause to the ruling classes and castes. To round off the discussion I have also adverted to decisions that have not been discussed in the chapter. These decisions were ignored because they do not affect the positions being discussed, and to avoid unnecessarily complicating the discussion. Several factors were responsible for this twisted position. First, the Court could not have directly gone against the binding decision in the Indra Sawhney case, being by a larger bench. Second, it is standard policy for the Court to adopt the most expedient method of arriving at the desired result; in this case it was simpler (and much more convenient) to merely uphold the primacy of the service rules, since their constitutionality had not been challenged. Third, depending on a complicated concatenation of facts and circumstances the Supreme Court uses either one of two well-known methods to achieve the desired result: (i) by a sweeping fiat that is applicable to all similar cases and, (ii) by a process of case by case attrition. The Devadasan case, the Indra Sawhney case, and the Nagaraj case can be seen as examples of the first method, while the Virpal Singh Chauhan case can be taken as an example of the second method. The absurdity of the decision in the Virpal Singh Chauhan case will be discussed below, while dealing with the manner in which the efficiency criterion has been used to defeat affirmative action. There were three cases in all. They are labeled Ajit Singh I, II and III for distinguishing them from each other. In this chapter, I have only dealt with Ajit Singh II, which decided three applications for clarification of the main judgement in this case. The Court found support for its view not only from the Indra Sawhney decision but also from speeches by Dr Ambedkar in the Constituent Assembly. The Court also cited extensively from American decisions to bolster its views. Patently absurd, the Badappanavar Court was so biased against reservations that it lost all sense of perspective and proportion. Else, it would not have sought to equate the inequality between the elite classes and castes and the backward classes, with that between the haves and the have-nots among the backward classes. While referring to the decision in the Badappanavar case the Nagaraj decision stated, ‘This is the only judgment of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of consequential
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109.
110. 111.
112. 113.
114.
115.
116. 117. 118.
119.
120.
Ashok Agrwaal seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution.’ The failure of the reservations regime to give adequate representation to Dalits and Adivasis in public employment, even after several decades is a theme that is repeatedly played out in the Nagaraj judgement. However, though forced to mention this fact, the judgement studiedly refuses to be drawn into discussing the broader implications of this failure upon the so called, balance that the Supreme Courts claims to strike with each decision on the subject of reservations. Nothing more was said about this Amendment, at this point. The discussion in the Indra Sawhney judgement in this regard was in answer to question no. 5 (of the questions framed by Justice Jeevan Reddy), namely: whether Backward Classes can be further divided into backward and more backward categories? The discussion is contained in paragraph numbers 801 to 803. The Court added that it was not calling for such a differentiation, merely that if such a categorisation is made, it would not be invalid. To buttress its reasoning the Court pointed out that even the Mandal Commission had differentiated between more and less backward OBCs, by grading them on a scale from 11 to 22. (Paragraph 802 of the Indra Sawhney decision.) The respective reservation quotas for Dalits (15 per cent), Adivasis (7.5 per cent) and OBCs (27 per cent) added up to 49.5 per cent, leaving no scope for backlog vacancies within the overall limit of 50 per cent reservations. This is an illogical statement. Unfilled vacancies arise because reserved posts that fall vacant cannot be filled for want of suitably qualified candidates, from the reserved category to which the post in question has been assigned under the roster. By the operation of the carry forward rule, these vacancies are readvertised in the next year, along with the current vacancies of that year. The Court called this the clubbing of unfilled and current vacancies. It is obvious that the clubbing will happen whenever unfilled vacancies are carried over, irrespective of whether the roster is operated properly or not. Another illogical statement, which is discussed below. Interestingly, the Court did not give Justice Subba Rao credit for this. This refers to the placing of a limit on the carrying forward of unfilled vacancies. In other words, the Court assumes that despite being carried forward, these vacancies are likely to not get filled. Hence, the State must, simultaneously with adopting the carry forward rule vide Article 16(4B), fix a limit for the number of years that the vacancies will be carried forward. There can be no more telling a statement about the essential indifference of the Court to affirmative action. As has been pointed out above, in the section titled ‘The Period Till 1990’, a very large number of carry forward vacancies have always lapsed because there are not enough suitably qualified candidates, from among the Dalits and Adivasis to fill them. This is also proof of the fact, if any were needed, that mere policies of reservation are never enough to attain equality of opportunity.
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121. Article 141 makes the law declared by the Supreme Court…binding on all courts within…India. Article 142 makes all orders and decrees of the Court enforceable throughout India and, Article 144 enjoins ‘all authorities, civil and judicial,(to) act in aid of the Supreme Court’. 122. Ajit Singh vs State of Punjab II (supra). 123. Article 368 is titled ‘Power of Parliament to Amend the Constitution and Procedure Therefor’. The topic is vast and requires separate treatment. 124. It was contended that to hold otherwise would stultify the Constitution, rendering it unable to meet the challenges posed by the changing needs of time and society. 125. There is a legal distinction between a law and the exercise of power under it. A law may be declared valid but the exercise of power under it may be struck down as violating the Constitution. Articles 16(4A) and 16(4B) did not bring about any reservation but merely enabled the State to make laws (or rules) for such reservation. Since the exact manner in which it would choose to exercise its powers under these provisions was not known, the State argued that the conferment of such enabling powers (by virtue of Articles 16[4A] and 16[4B]) could not be said to be bad by examining the (hypothetical) consequences resulting from a possible manner in which the power might be exercised. 126. The catch up rule, which is the obverse of the consequential seniority rule, was also discussed. 127. One possible way of overcoming the bar on reservation in promotion was suggested by the Court itself, namely that the respective recruitment authorities may provide for ‘direct recruitment’, in whichever grade of service, class or category in which they consider it necessary to appoint persons from the ‘backward class of citizens,’ with a view to ‘ensuring adequate representation’. The Court also declared that ‘[i]t would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration’. 128. The Court observed in this case that the ‘catch up’ rule was essential if merit was not to be ignored. 129. Supra. 130. Supra. 131. Supra. 132. He cited from a speech of Dr B.R. Ambedkar before the Constituent Assembly and from another speech by him while moving the Constitution (First) Amendment Bill before the Parliament in 1951, in support of this position. 133. The only exception being the Subba Rao judgement in the Devadasan case. 134. By its very nature, the carry forward rule tends to breach numerical limits upon reservation. Since the 50 per cent cap on reservations in annual vacancies imposed by the Indra Sawhney case included carry forward vacancies, the petitioners argued that the clear and direct effect of the 81st Amendment, introducing Article 16(4B) was to nullify this decision. 135. This is illustrative of the Court’s attitude in general, which permits it to use and discard practices without regard to mundane considerations, such as consistency.
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136. The numbers/percentages are consistent with the actuals approved by the Court, that is, 27 per cent reservation for OBCs, added to the existing reservation of 22.5 per cent for Dalits and Adivasis, making a total of 49.5 per cent reservations in all. 137. Something that the Supreme Court claims to have always striven for, in matters of reservation. 138. This is an honest statement. But having made it the Court went on to indulge in all sorts of semantic jugglery in order to forge an, essentially, untenable position. 139. The entire sequence is contained in one paragraph but is reproduced, with minimal editing, as a bulleted sequence, for convenience. 140. This is a generously pro-reservationist position. The Court held that a reserved category employee who had gained accelerated promotion by virtue of the operation of a ‘promotion roster’ (and, who had also been given the benefit of consequential seniority) could, on the basis of that seniority, be eligible for promotion to the next higher post. Further, since this, second, promotion was given de hors the promotion roster (that is, to a non-reserved post), that employee would thereafter not count towards the total strength of reserved category employees in that service or cadre. 141. For example, if 15 per cent of a cadre is reserved for Dalits, once this percentage of reservation is achieved, the roster should be discontinued. If, however, even after that 15 per cent of the posts falling vacant each year are reserved for Dalits, irrespective of whether the posts represented by those vacancies were filled by Dalits or not, then the total strength of Dalits in the service would go beyond the requisite reservation. 142. It can only be assumed (speculated) that the Jeevan Reddy quotation was extracted in the Sabharwal judgement to refute a contention by one of the parties to the Sabharwal case to the effect that the Indra Sawhney decision authorised the continuance of the roster, even after all the posts of a cadre had been filled in accordance with it. 143. The comment was that—the observation in the Indra Sawhney case that reservation in a year should not go beyond 50 per cent was only in relation to posts which are filled initially in a cadre (and do not pertain to promotions). 144. The Indra Sawhney decision placed a cap on the percentage of annual vacancies that can be reserved. The R.K. Sabharwal decision declared that posts could only be filled by appointing a person from the category to which it has been assigned in the roster. Read together, the Nagaraj Court said, the State had no choice but to create a classification between current and backlog (or carry forward) vacancies. Once again, the superfluity of the Sabharwal decision in the equation is patent. 145. That is, percentage reservations for each category must necessarily be based upon the total strength of a cadre or a service. 146. The Sabharwal decision itself explains the roster in sufficient detail to make this fact clear. For example, if 15 per cent of the posts in a service or a cadre are reserved for Dalits, a hypothetical roster might reserve every 7th post for Dalits. In other words, post numbers, 1, 8, 15, 22, 29, 36, 43, 50, 57, 64, 71,
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147. 148.
149.
150.
151. 152. 153. 154.
155.
156. 157.
158. 159.
160. 161.
162.
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78, 85, 92 and 99 of that service or cadre would have to be filled by appointing a Dalit. It would also ensure that there is no confusion about the category to which a post that falls vacant belongs. Some part of the discussion on how the Nagaraj Court used the classification rule to validate both, Articles 16(4A) and 16(4B), has already taken place above. The Court held that Article 16(4A) was a derivative of Article 16(4) since it carves out the Scheduled Castes and the Scheduled Tribes as being eligible for special dispensation on the basis of substantial reasons as given in the Statement of Objects and Reasons of the 77th Amendment Act. In other words, the Court accepted the argument put forward by the State that the impugned constitutional amendments were merely enabling in nature and, their constitutionality need not be judged on the anvil of (hypothetical) examples of actual exercise of power under them. The law must operate equally on all persons under like circumstances. The factual incorrectness of this statement has been pointed out above. Nor are they being attributed. Though the Court tried to maintain this balance in the Indra Sawhney case, there is no doubt that this decision ignored the ground realities about the situation of the Dalits and Adivasis in the field of public employment. The subsequent decisions accentuated this imbalance. Articles 309, 311, 315, 316, 317, and 318 to 323 were cited to illustrate the constitutional importance of the rights of, and protections to, office holders in the services of the Union and the States. His remarks are reproduced above. The Court said that justice, equity and merit are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case…. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. The statements are verbatim (except where carried in parenthesis) but are edited for compactness; albeit, without tinkering with the meaning. The Court said that inadequacy in representation and backwardness of Dalits and Adivasis enable the governments to act under Article 16(4) of the Constitution but their discretion is limited by the need to comply with the mandate of Article 335. This refers to a paper by Amartya Sen, in Meritocracy and Economic Inequality, Kenneth Arrow (ed.). The statement is factually correct. However, it is not known if this lack was despite the Court’s calls for data, or whether data was never called for. On the face of it, the latter circumstance seems more likely. In which case, the repeated emphasis on the lack of data would seem to be a tactic to reserve the right of the Court to reopen the issues of the Nagaraj case at some future date. Thus, the Court reserved its right to strike down individual schemes of reservation wherever they were found to violate the parameters set by it.
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163.
164. 165.
166. 167.
168. 169. 170.
171. 172.
173. 174. 175.
176.
177.
Ashok Agrwaal This stand is unexceptionable on the face of it but given the vagueness of the proposition stated this stand virtually negates the entire exercise of the Nagaraj decision. Thus, the Court took the view that the proviso to Article 335 was part of the scheme of the four impugned amendments. Since the Court found the main components of the scheme (Articles 16[4A] and 16[4B]) to be valid, it cleared the proviso to Article 335 also. The threat of judicial intervention, repeated. This sentence exemplifies the Nagaraj judgement. Disjointed statements and staccato expressions, clumsily cobbled together, which continually leave the reader wondering about the meaning of what has been said. Another, typical example! Statements such as this make it clear that all the ratiocination is mere window dressing verbiage. In the ultimate analysis all that is relevant is that the extent of reservations should be controlled. The ulteriorness of the merit-efficiency argument is patent. While the deconstruction may be correct in academic terms, it is of no use unless it serves the purpose. It is interesting to note that Justice Khanna used the same quotation in the N.M. Thomas case (supra) in the course of delivering an opinion that denied the right of the State to grant relaxation to Dalit employees for fulfilling the qualifying criteria for a promotion. The expression ‘proportional equality’ can also be used, in an appropriate context. The terminology ‘balance’ is inadequate for the purpose because it suggests a two way movement. However, in actuality the balance that is desired has multidirectional movement. A deliberate understatement. It is perversity to label what Dalits suffer at the hands of caste Hindus, ‘invidious discrimination’. Minority judgement of Justice K. Subba Rao in the Devadasan case (supra). It is unlikely that Justice Subba Rao came to his position by a process of analysis of equality similar to what I have attempted in this chapter. His position was probably much more instinctual, based on common sense rather than theory. However, there can be no doubt about what his position connotes. Without going into the reasons (or consequences) of why the modern nationstate prefers to emphasize individual citizenship to the exclusion of all other types, it is sufficient to state that in certain situations this may necessitate interpreting the constitutional equality affirmation as being an affirmation of formal equality also. Even as it stated its opinion on the correct manner of interpreting the constitutional scheme of reservations, the Court declared that in each case that comes before it the State will have to satisfy the Court that it has exercised its opinion on the basis of the requisite quantifiable data, that such reservations were necessary on account of inadequacy of representation of the backward class in question in a particular class or classes of posts, and that the reservations made will not affect the general efficiency of the service.
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178. Needless to add, the executive, which has been saddled with the task of actually devising proper mechanisms for excluding the creamy layer among the OBCs from the benefits of reservation has neither any clarity on how the task is to be accomplished nor the necessary political will to devise such an exclusionary process. 179. Since the Nagaraj decision only addressed itself to reservation for Dalits and Adivasis, this omission is of some significance. 180. For all its inadequacies, the Mandal Commission report is a comprehensive survey of facts relating to the social, educational and economic position of the backward classes, including Dalits. Further, the intense passions generated by the implementation of the report’s recommendations has resulted in considerable documentation, with all sides marshalling facts in support of their positions. All this data was readily available to the Court. 181. There is no rule or convention that requires that issues of constitutionality be determined as pure questions of law, without reference to facts. In fact, to quote Justice Holmes once again, ‘the life of law is not logic but experience’. Or, facts are essential even when debating abstruse legalities. 182. The Court stated that numerous petitions were pending before it, in which the reservations made by provincial governments on the basis of the powers vested in them by Articles 16(4A) and 16(4B) had been challenged as excessive. 183. The idiom is western. Eastern thought would place justice far more centrally, attributing it to all things on earth and in space; in other words, as Dharma, the law that governs the universe.
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5 The Fallacy of Equality ‘Anti-Citizens’, Sexual Justice and the Law in India OISHIK SIRCAR
Visibility is a trap. Michel Foucault (1979: 200) If the law is the crooked mirror of perverse social domination, its smashing, the ‘trashing’ of the law, is at best an idle pastime. However, if the law is also a constitutive condition of production/reproduction of despised sexuality, it offers among the first sites of struggle against cultural and political domination. Upendra Baxi (Quoted in PUCL-K 2003: 6)
OF ‘ANTI-CITIZENS’
T
his chapter is an attempt to capture fissures in the judicial interpretation of the equality clause of the Constitution of India and the legal processes that create the sexual ‘anti-citizen’, a subject whose existence is antithetical to the notion of respectable/ compulsorily heterosexual citizenship—and who has the potential to disrupt the peace with which this ‘normalcy’ operates. The status of the anti-citizen does not imply a position that is contra-citizenship, but one that is engaged in an ‘indefinite struggle’1 over the material meanings of citizenship. The anti-citizen is constantly negotiating the means through which her ‘belonging’ to a body politic is signified.
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‘Belonging’ here is understood as the longing for being constituted as ‘a being’—a yearning for formal citizenship status—but not one that is qualified through the lenses of compulsory heterosexuality. The provisions of equality and non-discrimination, enshrined in Articles 14 and 15 of the Constitution respectively, are cornerstones of the fundamental rights guarantee to Indian ‘citizens’. These guarantees, with specific regard to human rights concerns, have created an illusionary understanding of the operation of Rule of Law in India. I call it illusionary because judicial interpretation of these provisions ‘manufactures’ faith, ostensibly garnered from the polity, as being the ultimate repository of justice, and legality. In effect, along with dispensing justice, these interpretations also define the kinds of citizens who qualify as worthy of these guarantees, while simultaneously creating the impression that ‘justice-in-operation’ is universal, impartial, rational and objective. The anti-citizen is relegated to the sphere of illegality and thus not found worthy of full and equal citizenship rights. However, the anti-citizen is not made to disappear—his deviance is fine tuned through legalese—to ensure that he can be spotted and targeted whenever he moves, wherever he stays, or whatever he says. Yet, the anti-citizen continues to use this very mechanism, what Upendra Baxi calls the ‘constitutional software’, to negotiate his existence and, on many occasions, succeeds in redefining, challenging, pushing the limits—the meanings of citizenship through his efforts. Irrespective of the outcome, however, the efforts of the anti-citizen are accompanied by an excruciating violence of the law, seen as a category that helps us, both, ‘imagine’ justice as well as its fixatedness. Faith in the law emerges from two sources: one is the lived experience of knowing that the law delivers justice; the other is the imagination of the law as justice. These sources exist because of the belief in the inherent relationship between law and justice—law as the programming language of the constitutional software, which any ‘user’ can run, to invoke the ‘operating system’ of the state and judiciary, so that it can lend meaning to forms of injustice and illegality. The questions that I ask are: who are these ‘users’ of the ‘operating system’? Do the ‘technologies of justice’ use a ‘detection tool’ to identify and allow who can use the ‘operating system’ and for whose benefit? What enables the operating system to label certain kind of users as ‘viruses’? In other words, what informs the ways in which the law marks out
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anti-citizens and prepares to eliminate them? ‘Elimination’ in this case does not mean annihilation of the anti-citizen subject—it refers to means through which this subject is disciplined to become the respectable citizen—in effect eliminating the deviant identity of the anti-citizen. I would like to reach an understanding of why/how the use of law in the process of claiming rights is central to the agenda of the anticitizen as justice-seeker? It is interesting that in spite of being branded as illegal law remains the primary tool with which the anti-citizen can counter its (law’s) propensity to establishing and perpetuating disadvantage. Law creates illegality and at the same time allows people to use it to ‘make legal’ the illegality. Law is the most popular weapon for claiming rights. At the same time, law, almost always, remains the last resort for the disenfranchised citizen adversely affected by state, societal or familial acts that result in unjust deprivation/dispossession. Law creates the ‘state of marginality’, and it also is the most potent tool available to challenge deprivation on grounds of those very forms of marginality. Rule of Law, and its bastions of equality and non-discrimination, confront a challenge in a situation like this: their supremacy as the final word on the meaning of justice is disrupted and reconstructed at the same time. The ways in which the anti-citizen changes the meanings law constructs, while getting disciplined in the process, is of particular concern to me. In order to use the law to claim rights they first need to make visible their legally constructed criminality. This essay primarily attempts to capture those moments of discursive politics that the anti-citizen engages with, to give a twist to Audre Lorde,2 in re-building their houses with the master’ tools. Conceptually, I would look at how ‘Socio-legal Panoptics’ operate to locate the anti-citizen in certain kinds of spaces, and how law works to make criminal these spaces, as well as the bodies that inhabit them. With this, I connect how this differential treatment by the law towards ‘citizens-of-a-different-kind’ receives sanction through the ways in which courts interpret the constitutional principles of equality and non-discrimination. The process is effected through the means of ‘making same’, a criterion on the basis of which constitutional equality is guaranteed. I look at the creation of hierarchies through the operation of ‘Social Panoptics’, which make offenders out of certain citizens—not just because of what they do, but also merely
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because of what they are—and then map how the law criminalises such ‘status offenders’ and, as already stated, understand the legal strategies employed by the anti-citizen to counter the violence of the law. The geographies of illegality that I intend to travel through will specifically focus on liminal anti-citizens—the sexually marginalised in India.3 Here I draw on Homi Bhaba who considers liminality as ‘[the space] in-between the designations of identity…[which] prevents identities…from settling into polarities…[and opens the] possibility of a…hybridity that entertains difference without an assumed or imposed hierarchy’ (Bhaba 1994: 4). The anti-citizen is perpetually in a state of ‘becoming’ a citizen—her existence is not denied by the state—but, neither is she guaranteed full and equal citizenship. She engages with the state to claim her citizenship, but remains in the state of ‘becoming’ because the state will not constitute her as a citizen until she gets ‘disciplined’ into being ‘respectable’ and ‘compulsorily heterosexual’. She remains invisible in the eyes of the law when it comes to her citizenship rights, but becomes hyper-visible through laws that criminalise her. In other words, the anti-citizen finds herself in a state of perpetual flux, stepping in an out of what Swati Ghosh refers to as the ‘shadow lines of citizenship’ (2004: 105–23), but not quite making it across, into the realm of formal citizenship status. Understanding liminality in this sense allows us to capture the difference between the ways in which anti-citizens engage with the state, as opposed to citizens. This chapter purposefully makes ‘sexuality’ central, as the ground for understanding the ‘fallacy of equality’—yet at the same time I am cautious of not valorising it as the most acute form of disadvantage, recognising its intersections with class, caste, religion and location. The choice of sexuality emerges from my own work as a sexual rights activist and the belief in the potential of the queer4 anti-citizen subject to destabilise the comfort zones of constitutional guarantees and human rights. The reason for foregrounding the sexual anti-citizen can be best summed up in the following words: More often than not, the abuse suffered by subaltern sexual cultures has been made invisible…using a convoluted logic that arrogates to itself the ability to calibrate pain. First comes class, then comes caste, then come gender, ecology and so on. If there is any space left on this ark of suffering, then sexuality is included as a humble cabin boy. There is no hope of the last being the first in this inheritance of the meek. (quoted in Narrain 2003b)
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In the main, the chapter looks at how in the name of delivering justice, the law, including the judicial interpretation of constitutional guarantees, engages in a process of systemic delivery of violence—not necessarily through its enforcement—but through an imagination of criminality that it perpetuates. The notorious law that I will closely examine is Section 377 of the Indian Penal Code (IPC) that criminalises all sexual acts ‘against the order of nature’. The chapter will thus attempt to: (a) map the ‘geographies of illegality’ that law has created to criminalise homosexuals; and (b) capture the discursive ‘technologies of negotiation’ that these anti-citizens invoke, by using the law to expand the limits of constitutional justice. I chart the limits of law as a means to reach justice, and the potential for its use to challenge injustice through ‘counter-hetero-normative’ strategies that can achieve substantive equality for sexual anti-citizens.
LOCATING
THE
SEXUAL ‘ANTI-CITIZEN’
In legalese the anti-citizen and the citizen get constructed as binary figures: one, whose access to rights is guaranteed through the law and the other who is denied citizenship rights when identified as a criminal. The locations of the ‘respectable’ citizen and its ‘other’, the anti-citizen, are also clearly marked out by the law, enabling easy identification, labelling, surveillance and incarceration. The anti-citizen remains invisible in the eyes of the law, as far as, her rights guarantees are concerned but becomes hyper-visible when her actions need to be criminalised to save the society from degeneration. Law deploys itself not only through its enforcement but also by making its subjects internalise its sanctions, to govern the lives of anti-citizens. A useful way to understand the location of the anti-citizen is through the model of the Foucauldian ‘Panopticon’. How does the law’s radar detect the homosexual? If we place the ‘law’ on top of the ‘Panopticon’, then it is clear that it operates not only through its enforcement but also, because of the mere existence of the letter of the law. In Discipline and Punish, Michel Foucault elaborated on Jeremy Bentham’s ‘Panopticon’. The Panopticon is an architectural contraption where you have an observation tower erected in the middle of an open courtyard, surrounded by prisons. The idea being to ensure that the prisoners self-regulate their conduct because, in
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such a construction, the guards inside the tower can see the prisoners but the prisoners can never make out if the guards are looking at them, or even if any guards are present (Foucault 1979). In effect, the prisoners ‘behave’ themselves to avoid being censured or punished by the authority on top of the tower. Their deviance remains ever visible in the eyes of the authority. Foucault’s discussion helps us understand how law fits into the power/knowledge matrix of criminal law and sexuality. In this regard, it is useful to quote Catharine Lugg: Criminal law generally has two goals. The first is to deter socially unacceptable behaviour and second, to punish such behaviour if and when it occurs. In most areas of criminal law, these two goals seem remarkably straightforward. Yet in the area of sexuality, these goals of deterrence and punishment are complex, thanks to the historic use of law to enforce majoritarian notions of morality and respectability.… Furthermore, the law is understood to operate in ways that are distributive: doling out both rewards and sanctions. In turn, the general public takes its cues from the government as to whom is to be honoured as well as who is to be shunned, ignored, discriminated against, and not protected from violence. Law and the attendant legal system, working in conjunction with the social and political environments, can then serve as powerful panoptics, shaping individuals and their behaviour. (2006: 39)
The outcome of the operation of law as the authority on the panoptic tower is that the citizen internalises its sanction and performs a role of respectability and reformation, ensuring the automatic functioning of power. A regime of laws that criminalises consensual and non-procreative sexual behaviour sets up a similar structure of observation and surveillance. As Ryan Goodman points out in his study of the panoptic effect of anti-sodomy laws in South Africa: On the ground level, private individuals also perform roles of policing and controlling [lives of sexual anti-citizens] in a mimetic relation to the modes of justice itself. The outcome of this political matrix is the creation of (legal) visibility and an encompassing social gaze.…Foucault describe[s] this as the dispersion of ‘panopticisms’ in which the state apparatus does not exclusively exercise the function of control and surveillance; instead, this power and its processes are channeled through individual actors throughout the social body. (Goodman 2003: 688)
Thus, laws that criminalise consensual sexual behaviour contribute towards constituting a social attitude that discriminates against the anti-citizen, even when they are not enforced. Further, the Panopticoneffect permits the state to deny that a law can be discriminatory on the
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ground that it is never enforced, arguing that it is only the ‘use’ and ‘misuse’ of law that can attract the charge of discrimination, conveniently ignoring the fact that the very existence if the law in statute books feeds notions of illegality in the minds of ‘ideal’ citizens. While Section 377 has been on the law books since colonial times, and has rarely been used against homosexuals, societal acts of homophobic violence derive sanction from it. The same applies to a law like the Criminal Tribes Act, 1879, also a colonial legislation, that targeted the cultural community of Hijras—a male to female transgender/transsexual sexuality group—as being existentially criminal. Though the law has been repealed, it has permeated a popular ‘imagination’ about Hijras, as people who steal children, extort money and the like, which still operates to sanction violence against them because of their sexual identity/behaviour.5 In this sense, law not only legitimises violence against sexual anticitizens but also performs a role in popular knowledge creation and meaning making of what constitutes criminality and sexual deviance in the mind of the general populace. In Goodman’s analysis, the impact of anti-sodomy laws goes beyond the ‘enforcement’ principle: their role cannot be gauged only by studying their enforcement. One must also look at how these laws constitute and inform the social imagination. ‘The real danger lies in the fact that the imagination of criminality created by these laws…becomes part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press’ (Narrain 2005: 8). Foucault does not comment on the composition of the populace of prisoners on whom the panoptic gaze is being targeted. For him, within the captive setting of the prison, all prisoners are equally disciplined. Outside the realm of a physical prison though, the gaze does not disadvantage everyone because there exists a hierarchy of citizens and anti-citizens, in turn creating new kinds of hierarchies and legitimising new kinds of violence against anti-citizens. In her seminal essay titled ‘Thinking Sex’, Gayle Rubin discusses how hierarchies of sexual value function in the same ways as ideological systems of racism, ethnocentrism and religious chauvinism. She said, ‘They rationalise the well-being of the sexually privileged and the adversity of the sexually rabble’ (Rubin 1999: 151). Rules of sexual conduct create a sexual hierarchy which places heterosexual, monogamous, married, reproductive sex at the top—what she calls
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the ‘charmed circle’, with varying degrees of deviation being placed below, referred by her as the ‘outer limits’. As she notes: [S]exuality that is ‘good’, ‘normal’, and ‘natural’ should ideally be heterosexual, marital, monogamous, reproductive and non-commercial. It should be coupled, relational, within the same generation and occur at home. It should not involve pornography, fetish objects, sex toys of any sort, or roles other than male or female. Any sex that violates these rules is ‘bad’, ‘abnormal’ or ‘unnatural’. (Rubin 1999: 151)
Rubin’s analysis helps us understand how the panoptic gaze works on a heterogeneous population, leading to the accumulation of power by some, and depletion of rights guarantees for many others. She does not look at the law as the only, or the most powerful, source of panoptic control/surveillance, and explains how law synergises with other dominant/oppressive hetero-normative forces—like family, marriage, contractual relations, standards of inheritance and property distribution, mass media—that calibrate the hierarchy further. Thus, although sexual deviance is not solely a legal issue, it is because of the law that sexual anti-citizens are brought into a much more immediate, constant and pressing proximity to the state’s panoptic regime, than any other population group (Sunder Rajan 2003: 120). Rubin’s ‘sexual hierarchy’ is a model, which clearly acknowledges the layeredness of sexual identities and practices, and the ‘lines’ that calibrate the hierarchy into categories of good sex, bad sex and areas of contested sex. The hierarchy explains how dominant (read: heteronormative) discourses on sex ‘delimit a very small portion of human sexual capacity as sanctifiable, safe, healthy, mature [and] legal…’ (Rubin 1999: 152). The panoptic effect in turn decides where to draw the line, and determines what activities may be permitted to cross over into acceptability. Those that remain unacceptable are criminalised by the law, and stigmatised through norms of conservative sexual morality. Non-hetero-normative sexualities are subjected to legal surveillance, to ensure that they remain captive within the walls of ‘illegitimate sex’, making criminal and hyper-visible those, who are caught in the legal crossfire between what is imagined to be ‘sexual order’ and ’sexual chaos’. Given the ways in which a conservative sexual moral order—fuelled by nationalist–modernist ideologies—marks out the anti-citizen who engages in, or has the potential to engage in, ‘illegitimate sex’—the
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law is deployed to operate, both as the ‘walls’ that separate ‘good sex’ from ‘bad sex’, and to impose criminal sanctions to ‘keep the perverts in place’. It allows ‘cross-overs’ only when the anti-citizen is ready to give up on her alleged deviance and ‘become’ like those who are able to avail of rights because of their apparent adherence to ‘respectable’ norms of citizenship. In such a situation, sexual anti-citizens primarily do two things: they try and hide from the panoptic gaze, and to do so, huddle with other sexual anti-citizens—in gay bars, cruising places, online chat rooms. In the process of hiding from the law, they become more visible, and it becomes easier for the law to trace them in these spaces, which are also criminalised, along with those inhabiting them.
THE PUBLIC PREDICAMENT
OF
PRIVATE SEX
Law and conservative sexual morality draw a defining line between ‘good sex’: monogamous, marital, compulsorily heterosexual, and ‘bad sex’: all forms of non-heterosexual sex. While ‘bad sex’, and ‘bad bodies’, works towards escaping the panoptic gaze by ‘hiding’, law attempts to ‘make public’ those spaces which would be considered ‘private’ had they been inhabited by ‘good bodies’, performing ‘good sex’. Ratna Kapur in her most recent and influential work, Erotic Justice, makes a case about the engagement of the criminal law with the hetero-normative panoptic gaze and the conservative sexual hierarchy. Kapur says that the criminalisation of some activities such as, rape, adultery and sodomy, and the non-criminalisation of other activities such as rape of a woman by her husband (or rape of a ‘prostitute’) are founded on the notion that certain forms of sexuality are private, culturally accepted and, per se legitimate, when exercised within the family, or in a marital relationship. Law maintains and strengthens this public–private dichotomy, and the cultural assumptions on which the dominant sexual ideology is based (Kapur 2005b: 32, 33). Thus, when it comes to the law’s role as a protective mechanism of the state, it is seen to respond only when the ‘violation’ meets its qualifying tests. Only when the ‘good body’ is ‘under threat of violation’, or has been ‘violated’, is the law of any use. If the violated ‘body’ does not meet the legal standards of a ‘violable body’, there
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is no recourse. In spite of the understanding of law being a dynamic discourse, its constructions, especially those of the ‘good body’, have remained static. The judiciary, the police and the hetero-normative social order, all endeavour to maintain the status quo of the ‘good body’. The law also locates the ‘good body’ in specified spaces. If a ‘good body’ is violated in a space that does not meet the notions of the legal construct, it is not considered a violation at all. ‘What are the ideas and assumptions behind the denial of the right to perform certain sexual acts, even when conducted in private?’ asks Diane Richardson in her essay ‘Constructing Sexual Citizenship’. In response she says: Fundamentally important are institutionalised (hetero)sexual norms and practices, whereby heterosexuality is established as ‘natural’ and ‘normal’; an ideal form of sexual relations and behaviour by which all forms of sexuality are judged. Exclusions from the boundaries of sexual citizenship as practice, therefore, may be on the grounds of ‘natural’ disqualification. For example, the belief that the body should not be used for acts for which nature did not design it.…
She goes on to say: [A]lthough the law has traditionally been much less hostile towards sexual conduct between men and women in both public and private settings, fuelled by this view of what people should properly be engaging in sex for, it can prohibit certain heterosexual practices [as well]. (Richardson 2000b: 111)
Yet, when it comes to claiming her rights, the sexual anti-citizen has virtually no recourse but to the law. The moment she chooses to invoke the law, however, she subjects herself to a double jeopardy. She will first have to make her ‘deviance’ visible, getting ‘caught’ in the radar of the law and second, getting stigmatised because of that visibility. So, the ‘anti-citizen’, is not only a criminal because she engages in ‘bad sex’, but she is also one because of her capability (real or imagined) of performing ‘illegitimate sex’. The body of the sexual anti-citizen then gets legally constructed as the ‘bad body’. It is for these reasons that Nivedita Menon observes in her book, Recovering Subversion, that politics centring on the law might not deliver the promise of liberation that it is purported to have. The law assumes that justice and equality have a universal appeal and can be attained by ‘the fixing of identity and meaning’ (Menon 2004: 27, 28).
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Thus each time we fall back on the law to deliver justice for ‘violations’ of the ‘body’ we help revalidate conservative legal norms that construct ‘violable’ bodies as heterosexual only. The result is that several forms of ‘real’ bodies are either invisibilised or made criminal. Intersexed babies, Hijras, effeminates, and others, are either coerced into becoming ‘normal’, or declared as abnormal, or illegal. ‘The experience of self and the body validated as “real” acquires meaning precisely through interplay of contexts, a movement that is halted by the rigid codifications required by legal discourse’ (Menon 2004: 18–20). In his in-depth examination of case laws on ‘carnal intercourse’ in India, Alok Gupta points out how the operation of the law works on the basis of identifying the sexual anti-citizen (in this case the homosexual) by his ‘appearance and likelihood of committing sodomy’ (Gupta 2006: 4820). In judicial discourse it is the potential to engage in ‘unnatural’ sex by the defendant in a case of sodomy, or to have the ability to commit sodomy habitually that is the court’s consideration, rather than whether the act has actually taken place. This indicates a causal connection that the law makes between the ‘act of sodomy’ with certain kinds of ‘people’ who can potentially engage in it; this is, clearly a panoptic process of ‘identifying’ the sexual anti-citizen, and legitimising the arrest of homosexual men and transgender persons, on mere conjecture that their appearance suggests they indulge (have indulged) in ‘unnatural’ sex (Gupta 2006). Thus, the law on top of the ‘Panoptic’ watchtower tracks the lives of sexual anti-citizens and, on being identified on the basis of ‘appearance’, pushes them down Rubin’s sexual hierarchy, not only resulting in severe social embarrassment, but also restricting their access to justice seeking mechanisms like the police and court. In other words, a closer reading of Rubin’s hierarchy of sexual illegitimacy tells us that the calibration is based not only on ‘bad’ sexual acts but also ‘pervert’ sexual identities. This difference between ‘behaviour’ and ‘meaning’ is central to understanding the ways in which the sexual anti-citizen is defined in law. At best, law is schizophrenic in its approach to the anti-citizen. On the one hand, the language of the law merely imposes sanctions on certain kinds of sexual acts that are deemed criminal; on the other hand, in operation, it singles out anti-citizens, solely on the basis of their appearance and identity, and labels them as criminals. For
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example, a heterosexual couple engaging in anal sex, which is a crime according to Section 377 of the IPC, will never attract the sanction of the law. However, homosexual couples sitting together in a public park can be (and are) picked up by the police and harassed and, even, asked for sexual favours, ‘ironically committing the same crime that they want to stop’ (Gupta 2006), simply on the basis of the fact that they are ‘performing’ a non-hetero-normative role. The HIV/AIDS pandemic has greatly heightened the visibility of sexual anti-citizens on the homophobic and hetero-normative panoptic radar. Its emergence in India, in the late 1980s was initially seen as a blessing in disguise for the country’s sexually marginalised. So far they had been seen only as ‘deviants’ and ‘perverts’, criminalised by the law but from then on their status required they be looked at through the lens of public health as well. Once again, this ‘opportunity’ to talk about alternative sexualities publicly also created a double jeopardy for the sexually marginalised: their already stigmatised body and identity, was now also medicalised and, looked upon as a ‘vector’ of the disease, further stigmatising them. This heightened visibility, and their subsequent incarceration because of their criminalised identity, is understood to be the most effective way to arrest the spread of the disease. Thus, instead of guaranteeing access to knowledge about safe and responsible sexual practices, and discrimination-free HIV/AIDS testing, law has targeted gay rights groups which have been involved in disseminating HIV/ AIDS information—under the pretext that they are involved in running ‘underground sex rackets’/‘gay clubs’ and, even, that they are contaminating ‘Indian’ culture. In other words, the collectivisation of homosexuals through HIV/AIDS work has given rise to a paradoxical situation. Their hyper-visibility as ‘high-risk’ groups makes them, more likely to be at the receiving end of the violence of law. At the same time this collectivisation has been a most powerful way of articulating human rights issues around non-hetero-normative desires. This brings us back to the complex situation thrown up by the combined impact of the panopticon and the sexual hierarchy: on one hand, the sexual anticitizen is silenced because of her location on the ‘outer limits’ of the sexual hierarchy, while on the other, she is forced to ‘shout out and be heard’, turning her into a criminal. Arvind Narrain observes:
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[Sexual ‘anti-citizens’] stand excluded from the very framework of…[human] rights. For all practical purposes…[they] are invisible in the entire discourse on citizenship rights. The [otherwise] ‘absent’ figure of the…[sexual ‘anticitizen’], however, takes on a full blooded personality when it comes to the criminal law…[T]he absent figure of the [sexual anti-citizen] transmutes into the category of sexual offender who finds a prominent place as an offender against public morality in the dusty pages of […] [criminal law statutes]. (Narrain 2007b: 63)
The reason why Narrain refers to the pages of criminal law as dusty is because of the documented proof of Section 377’s under-enforcement in terms of rates of conviction—yet it is simply the existence of the law that criminalises the homosexual. Ryan Goodman calls this the ‘constitutive effect’ of law where, in spite of not being enforced, the law becomes a means for violent surveillance of the sexual anti-citizen by the police and, by homophobic private citizens. In Goodman’s analysis laws that criminalise non-hetero-normative behaviour and identity, even when they are judicially enforced, represent a ‘constructive delegation of governmental power’ to those ‘respectable’ citizens who use violence against the sexually marginalised, resulting in a de facto enforcement of these laws (Goodman 2003: 664–65). It is necessary to recognise that the panoptic gaze of heteropatriarchal laws further calibrates Rubin’s hierarchy, even on the ‘outerlimits’—and that is where new sexual ‘lower orders’ get created—and the realm of illegality, which was marked out for a homogeneously constructed sexual anti-citizen, gets further fragmented with the emergence of more ‘despised’ sexualities down the order. The identities of Hijras, Kothis and Panthis6 are part of this further fragmentation within the universe of the sexually marginalised. The application of the constitutional standards of equality and non-discrimination then become most complex, raising fundamental questions about the emancipatory potential of the rule of law.
THE ‘MAKING SAME’ GAME The entire discussion in the previous section about the criminalised and disadvantaged location of the sexual ‘anti-citizen’ in law can be countered, one might believe, by the application of the guarantees
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of equality and non-discrimination in the Indian Constitution. Notwithstanding its chequered history, Indian constitutionalism has given us enough reasons to repose our faith in the fundamental rights enshrined in Articles 14 (equality) and 15 (non-discrimination). Constitutional guarantees have been effectively used to expand their reach to protect many forms of human rights, and also to strike down laws that go against the tenets of equality and non-discrimination. Yet when it comes to dealing with the disadvantage that accompanies the liminal location of the sexual anti-citizen, even these pillars of Rule of Law seem to falter. There are three reasons for this: first, the premise of equality and non-discrimination in the judicial interpretation of constitutional guarantees is based on a ‘formal equality’ approach, as opposed to a ‘substantive equality’ one; second, the Constitution has been ineffective in responding to the intersectional forms of discrimination, where the incidence of disadvantage is most acute; and third, these ‘basic’ constitutional guarantees lay claim to a ‘universal truth’ about the operation of rule of law—where ‘the law is understood to be insulated from all kinds of influences, and to be above all ‘worldly’ considerations—and thus ignores the fact that such a claim resides in the ideal rather than the actual practice of law’ (Kapur 2005a: 109). Although law fails to deliver its idealised promise, it continues to declare its authority, which is claimed to be derived, in part, ‘through scientific legal method and rigor, and its projection as a unified discipline, with an internally coherent logic that is transcendent and divorced from the world’ (Kapur 2005a: 109). It is because of this illusionary reason that the law, in spite of criminalising them, continues to be used by the anti-citizens to claim rights. In the process of the anti-citizen’s encounter with the guarantees of equality and non-discrimination, however, the fissures in the constitutional armour of fundamental rights protection get exposed. This does not mean that these standards should be ignored—merely that a more strategic politics is required for engaging with the law. In this section, I will attempt to expose, what I call the ‘fallacy of equality’, where in spite of guaranteeing equal protection of the law, judicial interpretation reinforces ‘formal equality’, in effect maintaining the status quo of ‘substantive inequality’ in the lives of anticitizens. Any claim for substantive equality demands that the claimant ‘becomes same’, like those whose behaviour and identity conform to
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the notions of ‘respectable’/‘heterosexual’ citizenship. Thus, in the process of guaranteeing equality, the system seeks to negate the root of plurality of experiences. My arguments rest on the feminist legal theory insights from the debates on sameness/difference. I draw heavily on the analyses of feminist legal scholars, Ratna Kapur and Brenda Cossman to submit my contentions. Eluding Equality The equality clause of the Indian Constitution, Article 14, reads: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. What constitutes the right to equality under the Indian Constitution is equal treatment only in respect of the law—the meaning of law extends also to administrative rule and procedures that flow from legislations formulated by agents of the State. Unequal treatment meted out because of the existence of any other form of structural disadvantage is outside the scope of this provision, so are acts of unequal treatment carried out by non-State (private) actors. Any law found to be ultra vires Article 14, can be declared void ab initio, as per Article 13.7 The Preamble to the Constitution speaks of equality of status and of opportunity and this article gives effect to that principle. A plain reading of this article tells us that the Constitution imposes fetters on State action to ensure that it refrains from doing anything that can deny the ‘citizen’ (or subjects in the territory of India) two primary guarantees—that of right to equality ‘before’ the law, and equal ‘protection’ of the law. The first expression ‘equality before the law’, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any ‘special privilege’ in favour of any individual. Every person, whatever is his/her rank or position, is subject to the jurisdiction of the ordinary courts (Shukla, 2001: 37). The second expression, ‘the equal protection of laws’, which is a corollary to the first, secures equal protection in the enjoyment of their rights and privileges, without favouritism or discrimination, within the territorial jurisdiction of India. The juridical application of Article 14 operates on the basis of ‘ intelligible differentia’, which means reasonable classification. In other
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words, the equality guarantee does not require that the law treat all individuals equally. It has been interpreted by courts as a prohibition against unreasonable classification. As was held in the case of Chiranjit Lal Chowdhury vs Union of India (AIR 1951 SC 41), the guiding principle of the article is that all persons ‘similarly circumstanced’ shall be treated alike, both in privileges conferred and liabilities imposed. The rule is that ‘like should be treated alike’ and that ‘un-like should be treated differently’. This understanding of equality clearly follows the formal equality approach where equality is understood as sameness. In effect, only if you can become same will you be treated equally. To decide whether one qualifies to be ‘same’ the court has to classify the relevant groups claiming equality, for comparison. If it is established that the classified groups are different, then such difference will be the justification for diferential treatment. Thus, judicial interpretation suggests that when classified groups do not qualify to be the same, or similarly situated, they do not qualify to be equal either, even though their differences can be a product of historic or systemic discrimination. ‘Thus, the first step in determining whether Article 14 has been violated is a consideration of whether the persons between whom discrimination is alleged fall within the same class. If the persons are not deemed to be similarly circumstanced, then no further consideration is required’ (Kapur and Cossman 1993: 2–3). For instance, let us consider the case of Section 66 of the Factories Act, 1948 where women are prohibited from working in factories during the night on the ground that they are vulnerable to violations during nocturnal hours of work. If one were to challenge this section as violating Article 14, because it treats men and women unequally, such a challenge would fail because, according to the doctrine of ‘intelligible differentia’, the classification between male factory workers and female factory workers is reasonable and thus, differential treatment between them is justified in law. The same situation arises when we consider Section 377 of the IPC: challenge to this law on the ground that it violates the guarantee of equality would fall flat, since differentiation between ‘homosexuals’ and ‘heterosexuals’ would be valid, thus justifying the differential treatment—in other words, a perpetuation of substantive inequality. This argument can be extended to ‘anti-citizens’ of other kinds as well: disabled persons, the wandering mentally ill, the migrant slum dweller, etc.
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The means for the anti-citizens then, to make use of this article to claim their right to equality will be to ‘become same’, like the classified group, in comparison to whom they are been treated unequally. It is necessary to recognise that law is premised on standards of normativity—and in this case, hetero-patriarchal normativity. In such a situation, the sexual anti-citizens will only qualify for equality to the extent that they can conform to the normative standards of compulsorily heterosexual, pro-creative, non-commercial sex. This is a classic replay of the Foucauldian ‘panoptic’ casting its disciplining eyes of surveillance on Rubin’s hierarchy of sexualities. Those sexual ‘anti-citizens’ who are on the ‘outer limits’ of Rubin’s hierarchy, desirous of availing of the equal protection of laws, must conform to being ‘like’ the ‘respectable citizens’, become part of the ‘charmed circle’, to be considered as worthy of protection in the first place. One can argue that keeping to the trend in which Article 14 has been interpreted, the ‘outer limits’ and the ‘charmed circle’ would be accepted as reasonable classification by the courts, justifying the differential (read: discriminatory) treatment meted out to homosexuals through Section 377 and, not to exclude a whole range of other basic citizenship rights whose abrogation stands justified because of the sexual anti-citizen’s status as the differently (read: pervertly) situated. Their difference (from hetero-patriarchal norms) then becomes the reason for their exclusion from enjoying the fundamental right to constitutional equality. Further, reasonable classification does not consider that there can be differences between those considered to be ‘similarly situated’—in the sense, as I had mentioned before, that the ‘charmed circle’, or the ‘outer limits’ are not homogenous collectives. The result is that it essentialises the identities and behaviour of those who form part of a reasonably classified class. How would the constitutional guarantee to equality respond to a situation where there is a Dalit homosexual woman who claims that she is at the receiving end of discrimination from other Dalits, as a woman and a lesbian? Article 15 extends the equality guarantee of Article 14, by providing for the right against discrimination on the basis of religion, race, caste, sex and place of birth. Forms of discrimination that fall within the purview of Article 15 are based on disability, liability, restriction or condition imposed on the basis of the above-prohibited grounds.
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Article 15 reads as follows: 1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to: (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 3. Nothing in this article shall prevent the State from making any special provision for women and children… (emphasis added). 4. Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.8 5. Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.9
Some inferences towards the possibilities of exclusionist interpretations of Article 15 appear even from a plain reading of the provision. In Clause 1, sexuality/sexual preference/sexual orientation does not find mention as a ground for discrimination. Thus all the manifestations of discrimination as enshrined in Clause 2(a), will also not apply in case of sexually marginalised persons, creating a constitutional culture of homophobia. The imposition of any ‘disability, liability, restriction or condition’ on sexual anti-citizens, on the basis of their sexuality, does not qualify as discrimination at all within the scheme of the Constitution. Their access to public places, if circumscribed by law, or executive/non-state actor—as has been the case on many occasions—will not draw the protection of the non-discrimination guarantee of the Constitution. The contested perceptions of equality and non-discrimination within the context of the Constitution get further complicated when we try to understand if the constitutional mandate in Article 15 captures
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the intersectional nature of discrimination and disadvantage. It is necessary to note that the grounds stated in Article 15(1) are preceded by the word ‘only’. In the interpretation of this word by the Supreme Court in Anjali Roy v State of West Bengal (AIR 1952 Cal. 825), it was noted that if discrimination is found to exist on grounds other than those enumerated, then there is no violation of Article 15(1). Even discrimination on the basis of sex, coupled with discrimination on other non-enumerated grounds, would not constitute violation (Kapur and Cossman 1993: 11, 12). Thus, the courts are not even permitted to progressively interpret the grounds under Article 15(1) to include sexuality. Neither can judicial interpretation capture the reality of disadvantage that any ‘anti-citizen’ might face because of being at the receiving end of multiple and intersectional forms of discrimination. However, a reading of Clause (3)10 seems to suggest a move from the otherwise formal approach to equality to that of substantive equality. The substantive equality approach moves beyond looking at equality, merely as a guarantee lettered in law, to one that looks at the actual impact of the law, to do away with substantive inequality. The primary aim of a substantive equality approach is not to harp on the guarantee of equality as being pegged on an understanding of sameness and differences, but one that ‘takes into account inequalities of social, economic and educational background of the people and seeks the elimination of existing inequalities by positive measures’ (Singh 1976: 300, quoted in Kapur and Cossman 1993: 3). On the face of it, Article 15(3) mandates the state to make special laws for ‘women’, in effect, discriminating in their favour. A stipulation of this kind suggests that the provision does take into account the historical and systemic processes through which discrimination against women has been effected, and thus makes the state accountable for doing away with it through ‘protective’ and proactive laws. However, in the absence of a substantive equality approach in the judicial interpretation of Article 15(3), there is little consideration of whether the laws actually ‘protect’ women, or they create ‘protectionist’ measures to safeguard the honour and chastity of ‘good women’, thereby protecting ‘the appropriateness of the underlying rationale for the ostensibly protectionist legislation’ (Kapur and Cossman 1993: 7). Similarly, the use of Clause (3) will fail to protect lesbian women as a special category of women.
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THE SEXUAL ANTI-CITIZEN AS CRIMINAL AND JUSTICE-SEEKER Debates on sexuality and law in India have moved between the matrices of violence, regulation, criminalisation and desire. A major part of this discussion has happened because of the feminist engagements with law, especially on issues such as rape and sexual harassment. However, talk of desire and pleasure has remained marginal to the feminist project. This is where queer activism has opened up new avenues for engaging with the law. In their attempt to push the limits of legal recognition for non-hetero-normative conduct, identities, and relationships, the sexual anti-citizen has been singularly targeted as the ‘pervert’ criminal. They have been termed ‘criminals’ because of being potential justice-seekers as well. This targeted criminalisation of the sexual ‘anti-citizen’ bears relevance in the context of the compounded operation of Foucault’s panoptic gaze and Rubin’s sexual hierarchy. In this section I will narrate incidents of homophobic and sex-phobic violence which have derived legitimacy because of the existence of a law like Section 377, which continue to be on the statute books in spite of not meeting the constitutional mandate of equality and non-discrimination. This law clearly perpetuates a culture that denies sexual anti-citizens the constitutional guarantees, under Articles 14 and 15. Section 377 of the IPC has been central to the rights claims of erotic minorities in India. Although there are debates about whether the repeal of Section 377 should be primary on the agenda of the Queer Movement in India, there is an unequivocal consensus about the fact that this law is at the root of maintaining a culture of homophobia that justifies violence against sexually marginalised persons by both state and non-state actors. Section 377 of the IPC penalises sexual acts ‘against the order of nature’: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
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It is pertinent to note that the section does not criminalise homosexuality per se. What the law regulates is any form of bodily intercourse that does not conform to being peno-vaginal in nature. This law is an import of Victorian/Judeo-Christian morality and attempts to criminalise all forms for non-procreative sex. What is also of concern is the fact that the question of consent is inconsequential when it comes to sexual acts ‘against the order of nature’. Section 377 criminalises voluntary intercourse, thereby meaning that this law actually has no human ‘victim’ to protect and that as criminals, sexual ‘anti-citizens’ are denied the exercise of any kind of right to self-determination—to express their sexuality, and claim the rights that flow from the Constitution. What Section 377 protects is normative standards of ‘acceptable’/‘respectable’ sexual behaviour that uphold conservative notions of culture, morality and traditions. Further, nowhere in the IPC has ‘natural’ been defined to understand what would qualify as unnatural. Though the provision appears to be neutral on its face, there has been enough documentation to establish that the section is used primarily to harass and extort money from those who do not fit into conservative sexual roles, primarily, gay men, Hijras, Kothis and men who have sex with men (MSMs). Further, the section provides the police with the legitimacy to arrest, blackmail, sexually abuse and ‘expose’ any person they suspect of having the potential to violate Section 377 (PUCL-K 2001, 2003; Voices against 377 2004). In the juridical history of Section 377, it has been documented that between the years 1860 (when the IPC was codified) and 2000, there have been a total number of 46 convictions, out of which only one was for consensual male-to-male sex. This was the case of D.P. Minawala vs Emperor in 1935 (AIR 1935 Sind 78). All other convictions have happened in cases of child sexual abuse. Yet, the actual impact of the section has been devastating, to say the least, on sexual minorities, where they have been arrested, tortured and harassed solely on the ground of having the ‘capability’ of engaging in ‘unnatural sex’; in spite of the fact that the section applies against all forms of non-procreative sex, irrespective of whether homosexuals or heterosexuals are engaging in it. This phenomenon is reflective of the position of privilege that heterosexuality has in the eyes of the law, thus escaping its sanction. Here are a few instances of homophobic violence that capture the ways in which the mere existence of Sec. 377 has terrorised the lives of sexual minorities in India.
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The Lucknow Case Naz Foundation International (NFI) and Bharosa Trust (BT) are NGOs in Lucknow who have been working on issues of sexuality, safe sex and HIV/AIDS primarily with gay men and MSMs. They engage in producing awareness-raising material on these issues, and provide a safe forum for the sexually marginalised to meet and interact. They also provide technical support for the promotion of male sex and reproductive health in South Asia. In July 2001, acting on a complaint by a person who filed an FIR at the Hazratganj Police Station, alleging that he was sodomised, and that these NGOs were running gay clubs, the police raided their offices. The police seized videos, magazines and material used for disseminating information on safe sex practices. The director of NFI and the executive director of BT, Arif Jafar, as well as other members of the staff, Mohammad Shahid, Sudish Kumar Singh, Parmeshwar Nayar and Pankaj Kumar, were arrested and detained. They were charged under Section 377 along with other charges of criminal con-spiracy, abetment, and obscenity, alleging that the material was pornographic, though the NGOs claimed that the materials were purely educational. The police claimed that the accused has been arrested for ‘watching films on a television screen showing men committing sodomy with each other’, though no evidence was produced. Yet their bail application was rejected by the lower court, where the magistrate stated that they are a ‘curse to society’ because they were encouraging homosexuality. Similarly, the sessions court judge also denied bail, holding that the defendants were ‘polluting the entire society by encouraging young persons and abetting them for committing the offence of sodomy.’ Finally, the four accused were granted bail after an appeal to the Lucknow High Court. They were also made to undergo medical examination to find out whether they had actually committed an offence under Section 377 (Gupta 2006: 4820; Kapur 2005b: 80; Rajalakshmi 2001). The whole issue of denying the accused bail can be linked to the prejudice of the courts towards gay people. The activists were released and all charges under Section 377 against them were dropped only after 45 days of a vigorous national and international campaign.11 Confronting the challenge of being a lawyer for queer communities in India, with reference to this particular case, Arvind Narrain notes:
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The very question of getting the accused released on bail seemed to become linked to what the Magistrate thought gay people did. The law with respect to bail was not a relevant factor when it came to this case. Without even a perfunctory analysis of the relevant provision of the Criminal Procedure Code, which statutorily mandated the reasons for not granting bail [under Section 437] we went instead by his perceptions of homosexuality…[which] seem to have been the reason for…[rejecting] bail rather than the relevant statutory provision. (Narrain 2007a: 56)
This homophobic ‘operation’ by the police and the response by the courts is clearly an illustration of how Section 377’s panoptic gaze criminalises the homosexual, even when no crime under Section 377 has been committed. ‘It shows that there are no discourses about queer sexualities in society other than the prejudices, myths and misconceptions that have been perpetuated by the mere existence of Section 377’ (Narrain 2007a: 56). The Kolkata Incidents The queer community in West Bengal was the first in India to organise the Rainbow Pride March in Kolkata, and still continues to do so, where sexually marginalised persons from all walks of life participate in celebration of diversity and plurality of ideas, identities and desires. There has never been any visible resistance from the state, or people in general, during the march that takes places on 26 June every year, which marks the anniversary of the historic Stonewall Inn Riots.12 This, however, is simply reflective of a form of ‘passive toleration’ since the organisers of the Pride March generally portray the event as a cultural one, watering down its subversive political potential to a certain extent. On 5 December 2005, a group of six queer activists/health workers/and non-heterosexual individuals were hauled up, physically manhandled and abused, threatened and intimidated, their belongings taken away, their clothes ripped and torn from their bodies within the Lake Police Station in South Kolkata. The incident began when three members of an organisation, the Pratyay Gender Trust, who were on their daily duty putting up HIV/AIDS posters, near the Calcutta Rowing Club, were teased, physically harassed and then beaten up by two unidentified youths around 8 pm on that day. The members (Three Kothis) approached the
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police on duty. The police were perhaps too keen to ‘settle’ the matter on the spot, repeatedly asking these individuals to ‘drop the case’. Thereafter, the assault victims approached the Lake Police Station to lodge an official complaint. Since previous experience showed that the police either ignored, or took no action on complaints for such crimes, three other members of Pratyay also reached the Lake Police Station to support their colleagues. Still the police refused to lodge a complaint. Instead, on coming to know that the complainants worked on marginalised sexuality issues, they started abusing the workers, using slang language. The Pratyay members were physically pushed and shoved, inside the inner room of the police station. When the workers tried to reach out to friends and colleagues for help, their mobile phones were forcibly snatched away by the police. When the officer-in-charge (OC), Mr Sukumar Chakrabarti, arrived at the station, he not only denied them a chance to voice their concern but treated them as if they were criminals. A convenient version was soon doing the rounds within the police station, falsely implicating them; spreading the rumour that one amongst the original three had accosted these two ‘innocent’ youth, trying to allure them. They were then threatened with immediate arrest. Reports from other queer activists, present in the police station state that when—on being threatened with arrest—some of them raised the question of rights with the OC, he retorted: ‘Arse f*** your rights!’ The homophobic hatred implicit in this remark must be seen as derived from the existence of Section 377. Anindya was there with the 3 Kothis at the Police Station, and here is his testimony: Upon protesting, the OC, Mr Sukumar Chakrabarti, who ordered the arrest, without bothering to offer any explanation—either to the degrading manner in which he spoke or to the reason behind why they, who had suffered a wrong, should be the ones to be arrested, threatened us and forwarded physically as if to assault us. His abuses notwithstanding, when few of them voiced protest at the manner in which the entire affair was being dealt and to the treatment being offered to us—he really turned extremely aggressive. Seeing some of us who had mobile phones trying to contact for help, the cops wasted no time in pushing all of us into the police station lock-up. Fifteen to twenty policemen teamed up and started pushing, shoving and jostling us, physically, by force. When we tried to resist this complete unwarranted move, we received the worst physical excesses and highhandedness. Our shirts and dresses were torn—necks and arms twisted. Mobile phones and bags forcibly taken away—presumably
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as a measure to block any efforts at being able to contact for help. The next three hours were harrowing—cooped up in the small room of the police station, every attempt at reasoning and rational dialogue failed. A statement was taken from the two men accused who only indicted us in the crime. The incredulous and harrowing experience for us ended nearly five hours since the events unfolded. We were forced to write a letter, stating that ‘we promise never again to commit anything of the nature of violence that we did’ in return of our freedom from police custody. Needless to say, this letter was not written by us. (personal communication with the author) 13
The narrative clearly points at the kind of license that police derive from Section 377, based solely on the mannerisms of the Kothis. The standard rights that should apply to any person approaching the police, as enshrined in the Supreme Court judgement of D.K. Basu vs State of West Bengal (1997 1 SCC 416), should have ideally applied to the Pratyay activists as well. Yet, they did not, simply by the virtue of the fact that they were ‘identified’ as sexual ‘anti-citizens’. Few days later, on 9 December, human rights activists, feminists, health workers and representatives of queer rights groups gathered to protest outside the Lake Police Station and submitted a letter of protest and condemnation to the OC. When a group of seven representatives went inside the police station, the OC initially refused to appear and accept the letter of protest. Predictably, the charges of harassment and abuse were denied. It was found that the police had not recorded the complaints of the six health workers/activists. After an almost hour long meeting, the OC finally admitted, and apologised for the harassment and abuse inside the police station. He further assured the delegation that they would be provided protection in their work. The hollowness of his assurance was exposed almost instantly. As the delegation was coming out of the OC’s room, two police officers made a sexually derogatory remark against the demonstrators. A second letter of protest was lodged with the police for this incident. A letter was also sent to Shyamal Sen, Chairperson, West Bengal Human Rights Commission, but there has been no official step taken by the Commission against this incident. On 31 March 2007, two years after the Lake Police Station incident, in a brutal homophobic attack against members of Pratyay again, 12 unidentified men attacked four Kothis, severely injuring one, inside a prominent South Kolkata park. When the Lake Police Station was approached the next day by Anindya and others to lodge a complaint,
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instead of registering an FIR they only recorded a General Diary (GD) report. They expressed surprise at the incident, saying that the park was a ‘safe zone’, and that crime rates had dwindled. In other words, they were trying to portray the attack as a ‘stray incident’. Lodging a GD, instead of an FIR clearly reflects the attitude of the police, not giving the case the importance that it was entitled to in law. It also, in effect, absolved them of the responsibility to accountably investigate into the complaint. That the complaint was noted, even as a GD, was only because of the outcry that the 2005 incident had provoked. In a more recent incident, on 9 March 2008, a mob of approximately 30 people attacked Kothis outside Menoka Cinema Hall near the Rabindra Sarobar area, in the evening.14 ‘Raima’ and ‘Swapan’, two Kothis, met near the cinema hall, and were buying some snacks from a roadside eatery. Two men standing at the shop started making lewd comments at them. An argument broke out and the men pounced upon Raima and Swapan, abusing them and beating them up. Raima and Swapan cried for help attracting the attention of several other Kothis, who were nearby, since the area—a public park—is a popular hangout for people. Deep, another Kothi, rushed to the rescue of his friend and resisted the two men who were beating Raima and Swapan. On being prevented, the two men turned their attention on Deep and punched him on the face. Deep retaliated and punched back at one of the assailants, in a bid to save himself from being attacked. In response, the two men, who were from the locality, called out for the local boys. A mob of about 30 people pounced upon the Kothis. The mob accused the Kothis for polluting the area by constantly having anal sex. Severely injured, Raima, Swapan and Deep were rushed in a critical condition to the Emergency Ward of MR Bangur Hospital. Doctors advised them to be admitted as in-patients but Raima and Swapan, who were extremely traumatised by the entire incident, refused, fearing a backlash from family members as well. While a formal complaint was lodged with the Lake Police Station late in the night, eyewitness reports say that police constables,, who were on the beat duty at Menoka Cinema turned a blind eye to the incident, and did nothing to intervene and stop the violence. The question to ask is whether the police would have (not) responded in this fashion if the incident had concerned ‘normal’ citizens being beaten up by a mob.
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The Rishra Book Fair Incident In January 2005, ‘Amitie’, a collective that works on issues of alternative sexualities and HIV/AIDS in Chandannagore, West Bengal put up a stall at the Rishra Book Fair. Amitie is a registered organisation, which was established in February 2004 and receives funding from the Ministry of Health and Social Welfare, Government of West Bengal, and the West Bengal State AIDS Control and Prevention Society, to carry out awareness building work on HIV/AIDS for designated ‘high risk’ groups. At the stall they had displayed posters and pamphlets on issues of homosexuality, safe sex and HIV/AIDS awareness and were selling magazines and other literature on issues of sexual diversity, health and rights. The fair started on 8 January and people were also visiting Amitie’s stall. Suddenly, on 11 January, the fair organisers came and directed Amitie members to shut down the stall and leave the venue, and threatened dire consequences if they did not comply. Amitie members tried to reason with the fair organisers, and even requested that they will not sell any of the publications, and so be allowed to sit at the stall. In the evening of the same day the fair organisers came again, and forcibly threw the Amitie members out of the fair premises. They alleged that public sentiment was hurt because of the ‘obscene’ materials that were on display at Amitie’s stall. After this arbitrary action, Amitie registered a General Diary at the Rishra Police Station, stating that they were forcibly evicted from the Rishra Book Fair and their stall was shut down, even though they had paid for the entire period of the fair. The police took no action, forcing Amitie to move the High Court of Calcutta under Article 226 of the Constitution of India, which guarantees the right to constitutional remedies. The claim of the writ petition was based, inter alia, on the freedom to carry on any trade or profession (Article 19.1.g), the right to equality before the law and equal protection of the law (Article 14), and the right to life and personal liberty (Article 21). The petition demanded that the Court passes an order asking the fair organisers to restore Amitie’s stall and to allow them to carry out their activities at the fair, without any hindrance. In his judgement Justice Soumitra Sen mentioned that he has gone through all the leaflets and posters of Amitie that were put up at the stall and has not been able to figure how they addressed the
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issue of HIV/AIDS. Instead, he stated, that the pamphlets and posters had information that attempted to remove people’s misconceptions about homosexuality. He went on to say that Amitie was at liberty to propagate their view regarding homosexuality, however, since the permission to put up the stall was given to Amitie on the ground that they will only create awareness about HIV/AIDS, the fair organisers were right in asking them to shut down the stall, as the posters and pamphlets had nothing to do with HIV/AIDS. The petition was dismissed by the Court without offering any costs or compensation to Amitie. The above incident goes to prove how tabooed sexuality still is, even within spaces like book fairs, which are supposed to celebrate the freedom of speech and expression; and that the understanding of HIV/AIDS has a highly pathologised notion, both within popular understanding and judicial imagination, which is why it was so difficult for the judge to make connections between homosexuality and HIV/AIDS. The NHRC and AIIMS Case In 2001 a petition was filed with the National Human Rights Commission (NHRC) in the case of a patient from the All India Institute of Medical Sciences (AIIMS), who was being treated at the AIIMS psychiatry department for the past four years to cure him of his homosexuality. When the patient approached Naz Foundation (an organisation in Delhi working on MSM issues), they filed a complaint with the NHRC alleging psychiatric abuse, because the patient reported experiencing serious emotional and psychological trauma and damage, as well as a feeling of personal violation. The NHRC admitted the complaint (No. 3920), but finally rejected it. On being asked why the NHRC refused the complaint, the Chairman responded by saying: ‘To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Section 377 was against it. You advised that one should strive to get rid of the law but nothing could be done till it was repealed.’ This opinion seems to be buttressed by other reported opinions within the NHRC. As one source put it, ‘Homosexuality is an offence under IPC, isn’t it? So do you want us to take cognizance of something that is an offence?’ (Narrain 2003a: 120; Voices against 377 2004: 14).
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Quite clearly, in every incident discussed above the panoptic ‘constitutive’ effect of the law has effectively turned every sexual anticitizen—who has attempted to seek justice—into a criminal. The sexual anti-citizen as justice seeker has still persisted in challenging the law. Challenging 377 The issue of homosexuality and its criminalisation under Section 377 got publicly articulated because of the spread of the HIV/AIDS pandemic, where people engaging in same-sex activities were assumed to be the primary vectors of its spread, along with sex workers. In April 1994, a team visiting Delhi’s Tihar Jail found that there was homosexual activities between prisoners, and recommended that condoms be made available. The then Inspector General of Prison, Kiran Bedi, was opposed to the distribution of condoms on the ground that it would promote homosexuality. In the same year by the ABVA vs Union of India, Civil Writ Petition of 1993, the Aids Bhedbav Virodhi Andolan (ABVA), a human rights group, filed a public interest litigation (PIL) in the Delhi High Court challenging the constitutional validity of Section 377. The petition argued that the section violated Articles 14, 15, 19 (right to freedom of speech and expression) and 21 (right to life and liberty, including privacy) of the Constitution. This petition never came up for hearing. It took another seven years for the Naz Foundation, a group working with MSMs and other sexually marginalised people, to file a comprehensive petition in the Delhi High Court by the Naz Foundation vs Union of India, Civil Writ Petition of 2001, asking for the section to be ‘read down’, decriminalising adult, private and consensual sex. By this time, sexual identities of lesbians, gays, bisexuals and transgender (LGBT) had become lot more visible, with AIDS intervention addressing them as high-risk groups. This visibility also led to incidents where NGOs working with sexual ‘minorities’ got targeted for promoting homosexuality under Section 377.15 It is interesting to note that the law reform campaign undertaken by LGBT groups in India, similar to the women’s movement, looked at law reform as the final emancipatory tool for ending oppression and discrimination, based on sexual identity. Over-reliance on the law led to the government affidavit, demanding the dismissal of the petition.
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The affidavit remarked, ‘Section 377 has been applied to cases of assault where bodily harm is intended and/or caused and deletion of the said section can well open flood gates of delinquent behaviour and be misconstrued as unbridled license for the same.’16 The government further contended that Section 377 is the only provision in the IPC, which can be used against child sexual offenders; thereby pitting child rights groups against sexual minority rights groups. The final word of the government was: ‘Objectively speaking, there is no such tolerance to practice of homosexuality/lesbianism in Indian society.’ What is most surprising about this petition is that the National Aids Control Organisation (NACO) which has consistently been forthright about doing HIV/AIDS work with MSMs, and would thus be assumed to be sympathetic towards the rights concerns of queer communities, was a co-respondent with the State, supporting the continuance of Section 377, despite knowing well that this law is the primary impediment to doing HIV/AIDS work with queer communities. Apart from these submissions in the affidavit, three other submissions by the government become extremely relevant in the context of our discussion. The affidavit while arguing the need for Section 377 to tackle the menace of child sexual abuse, mentions, ‘It [Section 377] has rarely been used to punish homosexual behaviour.’ If analysed in the light of Goodman’s ‘constitutive’ approach argument, this explanation by the government clearly follows the trope where nonenforcement of the law can never be considered to play the role of constituting homophobic societal attitudes that criminalise queer sexualities. Stretching the non-enforcement argument, the government affidavit also raised the issue of locus standi of the petitioner, since this was a writ petition, filed under Article 226 of the Constitution. Locus standi refers to the legitimate standing of the petitioner to be able to file the petition. Starting from the ‘non-enforcement’ argument, the government stated that since there were no ‘real’ victims of the misuse of Section 377, Naz Foundation had no locus standi. This also became the reason because of which the Delhi High Court finally dismissed the petition. What the government as well as the courts completely missed was a long-standing constitutional jurisprudence, since the days of Indian judicial activism that had progressively relaxed the rule of locus standi to allow organisations and individuals to represent collective
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groups of disadvantaged people. What also escaped the imagination of the court was the fact that the adverse impact of Section 377 cannot be gauged by merely looking at the number of convictions under the law, excluding the wide-ranging violence that the law legitimises and perpetuates—through state and private actors—by singularly targeting sexually marginalised persons. Clearly this ground for dismissing the petition violated queer people’s right to constitutional remedies, under Article 226. The third concern emerges from the argument that Section 377 does not violate Article 15 of the Constitution. Using the formal equalitybased protectionist approach to turn the petitioner’s argument around, the government affidavit said that since Section 377 protects women and children from sexual assault, it actually serves the responsibility put on the State under Article 15(3). Despite the fact that the Law Commission of India, in its 172nd Report had recommended the repeal of Section 377, and also that the government has made commitments in international fora to work and protect MSMs and other marginalised sexualities from HIV/AIDS; still the State chose to turn a blind eye to the discrimination faced by queer communities. As if they do not exist at all, or that their suffering did not deserve attention—clearly a process of calibrating pain and denying them the right to full and equal citizenship rights under the Constitution. Thankfully, on appeal to the Supreme Court, a landmark turn for gay rights in India occurred when a four-judge bench, comprising Chief Justice of India Y.K. Sabharwal and Justices C.K. Thakker, R.V. Raveendran and Lokeshwar Singh Panta, sent the case back to the High Court on 3 February 2006—close to two years after it dismissed the Naz Foundation PIL—ordering that the ‘matter be examined in detail’, and asking that the question of law involved in the petition be considered on merit and the constitutional validity of Section 377, criminalising same-sex relations, be decided in keeping with the changing nature of society. The bench also gave permission for an urgent application before the Delhi High Court for speedy disposal of the case. The government is yet to respond. A closer look at the Naz Foundation petition also reveals a concern at the other end of the spectrum, namely the demand of the petition to read down the section and de-criminalise consensual, adult, private sex. Though ostensibly representative of the entire community of sexually marginalised, the petition openly attempts at giving
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legitimacy to private sex, and at the same time excludes many people who can, or would like to, engage in acts of sexual intimacy in the public. The violence of the law can only get perpetuated over queer desire for law reform of this nature. In effect what plays out is a process through which the ‘outer limits’ of Rubin’s sexual hierarchy get further calibrated. Using the Lens of ‘Political Society’ In spite of criminalisation by the law, and the culture of homophobia, articulation of sexual rights over the past decade in India has reached an unprecedented visibility with more and more ‘queer’17 people ‘coming out’, using the space created by media representations of alternative sexualities, an increasing ease with which people discuss sex in general, a greater awareness of sexuality related issues within academic circles and, of course, because of HIV/AIDS. These developments can be thought of as an outcome of our encounter with modernity—that has allowed queer people to use the currency of the English language, the medium of film, the spaces within universities, and networking with international queer rights groups—to articulate a set of demands that are powerfully placed within the discourse of universal human rights. The engagement with the State to repeal Section 377 has also primarily been on the grounds of ‘privacy’, a category that is intrinsic to the modern understanding of freedom and rights. While these developments have been extremely important, it is necessary to recognise the fact that the ‘queer’ is a category of upper class, English speaking, elite people who identify themselves as sexually marginalised. In consequence, though India’s queer universe has expanded manifold, the Hijra community—their position on the sexual hierarchy being far below queer people because of the intersection of class and caste with their sexual identity—still remains on the periphery of this universe. It is activism against Section 377, HIV/AIDS interventions, queer helplines and solidarity groups, started by educated, sophisticated queer individuals and groups have forwarded queer agendas. Yet the activism’s disconnect with the Hijra community’s existential exigencies has remained intact. Equally important questions of livelihood, food, education, housing, access and attempts by Hijras to negotiate and claim these,
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have remained peripheral to the agenda of sexual rights claims. Even the conceptualisation of ‘Sexual Citizenship’ has operated within the dominant triad of Gay-Lesbi-Bi identities. The location from which queer activists engage with the state for their rights is civil society, while the location of the Hijras, as similar such caste/class mediated sexual identities operate from the location of ‘political society’. In his conceptualisation of these locations, Partha Chatterjee points out: Civil society is typically about a kind of free associative, modern bourgeois life. It is quintessentially bourgeois politics. The challenge…in most of the non-Western world is that most people are not bourgeois. What sense does it make to use the forms of modern law and modern administrative procedures on populations that cannot survive if you simply insist on protection of private property, equality of law, freedom of contract and these kinds of things? Most of these people would simply die or they would rise in revolt and break down the whole structure. (Shaikh) (original emphasis)
According to Chatterjee, the engagements of ‘populations’ (not citizens) with the state, to claim rights guarantees, happen out of the locations of political societies. These spaces are inhabited by people who do not have the privilege of taking their citizenship status for granted, and are constantly negotiating through everyday practices and processes to confront the violence of State action through laws that criminalise them. While on the other hand, queer people who are part of civil society, though criminalised by the law for their sexual identity/behaviour, still have the privilege of class, caste, location, education and language. If we are to resurrect an engagement with the state for claiming sexual citizenship, then ideally the civil society and the political society of India’s sexual anti-citizens need to come together. Fortunately, that alliance has been built around the legal claim for repealing Section 377 of the IPC, which has adversely impacted the rights of queer people, as well as Hijras.
The Politics of Visibility/Privacy From the above discussion, there are two definite strategies that one can identify to understand the working of the queer rights movement in India. On the one hand is an attempt to create social and cultural
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visibility of queer people, on the other is the political challenge to the archaic Section 377 that criminalises all forms of non-procreative sex, on the ground of the right to privacy. While these two strategies have closely interconnected objectives, they have also been fraught with tensions. The demand for privacy is meant to emphasise that what people do in private spaces—for instance, with whom they have sex—is not the business of the state and cannot be the reason on the basis of which people get discriminated in their public life. As such, it cannot be grounds for criminalising either the acts or the persons engaging in them. It was on the basis of the right to privacy that the United Nations Human Rights Committee, in the 1994 case of Toonen vs Australia, declared that anti-sodomy laws infringe upon human rights. Privacy was also the basis for challenging the controversial 1993 ‘don’t ask, don’t tell’ policy’, utilised by the armed forces in the United States. As has already been discussed, at the heart of the visibility–privacy strategies is the understanding of how the law and conservative sexual morality create a distinction between ‘good sex’ and ‘bad sex’. Good sex is located in the private (the realm of family and marriage) and thus deserving of state protection. Bad sex is forcefully made public through the operation of the criminal law, like an expose. Section 377 which criminalises all forms of non-procreative sex, which can include oral or anal sex even between heterosexuals, yet gets used only in the case of non-heterosexuals. It is this conservative working of the boundaries, between the public and the private that the visibility–privacy strategy attempts to challenge. While on the one hand, visibility can be looked at as having the potential to bust the legally enforced public–private divide, on the other hand, it is not necessarily the all-encompassing solution that it is often purported to be. The first task is to weigh the potential political ability of visibility to confront the accepted norm of heterosexuality. The second is to measure the costs of this visibility, which gives rise to a series of questions: who is benefiting from this process of increasing visibility, and who is losing out? what price does visibility incur? Perhaps most importantly, does visibility really enhance the potential of gaining equality? Further, we need to ask whether the claims for visibility and privacy could work counter to each other, in effect derailing the very objective of rights and recognition for queer people.
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Recently, on 4 February 2008, the police in Bombay raided a private party and arrested six men, and seized liquor bottles and condoms. The police crackdown was planned because details of the party was allegedly advertised on a gay website and circulated through SMS. What does an incident like this, and the ones in Lucknow and Kolkata (discussed above) tell us? All those who were ‘busted’, were paying a price for making themselves visible, for making a political statement. Clearly, one of the major perils of visibility is the resultant infringement of the right of free speech and expression. Interestingly, it is not information on HIV/AIDS or safe sex that is necessarily under the scanner of the law, but it is information that ‘promotes’ (read: makes public) homosexuality that transforms their ‘high risk’ health status into ‘high risk’ criminality. Also, the issue of queer visibility does not merely follow the public–private trope—the fact that a private party was busted, and the private premises of an organisation raided, suggests that in the eyes of the law, those were public incidents that had to be clamped down upon. In case of the book fair, it was an attempt at erasure of public visibility, in effect shrouding it under the cloak of silence, or privacy. Thus, both visibility and privacy can get used as justifications to de-legitimise and criminalise queer collectivisation, association and expression. One way to read the incidents is to consider the repercussions of their visibility as a price worth paying. The other way of reading it is to ask whether the political plot of gaining recognition through visibility has gone awry, because it has become inextricably linked to issues of health, hygiene, morality and respectability, links that have also been reinforced by the queer movement. One could say that an almost singular engagement with the repeal of Section 377 by the movement and accompanying claims around the right to privacy has led to privacy and visibility working against each other. This has led to overshadowing the in-built processes of exclusion within the queer movement. A similar complication with the visibility argument goes with the Naz Foundation petition challenging Section 377 discussed above. The issue is not whether the petition should have included demands regarding ‘sex in public’, but simply that it is not adequately attentive to the slippery slope of the privacy claim. The fact is that access to private space is a matter of privilege, and the result is that the queer community itself excludes a group like hijras. The claim for
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decriminalising private sex would come from those queer people who can afford a private space to have parties, like the one in Bombay. The idea then is not to do away with a demand for the right to privacy, but to be cautious of whether such a claim is based on the queer movement’s in-built hierarchies. ‘Visibility’ or ‘privacy’ cannot be thought of as having an unqualified emancipatory potential for all queer people, and there is a need to attend more closely to the differences of caste and class along the queer spectrum. While the law already operates on the basis of a public–private divide, the response of the activist community should be to challenge that imagined divide rather than reinforce it. That however does not mean that there should be no distinction between the public and the private, but the queer movement’s divide should not be predicated on class, caste and respectability.
TOWARDS
‘COUNTER-HETERO-NORMATIVE’ POLITICS OF EQUALITY
A
The events and incidents discussed above also make evident, the resilience of the sexual anti-citizen—in spite of being branded a ‘criminal’ she continues in her quest as a justice-seeker, working within the very realm of the laws that criminalise her. This allows us to look at the homosexual, not merely as ‘deviant’ subject constructed by the law, but as a subversive and resistant subject who is attempting to redefine the operation of the law, while challenging the law at the same time. Baxi’s ‘constitutional software’ gets effectively used to ensure that the faith in the Rule of Law remains, at least contingently, intact. These discursive moves that the sexual anti-citizen employs in her justice-seeking project have the potential to also disrupt the uniform narrative of the operation of power in Foucault’s Panopticon. What emerges is a strategic politics of sexual justice that does not stop at destabilising hegemonic forms of power alone—the state, laws and judiciary—but also effectively engages in a process of self-questioning. This is reflected in the fact that queer people have demanded that questions of sexual autonomy be looked at through the lenses of desire, and not simply as protection from fear.
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One might still feel that in the current political climate in India, sexuality may seem to be a frivolous diversion from the more critical problems of poverty, disease, communalism, famine and displacement. But as Gayle Rubin puts it: [I]t is precisely at times such as these, when we live with the possibility of unthinkable destruction, that people are likely to become dangerously crazy about sexuality. Contemporary conflicts over sexual values and erotic conduct have much in common with the religious disputes of earlier centuries. They acquire immense symbolic weight. Disputes over sexual behavior often become the vehicles for displacing social anxieties, and discharging their attendant emotional intensity. Consequently, sexuality should be treated with social respect in times of great social stress. (1999: 143)
We see the feminist movement as well as the Hindu right, giving sexuality as much attention, in effect, sometimes unknowingly, with dangerously similar and shared agendas. We also see that while on the one hand the state is withdrawing from most areas of social justice— like health care and education—it has started engaging with sexuality in an obsessive fashion: from the banning of dance bars, to banning sex education, to gagging the media for showing ‘obscenity’. Having raised more questions than providing answers requires that I propose directions in which we can take ahead the debate of sexual justice, not to ‘liberate’ the sexual anti-citizen, but to employ lenses that will enable us to look at her differently, not only gaze at them from atop the panoptic tower but also create conditions for us to welcome their gaze back. What I suggest here are not original or ingenious ideas but ones that have been informed by the works of the scholars I have been referring to. They are not meant to sound prescriptive, merely suggestive. They remain open to challenge, as more consistent interrogation of imagined ideas must remain the leitmotif of all human rights work in times, where hegemonic appropriation of knowledge and practice threatens subaltern existence at every step. What is an immediate need in the present context of living as sexual anti-citizens in a highly sex-phobic nation, is to historicise sexuality—not only to invoke the ‘past’ but also to document what can be called ‘histories of the present’. I do not suggest a project that will exclusively excavate the ‘truth’ about the plural traditions of ‘Indian’ sexuality and thus lend legitimacy to the rights claims of the sexual ‘anti-citizen’. Such a
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project may engender a counter-cultural move that might, in the long run, impose fixated meanings to ‘Indian’ sexualities, excluding many ‘new’, ‘improved’ and ‘emerging’ forms of ‘post-modern’ sexualities—of identities, behaviours, desires. Instead, what might be a more ‘useful’ means to capture the ‘histories of the present’ will be to identify those political assertions that can be understood as ‘counterhetero-normative’. By ‘counter-hetero-normative’, Nivedita Menon refers to ‘a range of political assertions that implicitly or explicitly challenge heteronormativity and the institutions of monogamous patriarchal marriage’ (Menon 2007a: 3). These assertions travel through the corridors of law, when 377 is being challenged; on the streets, when Hijras come out to protest against police atrocities; and in conferences, where a sole panel on sexuality attempts to disrupt the peace with which we intellectualise. When liminality offers cruel possibilities of invisibilisation at every step, the sexual anti-citizen’s travails of existence demand a redefinition of ‘resistance’—not just as political participation in rallies, campaigns but the daily negotiations and choices that determine survival. This is where ‘counter-hetero-normative’ histories get written and where a ‘counter-hetero-normative’ politics of equality emerge. What then gets foregrounded are layered realities of ‘deviant’ lives—married homosexual men, Hijra sex workers, Muslim lesbians and Dalit Kothis. The potential of such a politics is the emergence of languages of resistance, out of the very existence of the sexual anti-citizen, as a subject that disrupts the dominant norms of heterosexuality, queer sexuality, as well as the law. Where then does the law stand with regard to its emancipatory potential when it comes to claiming sexual rights to equality and non-discrimination? From the above instances of the engagement of gay rights groups with the law, it becomes evident that lobbying for change through law reform cannot be the only strategy. If one sees that there is no necessary link between law and justice and if the experiences documented above, with the process of legal change demonstrate that it is important to be skeptical of the law’s ability to deliver justice, then what is the way forward? It is contended that: ...law remains an important site of struggle, but one needs to locate legal change as a necessary part of a wider socio-political change. The premise of change with respect to sexuality is as much a change in societal mores as it is
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about legal change. The legal outcome should not be the focus of a campaign but rather the process of questioning itself. (Narrain 2007a: 41)
An attempt by the sexual anti-citizen to make the law respond to these layered realities of their existence, also marks a redefinition of the very meanings of citizenship. It is this recognition of a multiple and layered existence, one that does not calibrate pain, but looks at disadvantage through the lenses of inter-sectionality, which will allow us to resurrect a more emancipatory politics for claiming sexual citizenship, where visibility will not remain a trap any longer.
ACKNOWLEDGEMENTS Research on this chapter has been made possible by a grant from the Social Justice Programme of the Calcutta Research Group. I am grateful to Ranabir Samaddar for this opportunity. I owe an intellectual debt to Brenda Cossman, Arvind Narrain, Nivedita Menon and Ratna Kapur for what I have learnt through reading their works and personally interacting with them. Special thanks to Debolina Dutta for her incisive comments/criticisms and help with interviews and research material. I express my gratitude towards Anindya Hazra, Anis Rai Chaudhuri for sharing with me their experiences of confronting the violence and stigma of being queer in India, and for celebrating queerness with equal gusto. I also thank Ashok Agrwaal for his comments that have helped me immensely to streamline and tighten my arguments. The shortcomings of the paper, of course, remain my responsibility.
NOTES 1. In one of his famous interviews Michel Foucault discussed how contestations between power and counter-power give rise to an unending struggle for those confronting hegemonic structures and systems. ‘For each move by one adversary, there is an answering one by another…one has to recognise the indefiniteness of the struggle’ (Foucault 1980: 56–57). I am characterising the struggle of the anti-citizen in this sense.
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2. A black woman, lesbian, feminist, mother, poet, essayist and political activist, Lorde’s essay (1984) ‘The Master’s Tools Will Never Dismantle the Master’s House’ is part of her book called Sister Outsider. The essay radically challenges how white people ‘learn about’ racism, or how men ‘learn about’ women. Sister Outsider is a collection of essays focusing on race/racism, gender/sexism, sexual identity, and social class as these are enacted in a white-supremist, heterosexist, capitalist patriarchy (that is, the United States). 3. I use the term sexually marginalised in place of the more popularly used sexual minorities purposefully. While minority status is actually about the existence of power differential between different communities, the connection of the term ‘minority’ to people with alternative sexualities has been used oftentimes to naturalise their deviance—that since heterosexuality is the ‘majority’, it is natural, and any other sexual practice or identity which is in the minority is thus unnatural. 4. Queer is an umbrella term that encapsulates all forms of non-hetero-normative sexualities. While this term can also be critiqued for its own in-built hierarchies it still remains one of the most inclusive of categories to refer to the sexually marginalised. 5. See generally, People’s Union for Civil Liberties-Karnataka (2003). 6. Hijra refers to a ‘traditional’ male-to-female transsexual/transgender cultural community; Kothi refers to an effeminate homosexual/bisexual man; Panthi refers to a macho man, the inserting partner of a Kothi. These are some of the many terms that Indians use to describe their sexuality or gender. The reason many Indians use these terms instead of, the popular ‘gay’, ‘lesbian’, ‘bisexual’ or ‘transgender’ is because of an intense class/caste divide with people who can use these popular terms. 7. Article 13 lays down that all laws contrary to the Fundamental Rights guaranteed under the Constitution shall be deemed to be void. 8. Inserted by the 1st Amendment, 1951. 9. Inserted by the 93rd Amendment, 2006. 10. Also, Clauses (4) and (5). 11. The international campaign was mounted with the help of a report by Human Rights Watch titled ‘Epidemic of Abuse: Police Harassment of HIV/AIDS outreach workers in India’, New York: Human Rights Watch, 2002. 12. The Stonewall riots were a series of violent conflicts between LGBT people and New York City police officers that began during 28 June 1969 police raid, and lasted several days. They were centred at the Stonewall Inn and are widely recognised at the catalyst for the modern-day movement towards LGBT rights. 13. Personal interview with the author. 14. Based on email correspondence with Anindya Hajra from Praytay Gender Trust. See also, http://www.expressindia.com/latest-news/Citizens-show-solidaritywith-the-transgender-community/284292/ 15. The police raided the offices of Naz Foundation International and Bharosa Trust and their workers were arrested under Section 377 and other laws. For a detailed description, see Narrain 2005: 466.
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16. Union of India’s response to the Naz Petition, 6 September 2003. 17. By ‘queer’ I refer to an umbrella category that has the potential to accommodate diverse sexual orientations, preferences, identities and behaviour. Yet, in India ‘queer’ remains a preserve of LGB (Lesbian, Gay, Bisexual) communities primarily.
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About the Editors and Contributors THE EDITORS Ashok Agrwaal is a lawyer, researcher and civil rights activist and noted for his work on issues of accountability and state impunity. He has worked on forced disappearances in Punjab and has conducted a study on the effectiveness of the writ of habeas corpus in the state of Jammu and Kashmir in 2002–05, which is going to be published soon. His paper on ‘Law’s Autonomy: A Paradigm of State Power’ was recently published in a volume titled Autonomy: Beyond Kant and Hermeneutics (edited by Paula Banerjee and Samir Kumar Das, 2007). Bharat Bhushan is one of the leading journalists in India. He has written extensively on centrist political parties in India and on regional politics in South Asia. He is currently the editor of Mail Today, a tabloid published from New Delhi. An engineer by training, he did his PhD in Sociology from Imperial College, London.
THE CONTRIBUTORS Sabyasachi Basu Ray Chaudhury, Professor of Political Science and Director, Centre for Nepal Studies at Rabindra Bharati University, is a Senior Researcher at Calcutta Research Group. He is one of the few experts on Andaman and Nicobar Islands. His other interests include politics of globalisation, democracy, development, displacement, human rights and justice in South Asia. His recent publications include Indian Autonomies: Key Words and Key Texts (co-edited with Ranabir Samaddar and Samir Kumar Das, 2005), and Internal Displacement in South Asia: The Relevance of UN’s Guiding Principles (co-edited with Paula Banerjee and Samir Kumar Das, 2005).
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Samir Kumar Das is a Professor of Political Science at the University of Calcutta, Kolkata and is also presently the Research Coordinator of Calcutta Research Group. He specialises in and writes on issues of ethnicity, security, migration, rights and justice. His recent publications include Conflict and Peace in India’s Northeast (2008), and Ethnicity, Nation and Security: Essays on Northeastern India (2004). He has edited Blisters on Their Feet: Tales of Internally Displaced Persons in India’s North East (2008), South Asian Peace Studies II: Peace Accords and Peace Processes (2005) and co-edited Internal Displacement in South Asia: The Relevance of UN Guiding Principles (2005). Ranabir Samaddar, is a well-known political thinker on contemporary issues of justice, human rights, and popular democracy in the context of postcolonial nationalism, trans-border migration, community history and technological restructuring in South Asia. Some of his works include a three-volume study of Indian nationalism, the final one titled A Biography of the Indian Nation, 1947–1997 (2001). His recent works include The Politics of Dialogue (2004) and The Materiality of Politics, Two Volumes (2007). Oishik Sircar is a human rights lawyer and an independent researcher. He has studied at the universities of Pune and Toronto. He was formerly a research associate with the Calcutta Research Group and is presently Research Fellow, Centre for Human Rights and Citizenship Studies, National University of Juridical Sciences, Kolkata. He has worked as a campaigner with Amnesty International and has taught at the Women’s Studies Centre, University of Pune and Research Centre for Women’s Studies, SNDT Women’s University, Mumbai, Tata Institute of Social Sciences, Mumbai, University of Calcutta and Lady Sriram College, University of Delhi. He works and writes in the areas of postcolonial feminist legal theory, sexual rights, migration studies and cultures of human rights.
Index ABVA vs Union of India, 238 Agamben, Giorgio, 32, 71–73, 83, 91, 92, 99 Ajit Singh and Others vs State of Punjab and Others, 162, 163, 167, 170, 172, 173, 183, 203, 205 Akhil Bharatiya Shoshit Karamchari Sangh vs Union of India, 177 All India Sainik Schools Employees’ Association vs Sainik Schools Society, 125 Anjali Roy vs State of West Bengal, 228 A Periakaruppan vs State of Tamil Nadu, 123 Bandhua Mukti Morcha vs Union of India, 135 Baxi, Upendra, 68, 210, 211 catch up rule, 153, 154, 158, 159, 163, 165, 166, 172–74, 205 Central Educational Institutions (Reservation in Admission) Act 2006, 102, 103, 126, 127 reservation, for OBC, 104 Chiranjit Lal Chowdhury vs Union of India, 225 Constitution of India (Constitution) Article-12, 157 Article-13, 224, 249 Article-14, 80, 115–16, 125, 135–36, 145, 147, 150, 162, 166, 174–75, 187, 198, 202–03, 211, 223–26, 229, 238 Article-15, 50, 80, 101, 102, 104, 106–07, 115–17, 122–23,
127, 139, 146, 152, 175, 211, 223, 226–29, 238, 240 Article-16, 31, 50, 80–81, 102, 107, 115–17, 125–27, 139, 143–50, 153, 155–59, 161–75, 178–79, 181–84, 186–88, 190, 196–200, 202–05, 207 Article-17, 73, 88, 183, 203 Article-19, 101, 116, 200, 238 Article-21, 201–02, 238 Article-25, 164, 203 Article-29, 50, 93, 227 Article-30, 93, 227 Articles-31(A, B, C), 202 Article-32, 135 Article-38, 49, 161, 164 Article-39A, 49 Article-46, 49, 183 Article-120, 93 Article-141, 205 Article-142, 205 Article-144, 205 Article-210, 93 Article-226, 236, 239–40 Article-243D, 139 Article-243T, 139 Article-244, 75 Article-262, 50 Articles-309, 311, 315, 316, 317–23, 207 Articles 330–33, 138 Article-334, 195 Article-335, 81, 139, 145, 155, 158, 160–63, 167, 169–70, 183, 185–88, 195, 197, 199, 207–08
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Article-340, 117, 200 Article-341, 195 Article-342, 195 Article-343, 93 Article-368, 171, 201, 205 Article-370, 50 Article-371, 50 Article-371A, 51 doctrine of basic structure (basic structure), 158–61, 164–67, 170, 171, 174, 182, 187, 189, 198, 200–02, 204 doctrine of intelligible differentia (intelligible differentia), 224, 225 Directive Principles, and sovereign power, 89–92 ‘Indian equality code’, 137 Part IV (Directive Principles of State Policy), 89–90 Part XVII (Official Language), 93 Preamble, 224 constitutional software, 211, 245 93rd Constitution Amendment Act of 2006 (93rd Amendment), 101, 102, 103, 116, 127, 249 Constitution, social justice agenda in, 133–35 Criminal Tribes Act, 1879, 216
equality of opportunity, 50, 54, 81, 107, 126, 136–37, 147, 148, 161, 162, 175, 177, 178, 188, 189, 195, 202, 205 formal equality, 67, 89, 136–38, 147–48, 152, 164, 183, 189–91, 195, 202, 208, 223, 225, 240 principle of classification, 138 substantive equality, 136–37, 139, 141, 147, 189–91, 214, 223, 228 Erotic Justice, 218, 252, 253
Dasaratha vs State of Andhra Pradesh, 80 Discipline and Punish, 214, 253 distributive justice, 39 doctrine of basic structure, See Constitution doctrine of intelligible differentia, See Constitution D.P. Minawala vs Emperor, 230
Indra Sawhney vs Union of India, 102, 116, 124–27, 154–57, 161–68, 170, 172–73, 175–76, 178–80, 182–85, 191, 197–207 injustice, views on, 9–11, 19, 21, 29–30, 34–35, 38–39 International Commission for Transitional Justice (ICTJ), 41
egalitarian equality, 164, 189, 202 equality, 135 and Article 14 of the Indian Constitution, See Constitution
factual truth, 45 Foucault, Michel, 20, 21, 35, 214–16 Galanter, Marc, 70, 89, 98, 116–17, 128–30, 137, 139, 140, 195, 196 General Manager, Southern Railway vs Rangachari, 143, 152, 174, 178, 198, 199, 200 ‘good sex’ and ‘bad sex’, distinction between, 243 Government of India Act, 1935, 65, 80, 90, 103, 106, 140, 195 Hijras, 216, 220, 222, 230, 241, 242, 244, 247, 249
Janaki Prasad Parimoo vs State of Jammu and Kashmir, 123 justice, See also social justice concept of, 38–40 and considerations of security, 22
Index constitution making as, 48–54 as equality, 29–30 as fairness, 28 fairness and justice, notions of, 28 forms of, 9 and governance, 17–18, 20–21 key texts on, 18–19 and law, 16–17, 28–29, 31 notions of justice, 9, 29–36 as politics, 24–26 and the quest for modernity, 22–24, 55–56 as recognition, 38–40 and social justice, 20 for Dalits (or untouchable), 139–40 and democracy, 9–10 political rationality and, 20, 26 and problem of sovereignty, 25 as process of unsettling the status quo, 30 quest for, 30–31 and right to equality, 30 in West Bengal, 11–16, 23 and sovereignty, 25–26 as threshold, 80–89 and “transitional” societies, 46–48 transitional, what is, 40–43 of Truth Commissions, 45–46 ubuntu, as justice, 44 justice in India, study by Calcutta Research Group (CRG), 8–9 key texts, 18–19 methodology, 10–11 Kaka Kalelkar Commission 1953, 107, 117–18 K C Vasanth Kumar vs State of Karnataka, 124 K S Jayashree vs State of Kerala, 123 Macdonald Award, 106, 196 Mandal Commission, 34, 100, 112–14,
263 117–22, 127–28, 142, 154–55, 184, 200, 204, 209 criteria adopted by, 118–19 criticism of, 120–22 economic, 119–20 educational, 119 for Hindu and non-Hindu communities, 120 social, 119 Supreme Court on reservations, after implementation of Mandal Commission recommendations, 154–55, 189– 92 Indra Sawhney case (see Indra Sawhney vs. Union of India) M Nagaraj and Others vs Union of India and Others (see Nagaraj case) V.P. Singh decision, to implement report of, 100–01 M. G. Badappanavar and Another vs State of Karnataka and Others, 165–66, 173–74, 203–04 Miller Committee report, 105 M R Balaji vs State of Mysore, 122, 146 Nagaraj case, 125–26, 154–55, 158–61, 163–76, 178–92, 196, 200, 202– 04, 206–09 balance between equity, justice and merit, 178, 185–88 Constitutional amendments to nullify SC’s decisions, 102– 03, 170–72 equality principle as basic structure of Constitution, 160–61, 164 issues in, 158–59 judicial review of constitutional amendments, 159–60 maximum extent of reservations permissible, 142, 174–77 numerical limit and the ‘carry forward rule’, 142–44
264 petitioners case, 158 relationship between equality and affirmative action, 163–66 reservations in promotion, 143, 152–53 promotion roster, operation of, 179–81 scope of impugned Constitutional amendments, 166–70 National Aids Control Organization (NACO) on Section 377, 239 Naz Foundation vs Union of India, 238 Official Language Act 1963, 94 official language, provisions pertaining to in the Constitution, 93–94 issues and contentions, 94–97 debate on, in the Constituent Assembly, 93–98 Panopticon, 35, 214, 215, 221, 245 personal/narrative truth, 45 ‘politics of recognition’, 40 Rajendran vs State of Madras, 123 Rawls, 11, 29, 34, 39, 69, 98, 193 theory of justice, 29, 39 Recovering Subversion, 219 Republic, Plato, 38 reservation, See also Indra Sawhney vs Union of India; Nagaraj case; R K Sabharwal case Ambedkar and debates in the Constituent Assembly, 140–41 Arjun Singh on reservation in educational institutions, 101 and backwardness, defining of, 116–17 (See Also Kaka Kalelkar Commission) in educational institutions, 103–04 evolution and aim of, reservation policy, 114 history of, 104–08 in jobs, 103 judicial pronouncements on, 35, 122–27, 141–42, 153
Justice and Law in legislative bodies and assemblies, 103 and the Mandal Commission (see Mandal Commission) as policy, 33–34, 128–32 challenges to, 143, 144, 153–54 provision in Constitution for, 138–39 reservation for women, 104 under rule of law, 153, 192–93 state commissions and recommendations Andhra Pradesh, 108–09 Bihar, 109 Gujarat, 109 Jammu and Kashmir, 109– 10 Karnataka, 110 Kerala, 110–11 Madhya Pradesh, 111–12 Maharashtra, 111 Punjab, 112 Tamil Nadu, 113–14 Uttar Pradesh, 112–13 Rishra Book Fair Incident, 236–37 R. Chitralekha vs State of Mysore, 122 R K Sabharwal case, 126, 168, 176, 178–84 Sachar Committee, 51, 104 sexual anti-citizen anti-sodomy laws, panoptic effect of, 215 civil society and political society of, 241–42 and constitutional guarantees under Articles 14 and 15, 222–28 ‘counter-hetero-normative’ politics of equality, emergence of, 245–48 as criminal and justice-seeker, 229–30 locating the, 214–18 and politics of visibility/privacy, 242–45
Index private sex, public predicament of, 218–22 and the Rule of Law, 210–14 and Section 377 of the IPC, 221, 222, 225, 226, 229–30 challenging of, 238–41 Kolkata incidents, 232–36 Lucknow Case, 231–32 NHRC and the AIIMS Case, 237–38 sexual citizenship, 219, 242, 248 sexual hierarchy, Rubin, 216–17 shadow lines of citizenship, 213 social justice accommodation of diverse norms and standards, 70–71 colonial justice, 75–80 in the constitutional mirror, 32– 33, 64–65 the Constitution as document on social justice, 67–68 in the constitution of the social body, 72 colonial justice, modality of, 72 modality of proportions, 74–75 sovereign indeterminacy, modality of, 74 threshold or limit concept, 72–73 emergence of multiple discourses on justice, 69–70 gap between promise and performance, 66–67 in membership of the Constituent Assembly, 65 norms and standards of, set by the Constitution, 68–69 State of Andhra Pradesh vs P Sagar, 123 State of Andhra Pradesh vs U S V Balaram, 123 State of Kerala vs N.M. Thomas, 136, 138, 162, 163, 165, 175, 178 State of Madras vs Champakam Dorairajan, 116
265 state of marginality, by law, 212 State of UP vs Pradeep Tandon, 123–24 State of West Bengal vs Anwar Ali Sarkar, 125 S. Vinod Kumar and Another vs Union of India and Others, 187 T. Devadasan vs Union of India and Another, 144 carry forward rule and, 144–45, 150–51 dissenting opinion, 148–52 majority decision, 145–48 The Constituent Assembly: Springboard for a Revolution, 65 Theory of Justice, See Rawls topological zone of indistinction, 71–72, 83 transitional justice, 31–32, 38, 43–44, 48, 53–54, 61, 62 agricultural to industrial economy, transition from, 55 and land acquisition processes, 55–56 backward- and forward-looking perspective of, 42 concept of, 37 constitution, role of, 48–49, 53–54 allocative justice, 50 caste-based discrimination, and justice, 50 demands of Rajasthan’s Gujjars, 52 development-induced displacement, and justice, 52 partition and Indian Muslims, 51 provisions for the States of Jammu and Kashmir and Nagaland, 50–51 definitions of, 47–48 land question and market-friendly state, 56, 61–62
266 and non-transitional societies, 46–48 objectives and challenges of, 41 origin of, 40–41 post-conflict justice, concept of, 43 retrospective nature, 43 tools of, 42 transitional societies, 39–40 West Bengal acquisition of land in, Nandigram, 60 implementation of the West Bengal Land Reforms Act, 57 Industrial Policy Resolution of West Bengal, 58–59 land acquisition at Singur, 59–60 land question in, 56–57
Justice and Law Operation Barga, 58, 60 peasant resistance, 60–61 Transitional Justice in the Twenty-First Century, 47 Triloki Nath vs State of Jammu and Kashmir, 122–23 Truth and Reconciliation Commission (TRC) in South Africa, 37, 44, 45 truth commissions, 42, 45 Ubi Jus Ibi Remedium, 135 Ubuntu, 44 Union of India and Others vs Virpal Singh Chauhan and Others, 165 Vasanth Kumar vs State of Karnataka, 124 West Bengal, state of justice in, See transitional justice
Gulamiya Ab Hum Nahi Bajeibo
Marginalities and Justice
1
2
Manish K. Jha
OTHER VOLUMES
IN THE
SERIES
Volume 1
Social Justice and Enlightenment: West Bengal, edited by Pradip Kumar Bose and Samir Kumar Das
Volume 2
Justice and Law: The Limits of the Deliverables of Law, edited by Ashok Agrwaal and Bharat Bhushan
Volume 4
Key Texts on Social Justice in India, edited by Sanam Roohi and Ranabir Samaddar
Gulamiya Ab Hum Nahi Bajeibo
Marginalities and Justice
Edited by
PAULA BANERJEE SANJAY CHATURVEDI
SAGE Series in State of Justice in India: Issues of Social Justice, Volume III
Series Editor
RANABIR SAMADDAR
3
4
Manish K. Jha
Copyright © Mahanirban Calcutta Research Group, Kolkata, 2009 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2009 by SAGE Publications India Pvt Ltd B 1/I-1, Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 11/13 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. The assistance of the Ford Foundation in publication of the volume is hereby acknowledged. The views expressed, however, are not necessarily those of the Ford Foundation. Library of Congress Cataloging-in-Publication Data Available
ISBN: 978-81-321-0064-5 (India-HB)
(set of 4 volumes)
The SAGE Team: Elina Majumdar, Meena Chakravorty, Sanjeev Kumar Sharma and Trinankur Banerjee
Gulamiya Ab Hum Nahi Bajeibo
5
Contents List of Tables and Figures Series Acknowledgement by Ranabir Samaddar Series Introduction by Ranabir Samaddar Introduction by Paula Banerjee and Sanjay Chaturvedi
6 7 9 29
1. Gulamiya Ab Hum Nahi Bajeibo: Peoples’ Expressions for Justice in Jehanabad Manish K. Jha
37
2. Ethnography of Social Justice in Dalit Pattis (Hamlets) of Rural UP Badri Narayan Tiwari
66
3. Rights and Social Justice for Tribal Population in India Amit Prakash
95
4. AIDS, Marginality and Women Paula Banerjee
132
5. Towards Environmental Justice Movement in India? Spatiality, Hierarchies and Inequalities Sanjay Chaturvedi
162
Consolidated Bibliography About the Editors and Contributors Index
190 197 200
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List of Tables and Figures TABLES 1.1 Caste Composition of the Village 1.2 Caste/Community Composition of the Village
44 55
3.1 State-wise Gross Enrolment Ratio in India, 2001–02 3.2 State-wise Gross Enrolment Ratio in India, 2004–05 3.3 State-wise Number of Panchayati Raj Institutions in Three Tiers and their Elected Representatives (SC, ST and Women) in India
113 116 124
4.1 Prevalence of HIV Infection among Different Population Groups during 2005 4.2 Comparative HIV Estimates in Various Subpopulation Group 2000–05 4.3 Estimation of State-wise Percentage of Positive FSW
137 138 146
FIGURES 1.1 Sketch Map of Damuha Village 1.2 Sketch Map of Noanwa 3.1 Percentage of ST Population in Some Indian States: 1991 and 2001 3.2 Sex Ratios: State Averages and ST Population Average: 1991 and 2001 3.3 Literacy Rates of General and ST Population in Some States of India: 1991 and 2001 3.4 Work Participation: ST and Total Population: 1991 and 2001
45 54 107 109 111 119
Gulamiya Ab Hum Nahi Bajeibo
7
Series Acknowledgement
T
he publication of this series on State of Justice in India: Issues of Social Justice is the outcome of a two-and-half-year long research and dialogue programme conducted by the Calcutta Research Group (CRG) on the theme of social justice. The research work particularly gained from the dialogues which were painstakingly noted down, edited and later on produced in the form of a report. The report was distributed widely, besides being circulated among the hundred odd persons who participated in the dialogues. The editorial team thanks Kazimuddin Ahmed, Shreyashi Chaudhury, Dolly Kikon, Amites Mukhopadhyay and Pritima Sarma for the work. It also thanks in particular Debdatta Chaudhury, Ishita Dey and Rita Banerjee for their painstaking assistance in producing the volume. In 2003, CRG—with the assistance of the Ford Foundation— embarked on a research programme on some of the critical questions facing post colonial democracies, such as India. Since then CRG has conducted collective research into issues of autonomy and social justice. Three volumes came out of the research programme on autonomy, namely, Indian Autonomy—Keywords and Key Texts (2005), The Politics of Autonomy (2006) and Autonomy—Beyond Kant and Hermeneutics (2007). The method of combining collective research and dialogues continued in this work. While we have already noted that the second research programme followed from the preceding one, this programme was designed in a specific way. It was not meant either to be a philosophical inquiry or a pure political research: the emphasis was on combining critical legal inquiries with detailed ethnographic studies, intended to find out popular notions of justice and their interface with the dominant legal forms. Of course, appropriate theoretical conclusions have been drawn in due course, and these conclusions reflect on relevant philosophical issues as well. Readers will be happy to find that, as on the previous occasion, we have again prepared a collection of key texts—this time on social justice. Besides, soon there will be an online compendium of Keywords on Social Justice.
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The editorial team collectively thanks Ford Foundation and Bishnu Mohapatra in particular for their support all through this exacting and at the same time exciting work, including this publication. Finally the team thanks the authors and all those who participated in the review discussions. Their mutual encouragement, discussions and suggestions were critical for this difficult enterprise. Ranabir Samaddar Calcutta Research Group, Kolkata
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Gulamiya Ab Hum Nahi Bajeibo
Series Introduction The State of Justice in India RANABIR SAMADDAR
I
T
his four-volume series is a report on the state of justice in India. In the by now established mode of collective research, which is dialogic, empiricist, yet imaginative, and has thus become well known within a relatively short period of time, the Calcutta Research Group (CRG) has come out with another study on post colonial democracy, this time on the aspect of justice obtained in democracy, that is to say the limits within which democracy will permit justice, social justice in particular. Readers can take this study as a report card on social justice in India, titled as State of Justice in India: Issues of Social Justice. Readers, in pursuing this four-volume series on justice, may, at times, think that we are conflating democracy with justice; they may also think that we are confusing justice with rights, or at times with law or with equality. Or, they may even think that we are overwhelming the idea of justice with our notions of social justice, burdening it with too many ideas, realities and expectations. In thinking of the CRG study in this way the readers are not all that wrong. In fact this thinking reflects a reality of our time, namely, that if the society of the propertied weighs everything with money and transforms everything with the Midas touch of money, the society of the subjects weighs everything with the criterion of justice—law, government, delivery mechanisms of administration, punishment, peace, war, reconciliation, revenge, reprove, relation with the rulers, historical memory, everything that affects the subject’s individual–collective life fraught with different socio-political issues. The idea of justice, we can say, is the great supplement of our time. Hence, the theoretical and empirical extent
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of this inquiry into the state of justice in India makes the inquiry tantalising. It approaches the various spheres of justice, yet recoils from defining what social justice is; likewise the terms of reference in this research are clear, yet the inquiries are always leading to unexpected paths. On going back through the volumes, particularly the documents collected in the fourth volume, it seems to me that the study leaves a sense of something still remaining undefined, unenumerated, and therefore the entire series is, as if, delicately perched on an abyss between the governmental notions of justice and the popular notions of the same. If we were to be faithful to the realities of justice, we could not have quarrelled over its definition beyond a point and laboured it to death. Is justice then fundamentally a response to what is perceived as injustice, as reaction or as an idea better understood as a negative notion (the other of injustice), or understood properly only when taken as response to injustice? The volumes suggest to certain extent such an answer, hence is the prominent idea of the inexhaustible nature of the phenomenon, as the various ethnographic and analytic commentaries testify. Yet there is something to this manifold nature of justice, which we can put concretely only to its forms, such as attainment of dignity, or reconciliatory, or retributive, or say, instant, restorative, restitution, distributive, allocation-centric, pardon, sentencing, redress of historic injustice or rational. These forms indicate the particular ways in which ideas of justice respond to various conceivable situations, where these ideas bring to mind certain injustices committed as well as some positive principles and practices forming the foundations of these forms. Hence we have decided to cast our explorations in an agenda of four engagements: The first volume is titled Social Justice and Enlightenment: West Bengal. The second volume is titled Justice and Law: The Limits of the Deliverables of Law. The title of the third volume is Marginalities and Justice. Volume four is titled Key Texts on Social Justice in India. Cast in an archaeological mode of inquiry, we wanted to see the layers in the practices and discourses on social justice, and how time, place, history, perceptions, arrangements or apparatuses (such as legal, judicial, constitutional, administrative apparatuses) play significant roles in influencing the regime of social justice, that is, the ideas and practices making this regime. We also wanted to find out the conflicting discourses and actions in securing justice, and see how the
Series Introduction
11
conflicting terrain of social justice makes conventional democracy unstable, because while democracy depends greatly on mass uniformity, constitutional unity and primacy of rule of law over other modes of regulating life, the contentious politics of justice creates deep fissures within these uniformities and primacies. Archaeological inquiry brings out these forms, fissures, levels, overlapping and conflicts. To say the least, these four volumes establish that the field of social justice is extremely contentious, hence dynamic. But these volumes make a more significant point, in fact a lesson for democracy, namely, that conventional democracy (in the sense of conventional democratic theory or in a regime sense, that is, the institutional profile of standard Western democracies) had little room for considerations for justice, while it had more room for liberty, fraternity and equality (that is to say, a theory and institution of membership of a national society, called citizenship, and formal equal membership of a collective). Yet post colonial experiences of democracy show that the widening and deepening of democracy take place through the dynamism that can be sourced to yearnings for social justice. This is the milieu in which rights have appeared always as claims for justice and collective politics have revolved around issues of injustice/justice. In this milieu, freedom, equality, liberty, care, protection and similar other principles of political society are weighed on the scale of justice. Yet, democratic theory has no clue to the way this can be theorised adequately. These researches not only point out the fundamentally unsettling nature of the question of justice, but also the possible ways in which democracy can take the issue of justice as one of its essential parts, which can, as a consequence, propel democracy towards becoming more democratic. For such a research agenda, studying liberal institutions and liberal theories would not have been enough; nor would setting up of prior principles for a positive notion of justice have been the appropriate way. Historical as well as ethnographic studies are needed in order to know the details of popular notions and practices of justice, the discursive reflections, the contrasting realities of governmental and popular justice and, most important, the variety of marginal situations which produce ideas and claims for justice. Taken as a whole, this series is an argument for an appropriate method, on which we can here comment a little more.
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The fact is that justice in high philosophy has been ever a prestigious theme. It has signalled the inscrutable philosophers’ and logicians’ argumentations about nyaya (logic, principle, justice, equity, fairness, and so on) or as in the West, from Plato to Rawls and beyond, a discourse of order and management of inequalities and stations in life. The question faced in the beginning is: is this high route appropriate for the archaeological task we set for ourselves? We chose a more historically and ethnographically oriented route that was suitable for our task of mapping the various existing notions and practices of justice and their respective backgrounds, and our method as demonstrated here can be at best called guerrilla work in philosophy, because it subverts many philosophical assumptions without it putting on a philosophical garb. These ethnographic-historical studies have produced analysis from within. We did not adopt any pre-meditated analytical strategy. Thus several unexpected questions came out of our justice dialogues, which formed an essential part of our research mode, and they determine to a large extent the plan of this publication. In fact the three dialogues held at various places of the country influenced the research agenda, procedure, findings and consequently this four-volume report.1 Those who have accessed the report will have an idea of how this dialogic route of research influenced the study.
II I do not want to anticipate here the editorial introductions to the four volumes. But we can briefly take a look into the features of our inquiry as contained in these four volumes. The first volume presents four chapters on the state of social justice in West Bengal. Based on ethnographic studies, they present scenarios of injustice, which not only form the context of justice and shape the specific local discourses of order, governance, rights, claims and justice but also mark two significant themes characterising our entire inquiries. The first is the theme of the local. The volume tells us that, while we can always say that there is a general regime of justice (particularly when we look at the scenario from the capital city, where we find the seats of the court, the main organs of the rule of law, administration, government, schools of justice, juridical training and so on), the local acts itself
Series Introduction
13
out at times violently, and local perceptions of in/justice may be modelled spatially precisely along the line of distancing from the metropolitan. Rule of law as the main mechanism of justice makes little sense to these specific local practices. But this takes us to an even more significant point. Why is it that in West Bengal, known as the land of enlightenment, a standardised language exercising hegemony over the entire state, domination of the upper and middle castes quite well-spread over the state, and a long established court system (the place where the colonial rulers established the first seat of the highest court in India) we have these pronounced assertions of the local? Or, why is it that, notwithstanding this enlightenment, of which citizens of West Bengal are justifiably proud, the archaic rule of law remains fundamental in state governance so that nobody is held accountable for hunger deaths, or caste discrimination, or the deep backwardness of the minorities, marking large areas falling outside the core rice-producing areas of the state (the core rice producing areas are: Burdwan, Hooghly, North and South 24 Parganas, Nadia, Murshidabad and East Medinipur)? We have thus incorporated in this volume the study of a colonial act that still persists. It seems that West Bengal presents for us two classic questions on justice, namely, what constitutes the social of social justice? And therefore, what is in this idea of social justice that cannot be exhausted by governmental gaze on justice? Also, what are the contests that mark the field of the social? Clearly, there is a strong disjunction between the political career of enlightenment, on which the constitutional Left in West Bengal has thrived for several decades, and the career of the idea of social justice. Indeed, the West Bengal experience demonstrates that while democracy may widen as in several parts of the country, including West Bengal, through mass entry of workers and peasants and the rural and urban poor, and this may indeed facilitate long denied political justice for them (like rights of unionisation and so on), this does not ensure social justice per se. What is more ironic is that the champions of political democracy, like the official and ruling Left parties in West Bengal, may not even recognise, and therefore acknowledge, that political democracy does not ensure social justice automatically. They may even say, as recent experiences of the state verify, that the struggles and contentions for social justice are counter-productive for the democracy they guarantee, because these contentions target the
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Ranabir Samaddar
hegemony of the political class, overwhelmingly coming from upper/ middle caste, liberal, leftist background. This hegemony they think is essential for the democracy they have ushered in, or have widened. They may also say that ‘narrow’, local ideas of justice actually injure celebrated concerns and ideas of national progress and security. In this perspective we can recall the situation in West Bengal in September 2007 when unrest over the inadequacy of essential supplies of food grains in fair price shops spread over a significant part of rural Bengal. The unrest brought before us these two worlds: one of enlightened concerns about the nation, and so on, and other of local, immediate, material concerns—concerns that are articulated as demands of justice. The events dramatically demonstrated the bifurcated world of concerns of the nation and the very immediate concerns of justice. Reports spoke of a man being killed and dozens of people injured in the district of Birbhum in the last week of September 2007 after hundreds of people clashed with police, accusing authorities of hoarding food stocks meant for the poor. Poor villagers said that subsidised food grains and sugar meant for them were being diverted to regular markets and sold at huge premiums by corrupt PDS officials. At least 100 people, including dozens of policemen, were injured in clashes in the week in late-September–early-October 2007 in the state during protests against what locals said was widespread graft in the government’s public distribution system (PDS). One report quoted Peeyush Pandey, the district police chief of Burdwan, where trouble broke out in that week, ‘We have deployed a massive police force and are trying to bring the situation under control.’ Witnesses said one protester was killed when the police opened fire to disperse a mob, but police said they were still investigating how he died. The incident occurred in Ketugram in Burdwan district when irate villagers laid a siege on ‘ration dealers’—as PDS agents are commonly referred to— and demanded compensation from them for insufficient supplies of wheat and rice. A police contingent rushed to the spot and rescued the ration dealers. Angry at the police action, the villagers attacked the houses of ration dealers and hurled stones at the police. They also set fire to police vehicles. As things went out of control, police first resorted to a baton-charge and then opened fire. Ayub Sheikh, a protester, was killed in police firing outside a block office in Lavpur area of Birbhum district, when political leaders inside were discussing
Series Introduction
15
the spreading agitation. Arson, looting and ransacking of ration shops were reported from several areas in the district, around 128 km from Kolkata. The same report quoted the police as saying, ‘Ration dealers and their families are being given adequate protection.’ Protests against corrupt ration dealers continued to rock the heartland districts of Birbhum, Bankura and Burdwan. Trouble had first broken out on 16 September, and then rapidly spread. Everywhere PDS dealers were accused of privately selling off government-subsidised wheat and rice at higher rates. In Mayureswar of Birbhum district, about 250 km from Kolkata, the houses of six ration dealers were set ablaze and their families assaulted. Villagers also looted property and food grain. One political party, the Socialist Unity Centre of India (SUCI), called a 12-hour strike in the district to protest against corrupt ration dealers, but it was later withdrawn at the behest of local leaders. Protests were also reported from Bankura district. Security forces led by Inspector General of Police (Western Range) Arun Gupta tried to cope with the situation even as consumers looted the shop of a ration dealer near Kirnahar bus stop in Birbhum district. Reports also spoke of villagers trying to set fire to grain storage depots and police vehicles, saying they were starving. Dozens of PDS franchisees surrendered their permits out of fear and police said they were investigating all allegations of hoarding. In this context it should be recalled that earlier that year, an inquiry by the Central government found that most of the rural poor in five states were not getting subsidised food supplies regularly. It found that only 10 percent of the rural poor were getting regular supplies in dozens of remote villages of West Bengal. Yet it also has to be recalled that around that time, one newspaper reported the Chief Minster as saying that Bengal would have two more small airports soon (Business Standard, 3 October 2007), and that Air France was keen to operate flights out of city. Yet, in the wake of the trouble in the countryside, the same newspaper also reported that West Bengal’s poor track record on the theft of public grain was second only to that of the northern state of Uttar Pradesh, and Reliance, the giant conglomerate of everything saleable, had cut its troubled retail plans further. The irony was clearer when faced with shortage of food, the people of a village in Bankura let out their anger at a protest rally organised by the CPI(M) against the nuclear-deal, saying they wanted
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Ranabir Samaddar
food and not nonsense. Villagers also beat the local Left leaders. Nearly a thousand villagers clashed with police, forcing the latter to open fire. A schoolboy (16) and another man (23) were injured in the police firing. Nine other villagers were injured in the baton-charge. They were admitted to hospital. As the news of violence at the CPI(M) meeting spread, violent protests against ration-dealers were reported from elsewhere in the district. State CPM Secretary Biman Bose admitted that the Left’s stand against the Indo-US nuclear deal lacked the force of bread-and-butter issues and would be difficult to sell as a campaign issue to an electorate. Meanwhile, what was happening in the official world of politics and the academia? The ruling party, the CPI(M), accused the Trinamul Congress, Congress, BJP and the Naxalites of deliberately trying to disrupt the ration system in the state. The welfarist, liberal, developmental economist, Professor Amartya Sen, found nothing wrong in forcible acquisition of land of the peasants by the West Bengal Government, and assured the people that in due time industrialisation would solve basic poverty as it had done elsewhere, even if meanwhile poverty increased due to forcible dispossession of land. 2 The question that comes out of all these reports is: what do the ‘ration riots’ in West Bengal, as they are remembered now, signify for the discourse of justice, particularly social justice? Readers will have to go through all the four studies presented in the volume to get a fuller answer to the question posed here. Readers will have to go through all the four studies presented in the volume to get a fuller answer to the question posed here. The second volume works on the relation that exists between law and justice in India. Once again, the strategy has been to go into specifics that will tell us of the formations in which justice and law have hitherto related to each other. Therefore, the second volume begins with a description of how in the moment of constitutionmaking our legislators had engaged in the discourse of justice in a particular manner that enabled them to separate the issue of justice from other issues of democracy, political power and citizenship, so that the Indian Constitution while speaking of justice, never integrated it with other issues of the political society it was building. Therefore provisions of justice—and this is a point that CRG brought out in its researches on autonomy also (Banerjee and Das 2007, Basu Ray Chaudhury et al. 2005, Samaddar 2005)—remained as an adjunct,
Series Introduction
17
a provision of special nature not applicable to all, and therefore thematically submerged in many other things belonging to the constitutional domain or theoretically dissoluble in the mainstream of constitutional thinking. The Constitution insofar as it laid down the profile of fundamental legal justice was the other scene of that reality where political justice made sense only when it had addressed issues of social justice, and popular politics made sense only in the mirror of popular perceptions of justice. All these can be termed as the phenomenon of the ‘justice-gap’, which means a gap between claims for justice and governmental (including legal and juridical) regime of justice. The volume thus, as if in a continuing narrative, takes up the issue of reservation in a major way through two long contributions—one documenting the history of reservations in India in the context of political contentions, mass politics, elections, judicial activism and policy games, and the other that shows how the policy game goes on in the language of courts and law. Yet both of these contributions indicate how the issue of justice remains inextricably bound up with the issue of expansion of democracy—a ‘state of exception’ for democracy, because democracy widens not, as we are told historically, through calls for liberty or laissez faire or economic liberalism or individual freedom or even nationalism, but through calls and claims for attaining or ensuring social justice. Indeed, the volume demonstrates that a legal system, whose main task is to rationalise, encode and enforce sovereignty, cannot deal with calls for social justice in its manifold forms, including the form that calls for an end to the repression of sexual freedom under a patriarchal legal regime, or for delivering justice in transitional situations which often make the dispossessed (dispossessed in the wake of the so-called transition to industrialisation and globalisation) the victim. Can we say then, on the basis of this report on the state of the relation between justice and law, that the gap remains never fully bridgeable; and to the question then of what constitutes the social in social justice, can we say that the social (in the context of justice) is what remains beyond what is governmentally constituted, administratively constituted or constituted by considerations of rule (that is, considerations of territory, security and streamlining of people into population groups)? May be that too is social justice, yet clearly in the domain of social justice we have no consensus. Conflicts abound.
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On the question of what constitutes the social of social justice, the mystery deepens and then resolves in the third volume, which is on marginalities and justice. Marginalities indicate marginal situations, marginal actors, processes of making segments marginal, techniques of producing marginal situations, the asymmetric power play in society, but more than all these, marginalities indicate strategies of inclusion, exclusion, differential exclusion and, most important, techniques of turning spaces into marginal enclaves—and all these in the interest of effective government. In this dynamic field (because while the government addresses one issue of marginality, its governing techniques produce other marginalities), the claim for justice is a product of marginality. Power meets its other in the issue of justice. In the social imaginary of justice, governmental politics is thus apprehended as its other, as its absence, as the void in a relation that was producing power. Marginality produces counter-power—and this is a play produced purely through the diagram of space configured through disciplinary and governmental apparatuses. Marginal positions are positions marginal to operations of power—positions that are produced by the operations of power. Therefore, issues of public health suddenly bring to surface situations and positions of marginality in relation to operations to govern society. Dalit communities may have marginal positions within. Marks of violence may signal the marginal positions in society, because only violence may indicate how the marginal may strike back at the heart of the empire. In short, as the third volume demonstrates, justice may emanate from the dynamics of marginality, and this not a spatial given once and for all, but a spatial dynamic produced incessantly from the operation of a grid of power that wishes to rationally govern the society by compartmentalising it, disciplining it and controlling the flows that mark it. Therefore the same governmental techniques which, to some extent, may address issues of social justice, such as positive discrimination, may produce marginal positions out of their operations. Justice is thus, what I indicated in the beginning, something that tells us of the existence of a remainder; it characterises a void; it demonstrates what remains outside the operations of governmentality. It speaks of arrangements of social spaces. The remarkable chapter on AIDS, marginality and issues of social justice addresses the heart of the matter. The fourth volume is a compendium, whose nature is again governed by the framework of this research. It contains certain key texts.
Series Introduction
19
These texts hopefully will bring out the relational nature of justice, as also the fragmented nature of its existence. They will also tell us as to why we cannot retain in our political idea the full-blooded nature of sovereignty when we want that society should fully ensure justice. This is of course a problematic posed by the paradoxical relation between law and justice. Each document, say, is an appeal for justice—appeal to the state to ensure justice, appeal to ensure effective legal delivery mechanism; on the other hand, each document is a manifesto that law is not ensuring justice, that state actions fall short of ensuring justice, indeed state actions cause injustice. You need order that will be the form of justice; yet this order will soon appear to the society of subjects as causing injustice to some sections therein, specifically those sections that find themselves now marginally situated consequent to the operation of order. Justice is perched on that great meeting point—of the operation of law and order and the process of subjectivation, when the claims of the subjects must take the form of being just, that is to say, these claims will have a permanent relation to law and order, yet will always seem to emanate not from order, but from what lies beyond, that is, in ethical-political claims. With attainment of rights, thus, subjects can say that justice has been done, in fact with the right to justice, the subject has attained agency. With claims for social justice, we can say, the subjects of justice have made their political intention of going beyond the legally mandated nature of political society even more clearly. This four-volume report aims at telling its readers the conjunctional nature of justice in India. In the framework of enlightenment, law and social marginality the report shows how justice fares. This is a selective approach. Even 10 volumes, structured along the line of describing the state of justice in India state by state or issue by issue, or institutional organ by organ, or form by form, would not have been adequate; not even 20 volumes. We have gone for a select report. However, this method should now prevent us from coming to grips with the issue of social justice in a democracy, which would mean, to repeat, finding out what constitutes the social of social justice, how law fares in delivering justice, how violence becomes an essential part of the popular notion of justice and how the dynamics of justice is linked with the emergence of marginal situations, and therefore in the light of all these, how to read texts of justice. All in all, this is a report on the conjunctional nature of justice in India, and the specific questions
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that it poses for democracy. The fourth volume is particularly meant for future researchers and students, who hopefully will benefit from the work already done by CRG in this field. It follows the standard practice of CRG in setting up its research goals.
III Yet, the summary of these findings is not just a summary—it leads to something more to which we can move our attention. The principal one of the specific questions—and I have hinted at quite a few in the beginning of this introduction—is namely, if democracy is destined to be tied in the near foreseeable future to the rules of governmentality, how can it inhere justice at the same time, whose foundations are perched, as these volumes show, on the intersection between governmental forms and the forms that lie beyond the politics of government? Social justice is that genre of justice that is not exhausted by the prevailing governmental forms of justice, namely all those that are enumerated by law, administrative order, court order, policy resolution in official circles—in short, what is termed as ‘political rationality’. If we have tried to engage with the question as to what is social in social justice, here is another engagement marking this inquiry you may say from the opposite angle, namely, what makes this social an issue of justice, which can mean fairness, equity, verdict, guarantee, recognition, dignity, punishment, pardon, reconciliation, compensation and, in cases, even innovation—all these forms depending on the particular ways in which these two components of the appellation called social justice (social and justice) are being defined at the moment of the meeting of the governmental and the supplementary forms. In fact, as the chapters on AIDS (Volume 3) and the court discourses on reservation (Volume 2) show, some of the issues of our life become social because they raise the question of marginality and therefore, of justness. Likewise, these issues become issues of justice because they have refused to be exhausted by governmental (which includes the juridical) ideas and practices, and have become social. In this contentious dialectics we can locate our histories of social justice.
Series Introduction
21
This probably needs to be explained a little more. How do marginal positions arise? The governmental obligations of modern rule, as Michel Foucault showed, arise from the necessity of governing effectively the sites of the ungoverned, therefore turbulence and risk, namely one’s own soul, family, kingdom, territory and people. Governing the soul results in the science of ethics and morals; governing the family adequately results in economy, governing the territory results in security, and governing the people results in the sciences of the population (namely economics, demography, statistics, juridical science, political science, human geography, urban studies and so on) (Foucault 2007). I think for us what is instructive in this observation is not that this just happened, but that the dictates of the sciences of caring of the self, governing the family well, similarly ruling the territory, taking care of security considerations and, above all, the population, resulted in a massive reconfiguration in the power diagram where marginal positions would be created with each act of governing, because governing would become essentially a fragmenting and dismembering task, the calculation of rational means and ends in this way producing and meeting its dead ends. Since the sovereign would not now intervene at each and every stage, for that would be impossible given the complexities of a modern society (economy, food production, ‘overpopulation’, right size of territory, right kind of people, public health, public education, equal conditions, individual freedom coupled with social segmentation, social stratification, class, caste, race and gender divisions, and so on), the art of governing would have to ensure justice also, even if that meant producing social injustice. Thus, while during the colonial time, the cry for freedom reflected the demand for justice, by the time the Constitution was being made, the nature of the demand for justice had changed. The Constitution could not be content with saying that attainment of freedom was justice achieved, it had to now demonstrate in its body of provisions as how justice had been or was being vindicated in each of conceivable marginal position—thus you have references to caste, problem of equality, just division of resources, just exceptions, just compensations, just policies towards minorities, and so on, so that the Constitution could claim that freedom meant justice for marginal positions. In a sense then, we have here the age old question of politics: can the sovereign be content
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with dealing with obedience and the problems of control, or will it have to devise ways of governing people, habitations, circulation of people, money and commodities and, with all these, the territory in which the population resides, habitations exist and circulation of money, goods, labour, capital, information, and so on takes place? It seems, for instance, from a primary reading of the Indian Constitution that the issue of justice appears to the sovereign as an extraneous one, not intrinsic to rule, though advices to the sovereign have been always that the sovereign must be just towards his subjects. Thus the problem for the Indian Constitution was not simply laying down certain advice to the sovereign, but also erecting rules of government, which meant among others the rules for ensuring justice for those who occupy marginal positions. It is in this moral framework that the great encounter between the governmental forms of justice and the popular ideas of justice takes place. In a more precise and institutional sense, the court, the executive, the legislature, the bureaucrats and the policy makers—all start discovering the limits to ensuring justice. All start saying now in defence of the limits that justice must be balanced with considerations of security. Security means taking care of and avoiding risks. But that means calculating certain possibilities as risks. What is risk? There can be inflation, food crisis, weakening of borders, infiltration, depreciation of currency, bank failure, weapon failure, intelligence failure, spread of gun and criminal activity, environmental catastrophe, weather failure, climatic disorder, widespread entry of travelling mass diseases such as the Severe Acute Respiratory Syndrome (SARS), brain drain and internal disorder leading to civil strife. All these are risks to the government. Governing in risk society would mean engaging with risks, reorienting policies, ensuring security, so that risks can be calculated and mostly avoided. This is precisely the governmental business that proceeded from the 1950s in India. The governmental frenzy with risks of course reached its climax in the late 1990s when in the span of a decade it came out with at least seven policies (rehabilitation and resettlement, information, food, minimum wage, agricultural insurance, national security and coping with national calamities) aimed at coping with risks flowing from nuclearisation of weaponry, opening up of the national financial and commodity markets and liberalisation of controls. But this task of taking care of security would soon come into conflict with the other task of governing, namely ensuring justice.
Series Introduction
23
To the government the question meant, what would constitute justice in a risk society? As a result we have now endless debates as to how these two considerations can be balanced. In a fascinating chapter on Jharkhand (Volume 3) the research shows how what years ago was a cry for justice, namely self-determination of the Adivasis and thus the demand for separate statehood for Jharkhand, now changes with time and today the cry for development has become the other name for justice. But if this shows how in many cases the governmental form acts as the model, the volumes also show that social justice is often perched on the intersection of the two varieties, which in a conflictual combination make up the philosophical and moral framework, within which justice—its manifold perceptions, practices and institutions—operates. One thing is true at any rate that demands for social justice to go against economics and the very economic idea of free circulation of merits, men and resources. We have in this corpus of writings a genealogical account of the Land Acquisition Act (Volume 1), which shows how, on the strength of economic logic, naked dispossession of people of their land and other resources have continued for the last two centuries, and the enabling instruments have been this Act and its preceding and following legislations. The economic logic would be to allow freedom to begin with because freedom does not begin anywhere by itself. But the economic logic and the governmental obligation to institutionalise freedom, however, soon comes up against other governmental obligations, one of which is to keep the society calm so that the risk of civil disturbances does not become immense. Hence, you may have the declaration of a National Emergency as in India in 1975—a classic risk situation—when the government is faced with the risk of social inequalities and social protests going out of hand, and therefore cannot allow the society to continue along the lines of laissez faire, the cornerstone of liberalism, and has to intervene in a pronounced way. Indira Gandhi’s Twenty Point Programme was an attempt to combine the sovereign’s power and governmental responsibilities. The sovereign has to keep the territory and the population secure under its unquestioned power and control, the government has to ensure that all relations that affect the rule, that is, behaviour or conduct of the subjects, are governed properly. Governmental justice, the classic example of which was the Twenty Point Programme, emerges in such a milieu, its apparatuses are forged
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under such condition, and if we recall the ideas of developmental administration and judiciary that emerged in the mid-1970s in India, we can see the permanent dilemma for the government. Courts too swing in mood in that dilemma: should they be an apparatus of security (of the sovereign, interpreted as the nation) or should they help the task of governing? They cannot, of course, avoid either of these two tasks. Hence, the periodic convulsion in juridical thinking with which we are now all too familiar. Because social justice cannot be bought by market mechanism (individual justice can be—if you have money you can escape caste discrimination in an Indian village or town and settle elsewhere), the government is therefore ever at a dilemma—how to intervene, how much to intervene, how to control, how much to control, how to leave and how much to leave to economic mechanisms? Administration of things is thus never an easy task for the government, who has to know the correlates of evil and freedom, and is thus always in the need of knowledge of something we can call as the physics of power. The general form of mechanisms of security and normalisation are never enough in such a conundrum. We shall eternally ask, should the criminal be kept long enough in jail to keep the society free of crimes, or should the criminal be set free once he has been indicted of crime, since thereby we have satisfied the requirement of justice?3 What would social justice mean in a risk society, which requires government of all relations and themes in a micro-regulated way? From the point of normalisation then social justice becomes a hindrance, though precisely for this reason, social justice becomes a motor for popular democracy. It disturbs the relation between politics and strategy, government and the sovereign, responsibility and freedom and normalisation and risk. Considerations of social justice mean, as these researches show, reflections on the sovereign, ways of rule and the sciences of government. But more significantly, these considerations would mean at least openness of the discourse for claiming redress for the wrongs done—a recognition of the wrong, a provision of redress, a guarantee that the wrong would not be repeated, custodianship of the corrections done, and an attitude of innovation or openness towards creating new mechanisms to act as guarantee that the wrong would not be repeated. This is what I have described elsewhere as minimal justice (Samaddar 2004).
Series Introduction
25
The argument for minimal justice has implications for the theory of sovereignty. Democracy could not make a dent in the theory, possibly that was not its purpose also. Nationalism and popular sovereignty— both closely related with the history of democracy—brought the juridical form of sovereignty into sharper focus, though both brought the imperative of government also closer home, as under nationalism and popular sovereignty the sovereign was to be close to the people, and was obliged to constantly explain that the sovereign was for the subjects, and intended their welfare. Yet, we must remember that even though democracy grew up under the aegis of these two, governance was never strictly its main occupation. It was a science to be practised by the experts employed by the sovereign. Democracy occupied itself with the issues of rights and law, but left the matter of ‘administration of things’ to the government. Thus democracy never raised the issue of the sharing of sovereignty—realising those forms, which would enable democracy to install popular governance at the lowest level in each sphere of life, autonomous arrangement for self-rule and an interaction of autonomies in a society reorganised along the lines of autonomies. With the clamour for social justice now marking democracies, the liberal theory of the state cannot easily incorporate those demands within its theory of sovereignty regarding the state, or within its theory of government based on a view of laissez faire, in which market mechanisms must be given as much space as possible to keep things flowing or circulating with ease. Social justice does not eliminate the problem of sovereignty; on the contrary it makes the problem more acute than ever. It now obliges the sovereign to become the great trustee of a mechanism called the administration of justice. Its freedom is curbed. It now has responsibility and an obligation to explain. This is where sovereignty and democracy start parting ways, because social justice, as these volumes show, raises issues ranging from legal pluralism to development, dignity and compensation, to contests around marginal positions. The art of government cannot save the sovereign from the challenges facing it. In a way through the emergence of the issues of social justice that now mark politics in a big way we have a reconstitution of the history of sovereignty. The state of justice, born in the feudal age and characteristic of the territoriality of that time, corresponded to the society of customary and written law. Then came the state of regulation, government, laws and controls, which mark the modern
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time, corresponding roughly with the society of industrialisation, mass population, developed trade and market mechanisms and risks about our biological lives stemming from famines, starvation, security threats, currency crisis, mass disasters and so on. This state of regulation and government would be happy to be engrossed with issues of security and population. But the question of justice becomes a question mark in this neat history of transformation of the state. The reason is that issues of social justice on one hand do not allow the sovereign to leave everything of daily administration in the hand of the government; it has to intervene as an exceptional power to ensure justice (once again recall the proclamation of National Emergency in India in 1975); on the other hand, the government is compelled to devise newer and newer techniques—based on a combination of legal and semi-legal modes—to satisfy the demands for justice, which its own governmental forms had in the first place given rise to. Neither the elevation of government to a sovereign position nor the governmentalisation of the state proves to be the solution. Social justice presses democracy to escape the closure imposed upon it by these two transformations—one or the other. The sovereign, suzerain, lord, landowner, priest, master, administrator, legislator and the judge—all have had their own specific ideas of how to administer justice, and governing justice has become a specific activity. In this, the policing, prosecuting, trying, sentencing, jailing, interning, expelling, imposing penalty and finally killing—all have specific roles. All these are meant to combat risks of delinquency, murder, theft, illegalities, violence and all that threaten life and society. If this is the reason of the state and governance, it is clear that reasons of both the sovereign and the government lean heavily on functions of security so that social circulation continues unimpeded (recall the confinement of the AIDS patients). As I have pointed out, this in the long run injures the legitimacy of the sovereign, because the sovereign was to rule for the benefit of the subjects. Social justice shows that police and justice, meant to go together, cannot go together. Political rationality fails, because the co-existence of the reasons of the sovereign and those of the government is disturbed with the emergence of the issues of social justice. Social justice is thus a specific domain—perched on the cleavage between the two rationalities—of analysis and knowledge on the one hand, and intervention on the other. The truth of justice cannot make peace with the truth of politics.
27
Series Introduction
Governmental negotiation of issues of justice is shown in this collective research as not something transcendental. The more governmental power assumes microform to settle issues of justice, the more justice eludes the governmental regime (even enlightened administration, as shown in Volume 1, cannot escape the paradox of governmentality while it thinks it has addressed the issue of justice satisfactorily) and becomes an issue that is even more marginal in its position in society. That is why this series required a combination of case studies built on the theme of law and democracy’s engagement with issues of social justice—issues that owe their genesis to marginal positions in society and have not been exhausted by governmental rationality.
NOTES 1. For an account of the CRG dialogues on social justice, please see, http://mcrg. ac.in/Dialogues_on_Justice.pdf. 2. I am drawing from reports in several newspapers published at that time. The particular report I have referred to in the preceding two paragraphs is from the bulletin archives of
[email protected] on behalf of Palash Biswas. 3. See for instance the discussion in Hudson (2003) especially, pp. 203–26.
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Gulamiya Ab Hum Nahi Bajeibo
29
Introduction PAULA BANERJEE AND SANJAY CHATURVEDI
A
ccording to prominent liberal rights theorists, human beings are rational and autonomous and deserving of dignity, respect and rights. The state, or any other institutions, may not dictate our thoughts, ideas, spiritual values and individually held visions of good (Dworkin 1996: 200–05). To make us secure against any institutional tyranny, such theorists call for ownership of possessions, such as moveable and immoveable property, by man. No institution, not even the state, has the right to take away such property without due compensation, even if there are good reasons for such an act (Epstein 1985: 31–34). Human rights, it has been said, are enhanced by intimacy and privacy and so human beings have the right to such privacy. No human being can be deprived of his/her privacy without due processes of law. Also, it has been argued that human beings are natural bargainers. Therefore, rights theorists contend that the state has little business to encroach on free markets which otherwise would run on people’s ability to bargain. Human lives are enhanced by the possession of property, a private sphere of intimacy and free market (Dworkin 1978: 199). Justice lies in ensuring that human beings can enjoy these rights. According to one theorist ‘we therefore have a right not to be subjected to laws that individually and irrationally discriminate against some of us, or deprive some of us of these rights, for the benefit of others’ (West 2003: 71). Liberal democracies such as India constitutionally grant many more rights as well, including the right to free speech, freedom of religion, freedom against all forms of exploitation, and so on. By giving rights, states supposedly further the cause of justice. But rights and justice exist on different planes: one is a legal concept, the other moral. The consequence of having a right is legal. Rights delimit the power of the state vis-à-vis the individual. It saves an individual from the tyranny of the state. If a state impinges on people’s rights then it is considered
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to be acting illegally. It is true that rights have the capacity to act as the bridge between the legal and the moral and can further the cause of justice. But rights can even be an impediment to justice. Rights may not increase the quality of either individual or community life. Rights have often inspired false hope and served to obscure state’s ability to be good or just. Rights have presented obstacles in creating humanistic, egalitarian, plural and environment friendly societies. What is often forgotten is that to enjoy rights one needs a minimal threshold of material well-being. What happens when individual citizens do not enjoy a minimal threshold of material well-being? Since rights protect individuals against state interventions, rights create economic, caste, sexual and other spheres of private entitlements within which the powerful can exploit the powerless. This is a problematic of marginalities and rights and therefore, marginalities and justice. People in the margins live in a state of rightlessness and herein lies the problem of justice. This volume discusses the situation of people living in the margins and their relationship with communities that enjoy enough material wellbeing to secure their own rights. In such a situation, rights empower the strong at the cost of the weak. Rights, then, can be co-opted by the strong against the weak. Also, it can be argued that in such an imbalance, the state finds it difficult to intervene because it can be perceived to be impinging upon the rights of some groups. But there is nothing in the discourse of rights that discourages states from working towards an equal society. When the state uses the rights argument for not interfering, then it inevitably means that it is unable or unwilling to protect the marginal from the tyranny of the elites. This volume discusses five such individual situations and makes the argument that rights might not be the best way for accessing justice. Other paths to justice need to be sought when the discourse on rights fails to provide deliberative justice. One such path is through people’s struggle. In the district of Jehanabad in Bihar, one such struggle for justice is on, says Manish K. Jha. The owners and cultivators belong to the Rajput and Bhumihar caste whose rapacity is legendary. In addition to exacting revenues and ever increasing rent from the peasants, the zamindars were at one time famous for exacting forced labour. Over the years, the productivity of the land declined and with it, increased exploitation of the landless peasants through lowered wages. They were also denied rights over government and public commons.
Introduction
31
Political leaders in the area are involved in further nefarious activities. To augment their power, they have sponsored caste-based private armies or senas. In the absence of a strong and effective state machinery, the senas indulge in looting, pillaging, raping and massacring landless labourers. Gradually, the peasants felt the need to organise themselves and they rallied around left organisations. First, it was the Indian People’s Front and later, it was more radical organisations such as the People’s War Group and others. Mobilising the peasantry was a move towards social justice according to the author. The chapter captures the voices of the erstwhile marginalised peasants of Jehanabad. These voices reflect the scores of caste-based violence that were perpetrated on the labourers. While they allied themselves with ultra Left ideologies, they also related to mainstream political processes. By mobilising themselves, they could not enhance their economic position but at least, they enhanced their social status. This was a protest against their shackles and by mobilising, they were breaking from those. Symptomatic of their justice was their song Gulamiya ab hum nahi bajeibo (Life in slavery is not fitting with us). In another chapter on the situation of Dalits, this time in Uttar Pradesh, Badri Narayan Tiwari writes that the concept of justice is not constant. It changes with people’s location in society: ‘In an unequal society the levels of victimisation of people differ radically depending on their location in the social ladder.’ Badri Narayan’s chapter deals with social justice among the Dalits, especially the Chamars and Pasis of Shahabpur in Uttar Pradesh. The Dalits in Shahabpur are more concerned about the everyday injustices than about justice per se. The Brahmanical code and ancient religious practices sanction the injustice that the Dalits face. Educated Dalits are in the process of creating narratives to arouse a sense of dignity and self-respect among Dalits in the grassroots. These narratives are not filled with anguish and pain rather they speak of glories in the distant past, stories of important Dalit historical characters and the role of upper caste in marginalisation of the Dalits. In these narratives the Dalits are not overtly seeking justice but in the act of creating narratives lay the seeds for demands of justice. When these narratives are circulated, the Dalits, in conjunction with political parties such as Bahujan Samaj Party regain a sense of dignity. It also encourages a feeling among the Dalits that bad days are over. By installing a sense of self-respect among the Dalits, the intellectuals within the group try to access justice.
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These situations portray that, historically, caste has been excluded from narratives of social justice in India. Although throughout the course of the 19th century, reforms largely addressed the upper castes thereby rendering their experiences normative but changes were also occurring in the grassroots. Scholars have focused on the colonial state as the crucial arbiter in the politicisation of caste and the interest in social reform. In the course of the 19th century caste distinctions were reinforced. These distinctions were more fluid than Anglo-Indian law understood them to be. In the process these distinctions were established on firmer ground as the situations of Dalits in Jehanabad and Shahabpur portray. Law in this case increased the colonial states’ disciplinary interventions. Crisscrossing these narratives of marginalisation are gendered conceptions of tradition that reconfirmed patriarchal and upper caste control. Marginalisation on the basis of caste did not simply remain at that. It also became marginalisation on the basis of gender. Added to this was poverty. All of these created a situation of not just resourcelessness but also of hopelessness that was exacerbated by the ineffectiveness of the state. To counter these Dalits could fall back on only one resource and that is their imagination. Their imagination led to their narratives of hope, which in turn led to their mobilisation and what they perceived of as justice. But caste groups are not the only marginal population. The tribals form another group of marginalised people. According to some observers, they are ‘almost always the least protected, most marginal of any country’s population. Constant and increasing pressure from creeping “development” is displacing more and more tribals’ (Kamal et al. 2006: 18). The arbitrary borders drawn by imperial nations in this part of the world have divided indigenous population into segregated groups. This has put them under inordinate pressure and they are often forced to live in situations of planned segregation. They face many forms of encroachment of which not the least is land encroachments. Progressively they are being displaced from their land. Other resources are being taken out of their control consistently. They are often left out of the main power structures. The development paradigms preferred by the states in South Asia have led to their displacement. Land is often at the root of their problem. To talk of marginalised populations in South Asia, one has to speak of the indigenous groups. Amit Prakash
Introduction
33
speaks of such indigenous groups in his chapter, entitled, ‘Rights and Social Justice for Tribal Population in India’. Amit Prakash in his chapter concentrates on the tribal populations of six states of India including Chhattisgarh, Jharkhand, Orissa, Madhya Pradesh, Gujarat and Rajasthan. The sex ratios of the Scheduled Tribe (ST) population in these states show positive improvement over the last decade. In terms of literacy and education there is high percentage of enrolment of ST boys compared to ST girls in the schooling system in most of the states. But in all the six states the overall educational scenario for STs is improving. Therefore there is hope that there is a possibility of a better educational scenario for STs in the future. But the work participation of ST population portray that there was no cause to believe that productive employment for STs was on the rise. ST workers continued to be locked in age-old subordinate positions. Given such a situation, the possibility of realisation of socio-economic rights of STs appears limited. However, the most damaging scenario is presented when one looks at the situation of displacement among the tribal populations. The impact of such displacement is not limited to the physical, but has other impacts such as forced loss of livelihood, problems in adjustments with skill sets and fracture among communities. There is a recent genre of literature that exposes this correlation between development and displacement of tribals and much of it has been published by Calcutta Research Group (CRG) in their volume, Internal Displacement in South Asia, and this chapter argues on that same vein. The other groups of marginal population that this volume addresses are the victims of AIDS in East and Northeast India. The author, Paula Banerjee, argues that AIDS impacted the lives of people largely living in the margins, both geographically and socially. The oft repeated argument is that AIDS makes people vulnerable, but in this volume, the author presents the argument that social marginality makes people more vulnerable to HIV/AIDS. India has over 5 million people living with AIDS. According to figures presented by UNAIDS India has more HIV positive people than any other country. Although the Government of India (GOI) has disputed this figure, it is undeniable that the number of HIV positive people is one of the largest in the world. Yet AIDS is still presented as a disease from the outside or
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from across borders. From the beginning AIDS was considered as a foreign affliction and there were witch-hunts to blame a fallen guy. The most powerless of the victims were marked as responsible for AIDS such as sex workers from across the borders or widowed bootleggers of Nagaland in Northeast India. Women living in geographical borders and social borders are equally vulnerable to be marked as carriers of AIDS. Efforts to control AIDS degenerates into efforts at controlling female sexuality, which then becomes an agenda for the state regime of control to pursue. This agenda achieves greater immediacy when it is conflated with the control of borders either social or geopolitical. Therefore control of female sexuality in the borders becomes the fanatic agenda for the state that marginalises the already powerless women without any hope for their social justice. The final chapter by Sanjay Chaturvedi discusses another key issue, which is currently in the margins but deserves centrality, and that is the question of environmental justice. Chaturvedi critically examines the issue against the backdrop of globalisation and poverty on the one hand and ecological degradation and climate change on the other. He argues that geography matters in case of both old and new forms of social and environmental injustice in India. Even though environmental questions in general are becoming increasingly salient in world politics, climate change and environmental catastrophes have not warranted enough attention. Particularly its impact on marginalised communities is not well understood. Although there has been a great deal of talk on the Tsunami, it is often forgotten that devastating impact of such calamities is felt the most by the poor and the marginalised as they are subjected to social and ecological hazards in much greater frequency than the rich. Chaturvedi is of the opinion that the governments are an agency that seems particularly impervious to such idea. In the final analysis he argues that in India there is an emerging dialogue between progressive non-government organisations (NGOs), academics and local community organisations about environmental justice but the need of the hour is to make governments more critically aware about social hierarchies and the effects of environmental hazards on such a stratified society as found in India. The chapters of this volume look critically into the question of marginalised populations and their ability to access social justice. If these population groups are able to organise themselves as a critical mass and mobilise, then they are able to access justice. But when they
Introduction
35
are unable to do so, as had happened with the victims of either AIDS or the Bhopal gas tragedy, then they remain castigated in the margins. What these chapters show is that it is important for communities to organise and to regain hope without which no protest can be launched. Unless the protest is loud and clear governments remain impervious to such claims. The volume also reflects on the issue that governments seldom dole out justice unless population groups claim it. But unless the state recognises these claims, much of what is achieved proves to be a chimera.
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37
Gulamiya Ab Hum Nahi Bajeibo
1 Gulamiya Ab Hum Nahi Bajeibo1 Peoples’ Expressions for Justice in Jehanabad MANISH K. JHA
Gulamiya ab hum nahi bajeibo, azadia hamra ke bhawela… Jheeni-jheeni beeni chadariya, lahrela tohre kaandhe Jab hum tan ke kapda maangin, aawe sipahiya baandhe Sipahiye se ab hum nahi bandheebo, chadaria hamra ke bhawela Kankar chuni-chuni mahal banaulin hum bhaini pardeshi Tohre kanooniya maaral gayeni katahu bhaeil na peshi Kanooniya se ab hum nahi bandhaibo, azadia hamra ke bhawela Hamre Jangarwa se dharti phulale, phulwa main khushbu bharale Humke banukiya se kayela bedhakhli, tohre malikai chalele Dharatiya ab hum nahi gamwaibo, banookiya hamra ke bhawela… Gorakh Pandey (Life in slavery is not fitting with us anymore, for free will has caught our fancy …. You have the luxury of putting on rich and precious drapery on your shoulder When we ask for a mere piece of cloth to cover ourselves, police come to apprehend us However, we are no more apprehensive of the police for we have developed likeness for the drapery hanging on you While you have been adding on to your palace, we have only been distressed Making a mockery of the proceedings, your legal mechanism made us suffer so far But we shall not follow your law for free will has caught our fancy
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It is people like us who make the land rich and abundant; it is we who fill in smell in the flowers all around It is the might of our weaponry indeed, which made you master of the land around us We shall loose no more land, for weaponry has caught our fancy).
[A very popular folk song, which people of Noanwa sing as their understanding of Justice.] This is one among the numerous folk songs which inform the audience how societies perceive and articulate justice despite a long history of endurance of the brutal forms of violence and injustice. These songs indeed also convey the multiple layers and levels of the consciousness of the people, which they have acquired, with a great deal of struggle, through a topography that is rather unrelenting. The undocumented idioms, folklores and folk songs, like the one presented above, are the most authentic sources of information with regard to experiences of injustice and indignity encountered by the subjugated Dalits and extremely backward caste (EBC) and class of people of southern Bihar in general and in the district of Jehanabad in particular. However, it also beautifully communicates changes over years and a deeply held belief for better alternative appearing out of struggle and movement. Folk songs like this also help one to connect with Freire when he says, ‘Without a minimum hope, we cannot so much as start the struggle. But without the struggle, as an ontological need, dissipates, loses its bearings, and turns into hopelessness. And hopelessness becomes tragic despair’ (Freire 1999: 9).
INTRODUCTION The district of Jehanabad is an apt example of an almost unshakable nexus between feudal peasantry, political leaders, criminal gangs and police forces. Infamous for recurring massacres and other forms of violence, Jehanabad has also been witness to protracted and sustained struggles for justice against age-old injustices and violence. Till 1986, Jehanabad was a part of Gaya district. In fact, it was carved out from Gaya and made a separate district for tackling, what the state described as, ‘growing extremist and Naxalite activities’ in the then central
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Bihar. After the bifurcation of Arwal district, Jehanabad consists of five development blocks, namely Jehanabad, Makhdumpur, Kako, Hulasganj and Ghosi.2 It comprises one parliamentary constituency with five assembly segments and in this predominantly agrarian district, the owner-cultivators are mainly from upper caste Rajputs and Bhumihars. The rapacity of Jehanabad zamindars was legendary. In addition to the exaction of revenue and ever increasing rent from the peasants, the landlords subjected them to various types of forced labour, begar, and levied arbitrary cesses, abwabs. Social oppression of tenants was practised not only through economic means but also through sheer brutality (Das 1992: 122). Over the decades, the productivity in the area declined which augmented exploitation of landless labourers through lowered wages and fewer share of produce for sharecroppers. Besides, the poorer section of rural Jehanabad were also denied rights over gairmazarua (government or public commons) land and all other common village resources. It is needless to mention the continued sexual exploitation of the women from weaker sections of the society. The modus operandi of powerful political leaders of the area in terms of their extension of protection to agrarian vested interest has taken a particularly ominous form. They have backed the formation of caste-based private armies or senas. A number of such senas have come up in the region: the landed Kurmis formed the Bhoomi Sena. The Yadava landlords and rich peasants set up the Lorik Sena, the Bhumihars have their Brahmarshi Sena (and Ranvir Sena as most influential one)3 and the Rajputs nurture the Kuer Sena (Das 1992: 126). In the absence of strong and effective state machinery, the senas could easily go berserk and indulge in looting, raping women and organising massacre in the hamlets of landless labourers.
THE INFLUENCE
OF
NAXALITES
Gradually, the victimised labourers felt the need of organising themselves and they rallied around left organisations like Indian Peoples’ Front (IPF), an erstwhile political outfit of CPI(ML) Liberation. Needless to say, later on more radical Naxalite groups, such as
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Maoist Communist Centre (MCC), People’s War Group (PWG) and Party Unity,4 also made inroads in the area and were successful in bringing some of the villages under their influence. In certain power corridors of Bihar, it is not uncommon to come across the explanation that the caste militias had to come into existence as a response to Dalit/Naxalite violence. On the very face of it, such accounts are erroneous as there were no militia in Bihar during late 1970s when Naxalite groups were probably at the peak of their influence. Surprisingly, when the organisations like CPI(ML) formed their political front, IPF, and decided to enter the arena of legislative and electoral processes, numerous senas proliferated at various sites of this region. Even if a revolutionary organisation is determined to avoid killing innocents and make restrained use of violence, there is no guarantee that the other side will do the same. Massacres of the labouring poor (including women and children) by caste senas in rural Bihar illustrate the problem (Bhatia 2006: 3180). This scenario forced Left organisations to oscillate between armed struggle and political mobilisation; and some amount of ambiguity vis-à-vis their strategies could be discerned in the prevailing discourse among Left groups in 1980s. The simmering tension in Jehanabad often gets manifested through recurring incidences of violence between upper caste private militias and different ultra Left outfits known popularly as Naxalites. Since late 1970s, there has been a phenomenal growth in the instances of conflict leading to death of people mostly from lower socio-economic strata. A considerable change in the perception of the poorer section with regard to their ability to pin down instances of injustices was also clearly observable. The issue of dignity and rights have become central in their acuity. The protest movement of lower caste landless labourers under the leadership of Naxalite groups have ensured that the poor and downtrodden do not accept the repressive treatment any more. They started objecting to anything that hurts their honour. Such mobilisation and protests of lower castes was not accepted and tolerated by caste Hindus and consequent expressions were seen in the formation of caste senas to ‘set things right’. The upper caste groups have been subjugating the rights of poor people and their private militias have been used to keep them under continuous threat. Mutual distrust and tension in the area has become the norm of the day. The trajectory of instances of unjust social structure and cases of persistent violence explicates the failure of the state in implementing land reform
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legislations, providing minimum wages to the agricultural labourers along with a range of practices of socio-economic exploitation of lower caste landless labourers at the hands of upper caste peasantry.
MOBILISING THE LOW CASTE PEASANTRY: A CONCEPTION OF SOCIAL JUSTICE Referring to social arrangements, Rawls emphasises that political, social and economic arrangements define men’s rights and duties and influence their life prospect—what they can expect to be and how well they can hope to do. The intuitive notion here is that this structure contains various social positions and that men born into different positions have different expectations of life determined, in part, by the political system as well as by economic and social circumstances. In this way the institutions of society favour certain starting places over others. These are especially deep inequalities (Rawls 1971: 8). Inequalities in the form of skewed ownership of land and other resources along with caste dominance in various forms, in a way, provided a foothold to ultra Left groups to organise landless labourers and marginal peasantry against all kinds of exploitations. Such mobilisations resulted in regular confrontation between low caste small peasants and labourers on the one side and the upper caste big peasants on the other and as a consequence widespread violence and massacre was witnessed frequently. Retribution is the prime understanding of social justice. All means are justified in the process of ensuring justice and more often than not, violence is justified as the only viable mechanism to ensure justice, here and now. In the face of persistent structural violence, people highlight the inevitability of violent means. ‘Violence is thrust upon us’, ‘Either you take recourse to violence or perish’, and so on, are the frequent logic and justification one keeps hearing. What is interesting about this argument is that it is professed not just by the protagonists of ultra Left, but also by the propertied and powerful upper castes: ‘we are forced to pick up arms to save our land and dignity from the onslaught of the Naxals,’ has been a common refrain of Ranvir Sena supporters, for instance and their likes in the past (Kumar 2003: 4983). Questioning the efficacy of such notion of justice, Rawls claims that ‘physical conflict
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and resort to arms result in an ordering; certain claims do win out over others. The main objection to this ordering is not that it may be intransitive. Rather, it is to avoid the appeal to force and … that the principle of rights and justice are accepted. Thus I assume that to each according to his threat advantage is not a conception of justice’ (Rawls 1972: 134). As the locale of Jehanabad shows, such expressions of violence ironically in the name of securing justice and fight for dignity exposed the shallowness of state’s institutional justice system. Wilful erosion of state’s institutional structures does not naturally mean doing away the cravings for a just life amongst people. Thus organising jan-adalat (people’s court) around the issues of sexual oppression, low wages and land issues has been a regular strategy of liberation and other groups where judgements such as seizure of land and to practice aarthik nakebandi (economic blockage) are often delivered. Large numbers of people are approaching such jan-adalat for seeking redressal of everyday injustices, which reflects their lack of faith and confidence in institutionalised justice delivery mechanism. The Ranvir Sena, on the other hand, questions the practice of social justice and highlights ‘Maale ne daliton ka man badha diya hai’ (Maale has spoiled the Dalits beyond the tolerable limits) and therefore the need to keep them in check through whatever means possible. Traversing through the predicament of logic and justification of violence vis-à-vis justice delivery, one comes across a range of experiences of oppression, humiliation and injustices juxtaposed with the failure of state and Criminal Justice System (CJS) to prove its credentials as custodian of justice. By challenging the state’s monopoly of violence, and asserting the right of its opponents to resort to the same violence, the Naxalite movement set the tone for political discourse between the Indian state and the discontented segments of its population (Banerjee 2002). Inevitability of violence is repeatedly eulogised as the social wisdom and only effective recourse of settling scores. It is also observed that Dalits and EBCs have been able to assert for their dignity and rights in villages where the movement has greater influence. As stated above, one needs to take into account that apart from land and wages, izzat (dignity) was one of the most important rallying points for the poor peasants and labourers in the area. It also remains one of the critical defining factors behind justifying violence as a
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primary means of retributive justice. In the backdrop of the semiagrarian society of Bihar, violence is often directed against honour and status to defame and demoralise the adversary. Here it is contextual to relate with Palshikar’s understanding of humiliation, where he says ‘Revenge, retribution and forgiveness are the main historically evolved responses to humiliation.’ He believes that humiliation is essentially a communicative interaction that in protesting as well as in insulting one conveys something. Palshikar continues, ‘Since violence is literally speaking destruction, or attempted destruction of something regarded by somebody as inviolate, in the context of what we are discussing here, it may be permissible to run the ideas of violence and retaliatory humiliation together’ (Palshikar 2005: 5431). Innumerable instances of everyday humiliation, indignity and exploitation ultimately forced the labouring poor to break their ‘culture of silence’. The tone and tenor of subaltern conversation now clearly demonstrates their ability to critically understand the hegemonic socio-economic and political structure of the society. And it has certainly evolved through their encounter with language of protest and revolution over several years; and credit certainly goes to several Left and ultra Left groups active in the area.5 The present study intends to locate the fundamental premises around the issue of izzat and everyday humiliation vis-à-vis sense of injustice and consequent social unrest in the locale of Jehanabad. In order to reach out and capture the meanings of justice entrapped in the everyday discourse, it was considered prudent to confine the field study to ideal-typical settings. Consequently, an ethnographic account of two villages, Damuha and Noanwa helped us understand long drawn mobilisation, struggle and recourse to violence as means to call for dignity, that is, ensuring social justice for groups and communities hitherto subjected to injustice on the socio-political ladder of southern Bihar. The present endeavour was also prompted by a desire to get an insight about people’s understanding and interpretation of justice, which is an outcome of two decades of sustained struggle for seeking justice and rights. Conscious effort was made to relate with people not as respondents but to build up a holistic understanding of them as social actors, in their relationship with others. While analysing the saga of humiliation, indignity and subsequent protest and struggle to seek justice, the study avoids any generalisation, whatsoever.
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VILLAGE: DAMUHA The village of Damuha has made a niche for itself on account of large-scale mobilisation and sustained struggled against social injustice and oppressive practices by the upper caste populace. Damuha, a part of Damuha panchayat of Kako revenue block, is situated only 4 km away from the district headquarter of Jehanabad. The village comprises mainly of Dalit and backward caste people (see Table 1.1 and Figure 1.1). Most Dalit houses in the village are pucca (concrete) as it is constructed under Indira Aawas Yojana, a housing scheme of GoI for poorer and marginalised sections of the society. The village is surrounded by several small hamlets namely Laxman Bigha, Mundichak, Jogihaat and Gulzarbagh. Two upper castes majority villages namely Anwa and Hajipur have dominated Damuha panchayat’s economy and polity. Whereas Rajput caste group is in majority in Anwa, Bhumihars have a predominant presence in Hajipur. Damuha panchayat is infamous for Damuha-Khagari massacre in which Hareram Yadav gang killed 11 Dalit–Mushahars6 in the year 1988; similarly the adjoining Anwa village is notorious for the feudal outbursts of Rajputs. Cases of injustice and violence TABLE 1.1
Caste Composition of the Village Name of the Caste
Households
Yadav Koiri Mallah Ravidas (Chamar) Paswan (Dusaadh) Bania
60 40 40 25 20 20
Badhai–Lohaar Thakur (Nai) Ramaani Sonaar Manjhi Chaudhri (Pasi) Kumhar Total Household
32 06 07 01 15 10 02 278
Source: Author.
Traditional Occupation Cattle rearing, agricultural labour Marginal landholding, agricultural labour Boatman, fishing, agricultural labour Leather worker, agricultural labour Agricultural labour Extraction of oil, agricultural labour, retail vendor Carpenter, agricultural labour Barber, agricultural labour Agricultural labour Goldsmith, agricultural labour Agricultural labour Toddy extraction, agricultural labour Potter, agricultural labour
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FIGURE 1.1
Sketch Map of Damuha Village
Source: Author.
against Dalits and backward castes, misbehaviour with Dalit women and range of other brutal forms of oppressions and exploitations had been everyday phenomenon in and around the village chosen for the present study. Understanding the Process of Action and Reaction, Exploitation and Revenge through People’s Narratives Our first meeting was with Mitthu Vishwakarma, who appeared disposed to talk to a stranger like the present researcher about something that indeed generates a chain of painful images emanating out of the iniquitous social topography of south Bihar. The researcher would like to share and convey the sense of agitation written on his face during the course of his narration of events woven around the plight and injustice that have been experienced by the villagers over the years. Talking about the landlessness, he says, ‘hamare gaon ke “mori” tak’ (where the rain water drops from tiled roof ), ‘Anwa aur Hajipur ke bade logon ki jamin hai’ (upper caste people of Anwa
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and Hajipur have landholdings till our huts). The expression ‘mori tak’ reveals complete landlessness of the Dalits and their dependence on daily wage labour in the fields of upper caste people of adjoining villages. ‘Except for very few, most of us are entirely dependent upon the agricultural labourers’ work in Anwa and Hajipur,’ says Mitthu. Talking about two neighbouring upper caste dominated villages, he mentioned that Hajipur is little farther away (1.5 km) and the zamindari system was never prevalent there. He added that as a reason the latter did not behave so harshly vis-à-vis Damuha villagers. In contrast, Anwa was a small zamindari village and they interfered in the everyday socio-cultural and political life of Damuha. Mitthu recollects, ‘my grandfather told us that Anwa people used to forcibly take away vegetables and milk from our houses as a matter of right. Besides, for feasts they would demand and take away goats by sending their henchmen.’ The system was assiduously built that for any of these commodities, there was no mechanism for payment, and so on. On the service side, cobblers had to make shoes for them free of cost, iron smiths had to make hal ka faal, khurpi, hansua, gandasi, kudaal (implements used in agriculture); carpenters had to prepare hal (wooden frame for the plough); potters had to provide earthen pot; barbers had to cut hairs and nails. Unlike the conventional zazmani system prevalent in different parts where zamindars used to provide support in cash and kind to the occupational caste groups, here it was complete callousness built on unjust and exploitative demands from the Rajputs of Anwa. Besides, upper caste Rajputs also practised dola pratha.7 It was one of such heinous and undignified practice that severely affected the psyche of the people and communities who were at the receiving end. Tormented Mitthu recounted that it was 30 years since his grandfather died; however, there has been no change in the behaviour of Anwa Rajputs and experiences of injustice and exploitation have been part of the growing up of the next generation too. Our next engagement was with 70 years old Indradeo Mistri, who added that they were forced to accept such injustice as their destiny— a painful acceptance linked to their cognitive structure. For ‘bade log’ (upper caste) the daughter of a poor is like personal property on whose body their ownership is divinely ordained. He continues, one Bhusan Singh, son of Ashok Singh of Anwa established sexual relation with the daughter of Rabidas (shaadi ka jhansa de ke) on false
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pretext and the promise of getting married to her. However, once she was pregnant, he refused to marry and forced her to go through an abortion. In another incident, after 2006 panchayat election Gandhi Singh’s son Ballu Singh raped the daughter of Mittu Manjhi. Manjhi, the anguished victim’s father was subsequently forcibly stopped from lodging complaint. He was given Rs 500 and few kilograms of grain as compensation and the matter was resolved—what a price for the dignity and honour of women from subjugated communities! The most ironical part of such narratives is that they are recurring episodes and not isolated aberrations. Here it is also important to understand that defiance of diktat during electoral process often results in revenge from the hegemonic upper caste and the consequences are predictable in the shape of rape, murder and/or burning the fields or orchestrating massacre. The history of the flaming fields of Jehanabad is testimony of such correlations between electoral process and scaling up of injustice and violence. However, according to Ram Prakash Mahato, with change of time and certain desirable developments, the underprivileged have also started talking about izzat aur adhikaar (dignity and rights). The passionate 40-year old Mahato emphasises about the growing consciousness among his people regarding the misdeeds of upper caste people. He says, ‘Earlier we could never dare to question or oppose it. There were few dallals8 of Rajputs amongst us and whenever we raised any issue, they would lose no time in conveying it to their bosses bringing more of atrocity and punishment on to us.’ Mahato highlighted the fact that after independence these upper caste people joined Congress and other mainstream political parties and became Members of Legislative Assembly (MLAs), chairmen of municipalities, Mukhiya and Sarpanch of villages—the new institutional structures of power and privileges. Bureaucrats and police personnel from top to bottom were hand in gloves with the upper caste goons and the lower caste people were totally confused about their future course of action. Leave aside political parties like Congress and Socialists, even CPI politicians were approaching upper caste for votes as also for donation. Chipping in the discussion 45 years old Rajkumari Devi furiously recounts the contemptuous and derogatory proverbs and expressions used by Anwa Rajputs for Dalits. ‘Proverbs such as Rar ki jaane bara ke swad (the lower caste people cannot appreciate precious things) and phrases such as rar-raiyan (a derogatory reference to the lower caste)
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and so on, were quite demeaning for us but we had to swallow it with a strong pinch of humiliation since ages,’ she concludes succinctly. Seventy-five years old Lalmuni Devi feels strongly about the negative impact of Anwa peoples on the economy of Damuha. ‘Earlier our village (Damuha) was famous for a very big haat (in many respect it was bigger than Jehanabad and Masaudhi bazaar)—the spread was between Mangusao’s house to Thakurbari (roughly 500 metres). People used to come to do marketing here from far away places (even as far away as 10 km) but due to continuous terror of upper caste goons from Anwa, it gradually lost its charm and finally the haat shifted to another village.’ The group at this point was joined by Rajkumari Devi who entered into the discussion and shared her experiences while working in the field. ‘Womenfolk, who were working at the fields of zamindars during sowing season, were not allowed to get water after their breakfast. Often they had problems in going for toilet in the open fields due to constant presence of stooges of zamindars.’ She hummed one of the popular folk songs capturing the plight of landless labourers: Khet Mazdoor ke baa ajbe kahani, Khetba main khatat biti jaala jindgaani Hokhate bihaan jaale maalik ke duari, late sait bhela pe sune pare gaari …. Khai ke na anna bhar pet, penhe ke na kapda; dhahal dhimilayal ghar lauke nahi khapda Kaisan azadi milal hamra na bujhael, mehnat majooriye main zindagi seeraiyel. (Life of an agricultural labourer is indeed astounding, for the entire life passes on the same patch of land As the morning dawns we are supposed to be at the landlord’s patio and the delay invariably gets insults for us The wages we get do not suffice for food or cloth and our homes look ruined We fail to figure out what kind of freedom we have got, for we have spent life like the wretched on the fields).
When asked why they are not opting for institutional-legal channels for redressal of their grievances, Rajkumari Devi responded, … on several occasions we lodged complaint in Kako police station, Jehanabad and even approached sub-divisional officers and Superintendent of Police but it did not improve the situation. Everyone had one and the same advice: stay in
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harmony, which in our situation meant nothing but to tolerate all indignities and exploitation without murmur.
Around 1984–85, son of a cobbler got married with the girl named Rani from Punpun in Patna district. That was the time when Naxalite movement was at its peak in Punpun. Rani is quite forthcoming in sharing the history of fight for justice and processes of mobilisation in the village: When I came to Damuha after my marriage I shared with other womenfolk in the village the changes that had taken place in my village and area. Earlier the situation was no better even in my village, but when poor people started organising themselves and protested vehemently, things started changing gradually. Kurmi zamindars of our area formed Bhumi Sena9 and through their caste militia they tried to repress the voices of protests of poor. Scores of killings and massacres followed, menfolk of our area were put behind the bars on false charges. Despite the efforts to suppress our protest, we fought back aggressively. I feel that sharing of my experiences motivated the people of Damuha who were already getting restless to take the upper caste exploitation and injustices head-on. The process of gaining true consciousness and unflinching faith in the solidarity of people on the margins got momentum with the establishment contacts with Indian Peoples’ Front. Meetings of the poor around alaav (around fire) became regular sight and the agenda was how to fight back for our rights and dignity against all odds.
While the researcher was trying to come to terms with the narratives of exploitation and struggle, Munna Chaudhry, a boy of Pasi caste, was climbing up a toddy tree to take out toddy. In the meantime Babu10 Rajnandan Singh of Anwa arrived with one of his lathait (henchman) who was a Yadav by caste. Immediately, using abusive language, Singh told Munna to give toddy to his lathait free of cost. Munna came down without taking out toddy and protested against the language used. When Rajnandan Singh continued abusing, Munna attacked Singh with pasuli (a sharp edged weapon used in extracting toddy leaves). Singh escaped miraculously but the Rajputs of Anwa got together and set the house of Munna on fire. Dalits were able to extinguish the fire. The process of action and reaction, exploitation and revenge has indeed become part of everyday life, which is in sharp contrast to the way sufferings were earlier taken as natural by the underprivileged. There were several occasions when organised lot of Dalit and backward caste communities drove them away from village. We were informed by the villagers that even when the
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upper caste goons came prepared with gohar,11 they found the Dalits equally equipped and ready to withstand and react, forcing them to retreat. ‘We made it obvious to them that time has changed; pay and take milk. We ensured that words of servitude and subordination, continuing since ages, are intolerable anymore,’ says Munna. Disposing of the Shackles of Deep-rooted Injustice Perpetual discrimination in temples and festivals was the norm of the time. Dalits were not allowed to enter inside the sanctum sanctorum of temples prior to 1986. We decided that either everyone would go to worship inside or no one shall—neither Rajput nor Paswan. It became one of the most serious issues of conflict. Rajputs of Anwa came with an interesting compromise saying that, ‘you can go inside but you should not touch the feet of the deity; only we shall be privileged to do so.’ We immediately replied back that ‘yahan babadham wala hisaab chalega, sabhi jayenge aur sabhi jal chadhayenge, murti ko koi nahi chhuyega’ (we will practise Deoghar12 system which means everyone will go inside, everyone would put water on deity but no one would touch it). Since then this is what is practiced in our village. It is however another matter that rarely does Anwa Rajput comes here now. They do call us in the Shiv mandir of their village, and we visit them for bhajan and kirtan (singing devotional songs).
Mitthu Vishwakarma, who led the movement, recollected ‘when the organisation and movement of Indian People’s Front (IPF) gained momentum and the Rajputs of Anwa fought and lost many times, they took the recourse of protecting a gang of thieves under the leadership of Hareram Yadav. Ranging from grains in the paddy field to our cowsheds to our goats, everywhere insecurity loomed large due to menace of stealing by the gang. It was difficult to travel between Jehanabad to Damuha after 6 o’clock in the evening. On several occasions we requested the local administration for our safety and security but they turned a deaf ear. Soon we discovered that the gang provides the share to police as well. A sense of disillusionment about the administration led to a tremendous desire to fight for justice. This precisely was the time when Hareram Yadav gang orchestrated another massacre in Golampur village which is only 8 km away from Damuha. We identified some of the notorious members of the group namely Hareram Yadav, Tunnu Paswan, Rajesh Yadav, Bihari Yadav, Anandi Yadav, Deena Yadav, Bhangi Yadav and Ramji Yadav. Under the guidance and leadership of Party (IPF), we organised ourselves
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to eliminate the gang. Within few months Tunnu Paswan, Ramji Yadav and Bhangi Yadav were killed. Bhangi Yadav was killed in broad daylight when he was coming from Khalishpur where he stole a paddy-thrashing machine from the house of one of the comrades. We caught hold of him just in front of Jogiadih police camp and eliminated him. The gang got extremely petrified by the incident and cases of stealing were stopped altogether.’ As the readers shall observe, the narratives of the incidences shared have strong elements of violence. From being perceived as instruments of exploitation and oppressions earlier, violence has undergone transformations for them, consequently appearing as a weapon of the weak. The centrality of violence as an instrument to seek justice also underlines the reality that poor have hardly any reason to keep reposing faith in legal-institutional mechanism of justice delivery. This incident turned out to be a rallying point and the poor and downtrodden people started mobilising themselves in a much more organised way. ‘Earlier we were always scared of “babu log” (upper caste people) and felt petrified by the mere sight of “lal topi wala” (police personnel). The situation has changed drastically as “babu log” avoid moving out from their houses after dusk and police squads do not dare to enter our village after sun set.’ This indeed is an expression of villagers’ sense of hard earned accomplishment in disposing of the shackles of deep-rooted injustice ingrained in the society for long. Says Arun Thakur, a former cadre of PWG: As always upper caste and police administration were hand in glove and they made another plot to thwart our effort to seek justice and rights. On 11 August 1988, they organised another massacre through Hareram gang. In DamuhaKhagari massacre, 11 Dalit–Mushahar were killed; however, this incident failed to instil fear amongst people. On the other hand, it culminated into palpable anger amongst poor in the entire region. The same gang had orchestrated a massacre in Nonhi-Nagwa village of same Kako revenue block only two months back.
Here it is worth mentioning that in both of these villages landless labourers were getting organised under the influence of IPF. Earlier, when Bhagwat Jha Azad, the then Chief Minister of Bihar visited the massacre site in Nonhi-Nagwa, people informed him about the crimes perpetrated by Hareram Gang and he assured them that there would not be any more massacre. ‘Damuha-Khagri massacre made people
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extremely angry and when Azad came to the site, people in thousands gheraoed him and IPF activist Birendra Vidrohi blackened the visiting CM’s face, thus using the occasion to convey the general sense of betrayal felt by the subjugated communities in the region. ‘Vidrohi ne jo kaalikh lagaya who Mushahar ke ghar ke dirkha pe rakhe diye ki kaalikh thi’ (the black powder used by Vidrohi was taken out of the lamp kept at a Mushahar’s front-yard). For administration it was an act of rajdroh (act of treason), for us it was one of the great symbolic manifestation of our liberation.’ Talking about the reason behind the Nonhi-Nagwa massacre, 50 years old Charmanti Devi told us why her husband Vriksh Manjhi became one of the victims of the massacre. ‘A local country liquor shop owner, Ramashish was angry at my husband as he was mobilising people for the closure of the shop. Due to people’s opposition under IPF’s leadership, Ramashish was forced to close the shop. He had threatened us of dire consequences,’ says Charmanti Devi. After this massacre, government announced the building of the approach road from Hajipur to Damuha but it never started. ‘Forty youths of our village took the vow to construct the road through shramdaan. The 1.5 km long road, by which you have come, is not a government road; it is the road of our struggle, labour, blood and sweat,’ Arun informs with a sense of pride. ‘Even today men and women from our village go to Anwa as agricultural labourers and a good number of them go to sell vegetables, clothes and others things.’ They were quick to add that now Anwa Rajputs use sammanjanak shabd (respectable expressions). In between once or twice they tried to revert back to their old behaviour but organised youth of the village went to Anwa and made them aware of the changed social-political situation. Since then things are nearly normal. However, the noticeable aspect is that in the absence of CPI(ML) organisation in Anwa, Dalits and backward caste are still not treated well in the village and repression and exploitation continues unabated there. The villagers termed as absurd propaganda the fact that ‘babu log’ have been spreading rumours of CPI(ML) terror and that the area lost its peace and tranquillity since the advent of CPI(ML) in the region. They sarcastically claimed that earlier when they worked as bonded labour, took exploitation and oppression as natural to them and the izzat of their womenfolk as dependent merely on the will of
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the upper castes, the area indeed was peaceful. Amity also prevailed when they did not question the denial of their voting rights, entry in the temples, and dehumanised treatment accorded to them. Because they did not protest the sufferings they were undergoing, there was peace all around. ‘Ham logon ne taya kiya ki bade logon ke anyaya pe aadharit shanti ab nahi chalegi’ (we collectively decided that so-called peace and tranquillity built on the edifice of injustices and exploitation of upper caste cannot be accepted anymore). ‘Raising the voice against injustice and we became killers, extremists and Naxalites in the eyes of the administration, which shamelessly acted as the protector of the upper caste marauders.’ Gaon-gaon ghumli auro hum saharwa ghumli aye Ram, Bhaiya ho saara jahanwa lage suna janwaadi samvidhan bina hey Ram Koi re anchalwa main badhwa to koi main sukharwa dekhli hey Ram Bhaiya ho, mange chalali hum adhikaarwa te hamni ke jailwa milal hey Ram. (We have journeyed through the villages and the towns My brother! The world appears barren without a genuinely people’s constitution Our eyes have seen in this land flood at one place, while drought at another My brother! Whenever we asked for our rights, we were shown the corridors of the jail).
The contextualisation tries to unravel the strong sense of injustice and infringement of fundamental rights of poor. ‘We neither wish to kill people nor the idea is to spread terror, however, we are clear and conscious that we should have a right to live with dignity.’ ‘During Congress regime till 1989 whatever happened, people used to say that it is a party of “bare log” and therefore the poor are getting exploited. When Lalu Prasad came to power and assured that poor would get social justice, we saw a ray of hope for better days. However, during 15-year rule of his party, the administration responded in the same old fashion. The only change which was visible was the replacement of old feudal lords by few newer ones; earlier brokerage in the bank–police station–revenue block offices were the monopoly of Brahman–Rajput–Bhumihars; in Lalu Prasad’s regime Yadavs took charge. The brokerage of bus depot, bazaar samiti, country liquors’ shops, block offices, police stations and other such places came in control of people belonging to the social bases of Lalu Prasad.
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We haven’t got anything from government whatsoever—na sarson na rai. We have no qualms about our belief that whatever we are going to get, it is through our “sangathan and sangharsh” (organisation and struggle),’ Mitthu concludes.
VILLAGE: NOANWA Noanwa is the biggest village in the Noanwa panchayat of the newly constituted revenue block, Ratni-Faridpur of Jehanabad district. It is situated 14 km west and south from Jehanabad district headquarter. For reaching the village one needs to go to Nehalpur market on Jehanabad-Arwal main road, which is situated 9 km west from Jehanabad district headquarter. From there one must travel southward through a dilapidated road going towards Shakurabad market. Noanwa is situated 5 km from Nehalpur, at the western side of the road (see Figure 1.2). FIGURE 1.2
Sketch Map of Noanwa
Source: Author.
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The general belief is that it is the biggest village in Magadh range (Gaya-Nawada-Aurangabad, Jehanabad and Arwal district). It is situated at the bank of Baldaiya river, which is a tributary of Punpun river. The population is around 6,000 with 3,400 electorates in this village who are part of Makhdumpur assembly constituency. Politically, Noanwa is considered quite an influential village (see Table 1.2). The mukhiya of Noanwa panchayat is Smt. Kiran Singh, a Bhumihar by caste whose husband Mr Rangnath Sharma is associated with Janata Dal (United). It is a general belief that despite belonging to Bhumihar caste, the family was opposed to Ranvir Sena even during its peak phase of success. TABLE 1.2
Caste/Community Composition of the Village Name of Caste/ Community Bhumihar Chamar Mushahar Paswan Doom Kayasth Brahmins Kushwaha Nai Kahar Dhobi Kumhar Kandu Yadav Teli Bania Sonar Lohaar Badhai Mallah Sinduria Mali Pasi Tamoli Muslims Total Households Source: Author.
No. of Families 250 50 30 10 08 10 25 67 20 20 04 15 15 04 10 10 05 10 20 10 10 03 04 02 30 632
Traditional Occupation Landowners Leather worker, agricultural labour Agricultural labour, cattle rearing Some land, agricultural labour Landless labourer Government and non-government employment Priestly function, some land, employed Some land, agricultural labour Barber, agricultural labour Water and luggage bearer, agricultural labour Washerman, agricultural labour Potter, agricultural labour Agricultural labour Some land, cattle rearing, agricultural labour Oil extraction, retail vendor, some land Small business, some land Goldsmith, some land Iron smith, agricultural labour Carpenter, agricultural labour Boatman, Fishing, agricultural labour Agricultural labour Gardener, agricultural labour Toddy extraction, agricultural labour Makes paan (betel), agricultural labour Agricultural labour
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Noanwa seems to fit well within the traditional independent village community system. The location of the village, large deeh bhumai (residential area) and existence of tall mud houses even in 21st century indicate that the history of this village goes back for centuries. Generally, during British zamindari system Jehanabad district was under Tekaari raj but surprisingly such a big village like Noanwa, which has an area of 4,500 bigha, was not under any estate. Farmers used to deposit taxes directly in the collectorate. The settlement pattern in the village is largely compact and a concrete road divides the houses of Bhumihars and other caste groups. Bhumihars own most of the agricultural land in the village. Few Kushwahas and Yadavs also have some landholdings. Among Dalits, only Paswans have small patches of land in their name. Rest of the populace are either agricultural labourers or depend on traditional occupation for their life and livelihood. Of late Bhumihars have started giving land under bataidari13 system and these lands are being cultivated by EBC or Dalits. Nowadays even some Bhumihar households have started taking land on batai for cultivation, which was unheard of earlier. In the absence of appropriate arrangement for irrigation, nagdi patta per jamin lene-dene ki wyavastha nahi hai (sale-deed where immediate payment is made). Even now the market forces have not penetrated much in this village. Due to jarjar (dilapidated) road, there is no public transport system to and from district headquarters. There is a government middle school in the village dating back to the pre-independence period. Besides, a six-bed hospital was constructed in 1982–83, which has now become a decrepit building reminding people that it was meant to be a hospital. The political influence of Noanwa in yesteryears is easily understood by the fact that it is the only village where a water tank was constructed and pipeline was fixed in every household. Staffs for the purpose are still posted and they continue to draw their salary. However, the pipes and the tank have never seen water. The researcher would like to share one of the interesting facts about the system of ‘bataia suwar’; under this arrangement, Dalits keep pigs as pet and the money for purchasing the same comes from the women members of Bhumihar caste. The arrangement is akin to ‘batai’ system, wherein when the pigs are sold off; the money gets divided between both the parties. So far keeping in view the polluting nature of the pigs, it appeared implausible that caste Hindu women shall be at the
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one end of this important deal. However, such important revelation surfaced when an agitated Kailash Ram started divulging the covert layers and aspects of relationships between communities. It was also observed that all new concrete constructions in the village were Dalit and EBC-OBC houses. None of the Bhumihar families constructed new houses and many have not even painted their homes for several years. The reason stated is that farming has become unviable for Bhumihars due to higher wages demanded by the labourers and decreasing productivity of the land. On the other hand, the combine of push and pull factor of the economy have forced several Dalit and backward caste youths to move out of the area to other states to earn. The relative and recent prosperity in their households here is on account of the money they have been sending back to their village. As mentioned earlier, the Bhumihars are the primary landholders of the area and this has made them hegemonise the socio-political domain. A very long regime of hegemony has further nurtured a mindset, which is feudal to the core. Enduring mechanism and episodes of exploitation and oppression has resulted in their disapproving disposition towards all progressive movements, ideologies and individuals. In one of the worst ironies of history the area was known as epicentre of antizamindari movement under the leadership of Swami Shahjanand Saraswati and Pandit Yadunandan Sharma. As a consequence to these movements, the area was able to nurture different types of communist and other progressive struggles. Oral Narratives of Some Members of the Lower Caste of Noanwa Village While recounting the origin and evolution of people’s movement for the assertion of justice, Kailash Ram said, ‘in the post independence phase, the leadership of ruling Congress party went in the hands of ex-zamindars belonging to Bhumihar caste and this leadership was averse to all kinds of progressive movements and Noanwa thus became a representative village. As the exploitation and repression over poor crossed threshold level of tolerance, mobilisation process against socioeconomic, cultural and political exploitation gained momentum in the 1980s and the struggle became fierce. Bhumihars were notorious
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for their ill temperament and feudal and abusive languages (hey, ho, aare, tora—derogatory expressions used for communication against the lower caste). ‘Earlier we were given food in the aluminium plate. We protested and held meetings. We refused to eat in aluminium plate. Thereafter, they started giving food in steel plate,’ say Kailash Ram. He adds, ‘During sowing season, it was customary to sing songs in praise of zamindars. Our women folk refused to sing such songs and we started singing “janwaadi” (revolutionary) songs and the practice continues till now.’ Similar to the narratives of Anwa, people here too said that they tolerated misbehaviour and misdemeanour of the Bhumihars with their womenfolk and all other forms of torture as part of their destiny. However, the fierce struggle of 1970s in Bhojpur and in the beginning of 1980s in Dhanrua, Punpun and Vikram of Patna district encouraged them to mobilise themselves and fight against the tyranny of Noanwa. The simmering discontent among the Dalits and EBCs of Noanwa was triggered off during Holi festival in 1983. Normally, during holika dahan the ill-tempered youths of Bhumihar caste used to enter the by-lanes and hamlets of poor people singing holi songs. Invariably these songs always use vulgar and abusive expressions naming specific women from Dalit and EBC families. This practice was extremely humiliating and unnerving for the underprivileged section for several years but they were not able to muster organisational strength and courage to resist the same. To be humiliated is to be rendered inferior or deficient in some respect by others in a deliberate and destructive way. It was therefore a deeply distressing experience. It is something one cannot get over easily, and those who have to face it everyday sense a constant threat to their sense of self-worth (Palshikar 2005: 5431). In 1983, when the practice was repeated as always, Kailash Ram, a young boy from EBC14 caste opposed it openly. ‘I managed to gather all my strength to declare in public that this is offensive to our being, as we must be treated with dignity. Such vociferous opposition was felt to be a threat by the feudal Bhumihars for this kind of public outrage was unbelievable to them. In front of Lalaji’s frontyard15 (where we were sitting), I was beaten black and blue, presuming my unconscious state as dead, they left me then and there. This one incident later culminated into a major symbol of unity for the underprivileged people in our village. We made contacts with CPI(ML) group and regular meetings
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started taking place in our hamlets. Frequent visit of party leaders and organisation of strong cadre in the village posed a very serious threat for the upper caste Bhumihars and they realised the possible danger in case they dare to repeat such undignified behaviour and acts of oppression. As one can see that the genesis of the struggle here was around the issue of prestige. Our demand always had been umra ke hisaab se hum logon ke liye bhi aise hi shabdon ka istemaal ho jaisa hum unke liye karte hain (taking age as the criterion and determinants of address and expression, they should also use the same idioms as we use for them). The struggle started on the issue of dignity and other issues gradually got attached to it.’ Surati Devi, belonging to Mushahar caste emphasises that poor women are feeling really liberated now and they are participating actively in the meetings of CPI(ML). It was felt that culture of protest and struggle has replaced hitherto dominant culture of silence in this Bhumihar dominated village. Taking Recourse to Weapons and Violence to Settle Scores of Age-old Injustices Surati Devi continues, ‘When CPI(ML) organisation was not there in our village we had to run from pillar to post in order to seek justice. Sabke saamne dason noh aur battishon daant nipore (we begged for justice with folded hands) but did not get any justice. On the visits by the DIGs and SPs in this conflict-ridden village, they advised us to stay in harmony and you must see what they meant by peace and unity. Rather than addressing the root cause of tension they used to preach to us about peace and harmony.’ Such responses find its echo in the writing of Rawls, when he says, ‘Some have held that in fact substantive and formal justice tend to go together and therefore that at least grossly unjust institutions are never, or at any rate rarely, impartially and consistently administered’ (Rawls 1971: 59). The villagers we spoke to were near unanimous in putting forth the view that their concern and demands were addressed only due to strong protest and struggle under CPI(ML) leadership. ‘We realised that if we wanted to live with dignity we will have to fight for it and secure the same and we must also be prepared to sacrifice our lives.’ The story line here too bore similar script as we were informed that hundreds
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of youths were put behind the bars under false charges and baseless accusations. However the spirited struggle continued unabated despite feudal and administrative repression in tandem. Administration had the tendency to catch hold of any black skinned youth ‘aur ghosna kar dete the ki male ka area commander arrest ho gaya’ (any black skinned youth—a reference to lower caste and announce that CPI(ML) area commander has been arrested). The people around us were anguished that even the judiciary was biased in favour of upper castes and that made them doubly unhappy with the legal-political structures. ‘We could never get bail from trial courts and we did not have money to fight our cases in the high courts; as a result we had to languish in jails for several years together. Till late 1980s we had not seen ballot papers as upper caste people captured booths and denied us the right. Whenever we mustered courage to demand our right to vote, we got a threat to life. The choice remained between the adult franchise and the life of near and dear ones.’ In the light of such blatant denial of rights and exploitation of all kind and that too for decades altogether, they felt that they needed to take recourse to weapons and violence to settle scores of age-old injustices. They also strongly felt that we ought to counteract against the violence perpetrated by several private caste militias—the most recent and most organised one has indeed been the Ranvir Sena. With the aim of repulsing the organised onslaught of the Sena and the administration, around a dozen people from amongst the Dalits and the EBCs became full time activists of CPI(ML) in their village and they started organising people in the nearby villages as well. ‘We never believed in violence and armed struggle and we agreed to resort to the same only as a desperate bid when nothing else was coming to our rescue.’ Elaborating further, they added that when there is nothing to cook for lunch and no grains for dinner, when children do not have cloth to cover their body, when children cannot get books to go to school with, how could they ever think of getting and holding guns? There indeed is a qualitative change in the interaction with and everyday behaviour of Bhumihars vis-à-vis Dalits and backward castes. They sit together and discuss issues; credit to some extent goes to CPI(ML) effort, which brought people of different castes under its influence. However, Kariman Das put it upfront that they are sharing the cot with Bhumihars as a result of long drawn struggle. Bhumihars of Noanwa seems restrained and visibly anxious to avoid
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any confrontations. It appears that political equation of the village has changed substantially and under pressure Bhumihars have accepted that even poor people have the right to life with dignity. Behind the façade of an apparent amity, they lose no opportunity to mention that on account of long drawn struggle, the development of the village has indeed been adversely affected and as a result everyone is suffering. As indicated in the case of Damuha, the instances of Bhumihars ploughing their land themselves and also of taking land on ‘batai’ are cited as the change visible in the village. This is because marginal farmers are not able to pay the prevailing wages and coercing labourers to accept low wages cannot be thought of anymore. Contesting some of the views expressed by Dalits, Rangnath Sharma puts the blame on faulty investigation by police. ‘Police often proceed on the basis of FIR in which many innocent people also get implicated. I was always against organisations like the Ranvir Sena but even I was named as accused in Mianpur massacre. My name got cleared after some time.’ Despite his political clout in the panchayat and district, he was opposed by an aged Dalit, Kariman Das who emphasised that justice was possible through struggle only. ‘It is a fact that few innocent get implicated in false cases but the upper caste landlords and their goons have started negotiating and entering into dialogue with us only after a long phase of struggle. Previously no one was even bothered to discuss anything with us. Tell us, why we were not allowed to enter thakurbari (temple) earlier. Even school was shut down due to tension. And you know the reason of tension; our children were always forced to sit in the back. Derogatory language and humiliating behaviour is the bottom line behind tension.’ One is surprised to hear frequent uses of chaste Hindi words like sangathan (organisation), sangharsh (struggle), shatru varg (class enemy), vichardhara (ideology) and so on, from an illiterate person like Das but soon one realises that such expressions are part of everyday lexicon of struggle for justice. One really relates with Lucas here, when he writes, ‘If I talk only about justice, I am in danger of relapsing into platitudes: it is when I get hot under the collar about some specific piece of unfairness, that my eloquence has an edge to it, and I really know what is getting my goat’ (Lucas 1980: 5). Eloquence in language and precision in strategies is further demonstrated when one hears Ramprit Vishwakarma: ‘Urebi boli fassad ki jar hai (foul language is the root of all problem).’ Citing her interview with Party unity cadre,
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Bhatia quotes, ‘Feudalism will have to be rooted out steadily, otherwise it will uproot you. Samantvaad har aadmi pe chhaya hua hai (feudalism lies like a shadow on every person). Until feudalism is rooted out kranti (revolution) cannot be achieved’ (Bhatia 2005: 1540).
CONCLUSION The study of both the villages highlights the issue of indignity, misbehaviour, ill temperament and so on, by the upper echelon of the society as prime locus around which struggle for justice and assertion of rights has ensued and been sustained. Izzat and issues associated with it dominate the inter-community relations in Jehanabad. This is not to mean that economic exploitation and class antagonism due to ownership and control over economic means has insignificant relevance for the poorer section. What is problematic is the fact that in the process of analysing the social unrest in Jehanabad, scholars and journalists often overemphasise the payment of minimum wages and distribution of land; unfortunately less stress is given to the agitation around izzat (dignity or honour), which more often than not proved to be catalysts for mobilisation and struggle. The culture and language of politics in Jehanabad is deeply embedded around processes of mobilisation of landless labourers for securing right to dignity and justice against everyday oppression in some or the other form. Once organised under the aegis of CPI(ML) kind of group, issue of minimum wage, land to the tiller and control over gairmazarua land and other resources were obviously taken up and the struggle could thus be sustained for long. These groups moved beyond the classical Marxist position, which analyse inter-community relations only from class inequality standpoint. When ethical issues around violent means were raised, one could sense the justification around the logic and notion of retributive justice. In most of the cases ultra Left group took recourse of blatant violence only around the cases of rapes; in other situations principle of annihilation of class enemy was generally avoided. The struggle has been effective in its assertion of landless labourers as human beings and cases of rape of lower caste women have decreased substantially. Mostly the strategies of protest
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and for demanding justice is non-violent one and the tactics used ranges from dharna, gherao, pradershan to aarthik nakebandi and jan-adalat. Violence is generally avoided in both the villages but they keep themselves prepared for any eventuality and also to convey the message loud and clear that they are ready to fight by all means—all for the end of a dignified living. Although, the concept of social justice has been explicated through a range of philosophical standpoint, the study helps us in analysing how people relate with the notion of justice while encountering injustice and humiliation day in and day out. The extensive variety and internal complexity of the ideas, which are associated with the notion of justice, make many different analyses of justice seem plausible. Thus there is some basis for the belief that it is the sense of injustice or grievance that is at the core of our ideas about justice and explains its powerful emotive force. Justice is normally the language of complaint, and sometimes of revenge. It is in resented deprivation and consciousness of having been wronged that much justice talk is rooted (Campbell 1988: 1). While mapping the violent terrains of Bihar through ethnographic methodology, cravings for social justice unfold itself in a very unique way—where so-called stakeholders of the society justifies their violence and counter violence as delivering social justice for their respective constituencies. Here it is crucial to emphasise that social justice is not a monologue; the conception of the concept might be universal but practice of it is certainly not uniform. When one looks into people’s assertion for justice, the study quite starkly reveals that social actors are oscillating between the strategies of non-violent mobilisation to violent means. The conjunctures around delivery of social justice in the region demonstrate that the different forms of revenge have become primary lens to look into justification of claim making and more often than not, violent strategies are opted to secure such claims. It also brings into light how sense of power, claim for social justice and use of violent means are intertwined in the everyday life of people in this rather nondescript locale of the country, known only for the infamous and recurring outbursts of violence as primary means to claim justice. However, an ethnographic account reveals that claims making for ensuring justice gets displayed either in organised way (around ultra Left ideologies and strategies) or on an everyday individual behaviour
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which can be seen in close proximity to James Scott’s Weapons of the Weak (1986). The present inquiry has also comprehensibly exposed state’s weakness in delivering justice for the poor and marginalised in particular. Furthermore, peoples’ narratives about scores of casteclass-based violence and the tales of ghastly massacres bears testimony that the institutional mechanism of justice is in total jeopardy and contours of institutional justice have virtually shrunk for the victims of injustice. While capturing people’s impression of social justice, manifested and articulated through their individual and collective response to issues surrounding dignity, economic resources, as well as political and social status, it was felt that people are not necessarily prisoners of ‘a particular’ conception of justice only, which justifies violence unabashedly. Although people might be affiliates to one or the other ultra Left ideologies and organisations, they are at the same time relating with the mainstream political processes of social justice as has been articulated by political leaders like Lalu Prasad Yadav or Nitish Kumar. The consciousness of social reality and assertion of social justice undoubtedly helped people in enhancing their social status, even when their economic status remained by and large unchanged. Despite the fact that the image of Bihar is generally under siege, one cannot refute that the language of politics as also the power discourse has changed significantly in the last two decades. And that language gets articulated when one comes across with expressions such as ‘Gulamiya ab hum nahi bajeibo, azadia hamra ke bhawela’ (Life in slavery is not fitting with us anymore, for free will has caught our fancy).
ACKNOWLEDGEMENTS I would like to put on record my strong sense of gratitude to the people of Damuha and Noanwa for their candid sharing and sharp articulation of struggle and justice. I am particularly grateful to Dr Kamlesh Sharma and Mr Kumar Anil for their enormous support in the process of this study. Thanks to Prof. Pushpendra and Dr Ritambhara Hebber for their comments. The usual disclaimer holds.
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NOTES 1. Life in slavery is not fitting with us anymore. 2. Earlier Arwal was part of Jehanabad district but later on it was made a separate district, again in the name of tackling problems associated with Naxalite movement. 3. Parenthesis mine. 4. These factions are merged together and now known as CPI (Maoist). 5. Paulo Freire’s faith and confidence in the effectiveness of dialogical encounter proves so very real in this context. 6. One of the very notorious gangs of 1980s, which committed several crimes in Jehanabad. 7. Under Dola Pratha, the brides of the lower caste had to spend their first night after marriage with the landlord of the area. This system was considered as one of the most outrageous arrangements. 8. A close negative connotation akin to broker. 9. In early 1980s, Bhumi Sena was launched by some Kurmi caste landlords in collaboration with some criminal gang. It operated in Patna, Nalanda, Nawada and Jehanabad areas. The Sena unleashed maximum terror in PunpunNaubatpur and Masaurhi Blocks. 10. The upper castes people often use prefix ‘Babu’ in their name and expect others to call them Babu. 11. Gohar is an act of the dominant caste landed gentry in which friends, relatives and armed attendants come together to avenge a real or perceived threat. 12. Babadham (Deoghar) is one of the most revered places of worship by Hindus of Bihar and Jharkhand. Inside the sanctum sanctorum of Babadham, devotees are supposed to put water on the idol rather than touching it. 13. Bataidari is a system of sharecropping. 14. Extremely Backward Castes (EBC) is one of the vulnerable and socio-economically poor sections in Bihar. Their plight and problems are to a great extent similar to Dalit categories. 15. This place has special importance in the village. No one stays in this house of Lalaji as everyone works outside the village. The front yard of the house witnessed first open defiance of upper caste oppression and over the years this has developed as a neutral place where confronting parties are ready to come together for negotiation and dialogues.
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2 Ethnography of Social Justice in Dalit Pattis (Hamlets) of Rural UP BADRI NARAYAN TIWARI
T
he concept of justice can never be the same for people living at different layers of society and subsequently facing different levels of injustice. In an unequal society the levels of victimisation of people differs radically depending on their location in the social ladder. Thus the meaning of justice cannot be the same for marginalised communities as it is for dominant layers of society. Neither can it mean the same for the marginalised of the marginalised communities who are on the lowest rungs of society as that for marginalised communities who are slightly above them in the hierarchy. In the highly hierarchic and unequal society that is characteristic of Uttar Pradesh (UP), the meaning of justice for an upper caste might imply a legal dispute against another upper caste over land or property or other similar issues. On the other hand, for Dalits for whom social injustice is an inescapable element of their existence, justice is not merely legal justice but is an issue of social justice against the everyday exploitation and humiliation by the higher castes. This is what urges Bhullar, a man belonging to the Chamar caste living in Godampatti, Shahabpur, to say, ‘For us, justice means being allowed to live like human beings; we can live with dignity and self-respect and our caste and family pride is not deflated everyday by the higher castes with whom we need to interact.’1
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DREAMS, ASPIRATIONS
AND
DESIRES
Bharat swarg lok hoi jai hin Dheer dhara sajani. (2) Chhuachhut ka bhed mitai hain I deikha budhimani Pandit Dhobi ke ghar khaihin Dheer dhara sajani Bharat swarg lok …… Vidya ka prachar hai bhari Ab khul gaye madarsa Bijli, tebul, nahar gare me Nahi baate arsa (2) Nadiyan doodhan se bhar jaihen Dheer dhara sajani Lena dena terhi barhi Sab chhoot jaihai Poonjipati baithe roihin Dheer dhara sajani (India will become a heaven Be patient, O my dearest, Untouchability will be removed See the intelligence of Indians Brahmins will share meals with washermen Be patient, O my dearest Education will spread And schools will open their doors It won’t be long before electricity and water Reach everywhere The rivers will soon be filled with milk Be patient, O my dearest Borrowing money for rituals Will no longer be necessary And capitalists (mahajans) will sit and cry Be patient, O my dearest).2
These lines are part of a song that was sung in the 1950s at election rallies held in the Phoolpur region near Allahabad in UP. Phoolpur was the constituency of Pt Jawaharlal Nehru and the rendition of the song was part of his election campaign for winning the seat of a Member of Parliament (MP). Pt Nehru was often present during the performances and sometimes even joined into the chorus. In a way this song represented both the dream of Indian nationalism and the
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agenda for social development and social justice that was pledged by the Indian state to the masses at the time of Independence. People of the older generation living in the Phoolpur parliamentary constituency who were present at the election rallies where this song was sung, narrate that when this song was sung the lower castes clapped their hands ecstatically.3 It is, however, a sad reflection of the skewed social development that has taken place in UP since Independence that the Dhobi and other lower caste families of the Phoolpur area are still waiting for the upper castes to eat in their houses.4 Many men from these families have migrated to Mumbai where they are earning well and also remitting a good amount to their families back home. This has significantly raised the standard of living of most of the Dalit families of villages falling within this constituency and many of them are better-off than the Brahmins of these village. Most of them have electricity in their houses and even eat refined grains like wheat and rice rather than the coarse, cheap grains like sava and jaun, which they did earlier because of their poverty. But in spite of their economic elevation the egalitarianism and social justice that was supposed to follow from economic development is not yet visible in most parts of UP. Brahminical cultural code of conduct and mentality is still predominant here. Even today in most villages the lower castes live in separate hamlets or pattis that are quite some distance away from the upper caste settlements. Facing humiliation from the upper castes with whom they need to interact, in the form of taunts and sarcastic comments on their lower birth and the concomitant pollution, is still a harsh reality of their everyday lives. Even today, in spite of UP having had a Dalit chief minister for two terms and Bahujan Samaj Party (BSP), the party composed mainly of Dalits, being one of the most powerful political parties of the state, lower castes like Jogi, Kunjra, Julaha, Darzi, Fakir, Rangrej, Barhai, Manihar, Dai, Gaddi, Kalal, Kasai, Laheri, Mahifarosh, Mallah, Dhobi, Hajjam, Nat, Panwari, Madari and many others, who are small in number and have not been consolidated and mobilised politically, are still relegated to the fringes of mainstream society and constantly face social and cultural oppression. These examples of the gross social injustice existing in rural society in UP underpins the need to strengthen social justice in the state, which is one of the major concerns of the Indian state today. But what does the concept of social justice mean in villages of UP? A cursory perusal of local newspapers reveals that the lower castes maim
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and kill their daughters for falling in love with upper caste boys with as much brutality as do the Brahmins and Thakurs when their daughters fall in love with lower caste boys. Often, when a Dalit caste that is lower down in the Dalit social hierarchy asserts its identity, other castes that are in more favourable social and political locations, try to drown their voices of assertion. This was seen when a play portraying their caste glory being staged by the Bhangis of village Ajauha near Allahabad, was forcibly brought to an end by the more politically aggressive and economically better-off Chamars of the same village.5 It has also often been observed that the backward castes like Yadavs and Patels who used to work as house servants in upper caste households, perpetrate more social injury on the Dalits who work in the fields, than do the Brahmins and Thakurs. From these stray incidents it appears that the victims of social injustice often seek to redress their grievances by committing the same kind of social injustice on the section of population immediately below them in the social hierarchy. In such a situation, how much euphoria should we feel about the concept of social justice that is being sought to be implemented by the Indian democratic state in UP? This chapter is a study of the perception of the concept of social justice in village Shahabpur, UP, among three generations of people belonging to two important Dalit castes namely the Chamar and the Pasi. Since it is very difficult to measure the perception of social justice, the only way is to document and analyse their oral narratives in the context of ethnographic observations. This study is, therefore, an ethnographic study based on a documentation and analysis of their oral history, cultural traditions and popular booklets. The methodology employed was ‘baat se baat’ (conversational) method, that is, extracting information through semi-structured conversation. Lengthy interviews were conducted with three people each of three generations of people of these two castes who were selected because of their encyclopaedic memories and ability to recount interesting narratives. The three age groups were 70 and above, between 45 and 50 and between 20 and 30. The reason for dividing the population into these three age groups was to study the variation in the perception of the concept of social justice between these three generations. The persons were first brought down the memory lane by talking about their personal life stories and then channelled into discussions about their caste in general. Thus the conversations ranged from their everyday life experiences to the original myths of their castes.
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Through these lengthy conversations the perception of the concept of social justice was sought to be brought out within the people of these two castes.
THE VILLAGE SHAHABPUR Shahabpur is a tiny village in UP at a distance of approximately 20 km from Allahabad. It is located on the Allahabad–Lucknow highway. It is 5 km to the north of Hathiganh Chauraha, lying in the doab area of the Ganga river. The village is nearly 2,500 metres in length and has almost the same breadth. Like many other villages in UP, it is a mauja or conglomeration of 13 small caste-based hamlets and subhamlets (poorvas, pattis or tolas), spread out across the village around a huge estate that is the focal point of the village. This estate contains an ancient bungalow with large fruit orchards surrounding it. There is a big pond outlying the orchards around which all the caste pattis are located. Most of the names of the pattis are based on the names of the castes that predominantly inhabit them. The average distance between each of the poorvas and pattis ranges between 2 to 3 km, linked by narrow kutcha roads or furrows (chauri aris) lying within agricultural fields. Lush green fields growing crops like rice, wheat, mustard, pulses and vegetables, all of which are consumed by the villagers themselves, surround all the pattis. These pattis are Shahabpur Bazaar, Godam, Pasiyapur, Inara, Murain tola, Purai ka poorva, Jurapur Karnai, Cheetanpur Thakuran, Kohran, Tali, Turkan, Lakhanpur and Cheetanpur. The castes and communities living in this village spread out over the different pattis are Patel, Maurya, Yadav, Pasi, Darzi, Chamar, Dhobi, Kumhar, Lohar, Nai, Bhuja, Darvesh and Turk (as the Muslims are called there). There are also a few Brahmin families living in the village. The caste composition of these pattis shows that the Dalits and backward castes are in the majority while the higher castes are in the minority in the village. Most of the castes have given up their traditional caste-based occupation. Today they mainly work as agricultural labourers in their own and in other people’s fields. Only the Nai (barbers), Kumhars (potters) and Darvesh (a Muslim community making and playing drums) have continued to follow their caste professions.
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The hamlet inhabited by the Chamars is the Godam patti. It lies to the east of the Shahabpur Bazaar. This patti is situated on the banks of a large pond belonging to the family of Raja Akhil Pratap Singh, the present landlord of the village. There are 35 households in the patti and the total population is 175. Pasiyapur is the hamlet of the Pasis who also call themselves Saroj. It lies on the outskirt of Shahabpur and is highly secluded from the centre of the village, linked only by furrows running through the fields. This patti has 125 households with a population of 600. There is a big pond in the centre, which came up when mud was dug up to build the huts of the Pasis. There are also many small groves of fruit trees especially mango that provide shade to the residents to sit and rest under. These groves are also used as chaupals for meetings of the villagers. According to Bhullar, one of the respondents of our study living in Godam patti, the distribution of the pattis in the village each inhabited by a different caste is the result of its colonial history.6 Bhullar narrates that in the mid-19th century a British Army officer called Captain Chapman lived in this village as its landlord. Before him the landlord was a Thakur called Sangram Singh who owned the bungalow and all the land adjoining it. Sangram Singh played a significant role during the 1857 Rebellion by giving shelter in his bungalow to some rebel soldiers who were fleeing from the Allahabad garrison. This fact has also been mentioned in the book Prayag Pradeep by Shaligram Srivastava (1937: 58). The quashing of the rebellion by the British by systematically eliminating all the people involved in it resulted in his killing by Captain Chapman who was posted in that region. As a reward the officer was given the ownership of the village by the British government. The bungalow owned by Sangram Singh was his residence during his stay there. Sangram Singh was a good and kind ruler and during his reign most of the castes like Pasis, Kahar, Kumhar, Dhobi and so on, lived together on the land touching his estate. The Pasis who are known for their militancy and aggression, worked as soldiers, guards and watchmen in his bungalow, while the members of the other occupation based castes provided manual labour. After taking over the bungalow and the village Captain Chapman evicted these castes from the land adjoining his bungalow and settled them in mutually exclusive hamlets spread out across the village. The Pasis were made to shift the farthest away from the centre of the village. According to Khichrilal Pasi7 who had
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heard the story from his grandfather, there were two reasons behind this move. First, the Captain and his family were perpetually fearful of being attacked by the inherently militant Pasis. Second, their customary addiction to pork and wine and loud and boisterous singing the Panwara (a Pasi folk song) all night under the influence of alcohol was strongly objected to by Captain Chapman and his wife. He thus banished them to the outskirts of the village where they continue to live. After evicting the villagers from the land adjoining the bungalow, Captain Chapman converted this land into a Neel Manthan (indigo plantation). A storehouse (godam) was also built there for storing the indigo. Some Chamar families were brought in to live around this land since, in the absence of doctors and nurses, their women were needed to cut the cords of new born babies, which is the caste-based profession of Chamar women. The men worked as manual labourers in the indigo plantation and also removed the carcass of dead cattle. Since then the Chamars have been living in this patti that is now known as the Godam patti. The separation of each caste in the village into geographically distinct pattis by Captain Chapman affected not only the politics and economy of the village society but also reshaped the socio-cultural environment of the people. Each hamlet was detached from the other geographically so that the castes could not mingle. It appears that Captain Chapman’s decision was guided by the policy of the colonial master to divide, separate and segregate the subjects so that no collective life pattern and decision-making could develop in the villages. This policy was also visible in the colonial documentation project where a unique caste identity has been emphasised for each caste, thereby freezing each caste into rigid compartments. Shahabpur village has a panchayat, which elects a Pradhan who is responsible for the entire village. Since Independence the Patels have usually been elected as Pradhans. In the recent elections, however, Doodhnath Pasi, a Dalit, was elected. Before the introduction of the system of state governed Panchayati Raj Institution with an elected Pradhan, each caste had its own caste panchayat headed by Mukhiyas and Chaudharys. These caste leaders were highly respected and wielded a lot of power among their castes. They ensured law and order among their own caste members and had the authority to settle disputes related to land, family, caste traditions. They also resolved moral conflicts occurring both inter and intra caste.
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The village is connected to the Allahabad–Lucknow highway by a kutcha road that is usually filled with potholes and puddles during the rainy season. Verdant green fields with fertile crops swaying in the wind can be seen on either side of the road. A city bus laden with passengers and baskets makes its way lazily to the city in the morning and returns in the evening. This is the only means of transportation for the villagers from the village to the city of Allahabad. The bus stops at the Shahabpur Bazaar, which is a long stretch of road inside the village. The Bazaar has a good number of shops on both sides of it. Although it is a later addition in the history of development of the village, it has now become the hub of the village. Today geographical descriptions of the pattis are made by their relative distance and direction from the Bazaar. The dialect of this village is similar to the variant of Awadhi Hindi spoken in west UP called Baiswari. Although Shahabpur is very similar to the other villages of this region and also broadly shares a common cultural environment, it has its own history and identity, which makes it different from the others.
SOCIAL EXPERIENCE OF HUMILIATION: NARRATIVES OF THE CHAMARS Chamar is an occupational caste that is associated with leather tanning, preparing of skin, manufacturing leather articles and making shoes (Briggs 1990: 11). It is scattered all over north India, being most numerous in UP, Bihar and some parts of Punjab. Numerically this caste is strongest in the Gorakhpur and Basti districts, in Saharanpur and in the Meerut district. The original caste-based profession of the Chamar men was removing the carcass of dead cattle (maveshi) from the households of the upper castes and skinning and tanning them to produce leather, while their women used to be called in to deliver the babies of the upper castes by cutting their umbilical cords (nara). Both these jobs are considered to be highly polluting because of which Chamar is considered to be one of lowest untouchable castes in the Hindu social hierarchy. But although these jobs were extremely vital in the lives of the upper castes, they have always oppressed and humiliated the Chamars because of their dirty and polluting castebased activities. The Chamars of Shahabpur performed these jobs
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in the village since the time of Captain Chapman when they were settled in the Godam patti by him. They too underwent the same kind of oppression and humiliation, which were suffered by all other Chamars. However gradually with the passage of time they stopped performing these caste-based activities and have taken up other kinds of activities of the village like cultivating their own fields, working as agricultural or manual labourers or plying rickshaws in the cities. Many of their family members have also migrated to big cities like Delhi, Mumbai, Kolkata and so on, and the money remitted to their families back in the village has helped to raise their socio-economic status significantly. This has led to a rise in their confidence level, which is being given fillip by the present political scenario in which the Chamars are one of the most politically aware and powerful Dalit castes. They no longer face the oppressive situation they had to face earlier because of their polluting activities. Untouchability is now on its way out from the village and people from other castes also sit with them and share tea, although the ingrained caste consciousness does not permit upper castes to drink water from their hands or have meals at their houses. Almost all the Dalits have embraced the Kabirpanthi or Ravidasi religious sect and have become bhagats. They no longer eat non-vegetarian food, which was earlier, their staple diet when they survived on the flesh of dead animals. But although it is many years since they have stopped performing their polluting jobs, the memories of the injustices that they experienced in the past still haunts the Chamars of the older generation. This memory is like a flashback of the story of their sufferings and the social struggle they went through to lead a life of dignity and selfrespect. Mahantji,8 a 70 year old Kabirpanthi narrated that since his childhood he had faced various kinds of difficulties (musibatein) and never experienced a single day of happiness and pleasure. He said: The memory of our own sufferings and struggle against them is more real than the story of the past of the village and the nationalist movement. Even thirty forty years ago bells used to be tied around our feet to warn people of our approach. Even the roads that we walked on were considered to be polluted. Long grass reeds used for sweeping the ground ( jhakhars) were tied around our feet to clean the ground on which we walked. But in case a few footprints got left behind, the upper castes used to walk down the road only after the wind or an animal had cleared them away. Because we were so poverty stricken we had to depend on the upper castes for all our basic needs. We were nearly bonded to these households because we often had to borrow money from them.
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This fact privileged them to heap all kinds of oppressions and humiliations on us including physical beating if we dared to protest against their injustices. We were handed out their old clothes to wear and their left over food to eat. Our children were not allowed to go to schools that were attended by the upper caste children. If some of them did, they were made to sit on the floor while the upper caste children sat on mats. They were also not allowed to drink water in the school from the lota (pot) since the upper caste children drank from it. When cattle died at an upper caste household we were called in to take away the carcass. We used to skin it and sell it to tanners to make leather. This fetched us a small amount of money. The flesh was preserved and eaten by us over a few days. The obtaining of dead cattle was the cause of a great deal of festivity since it would sustain us for some time. The upper castes considered us dirty and polluted since we carried out menial activities in their houses and ate the flesh of animals. That is why they looked down upon us and continually humiliated us.
Chamar women also faced a similar kind of oppression, as narrated by Jhuria,9 an old Chamar woman, who vividly described the oppression that she suffered when she was young and worked in the Raja’s house as labourer. She narrated: When I along with the other women used to go to the Raja’s bungalow, the members of the household like the Rani and others did not look at our faces while talking to us. While grinding wheat and makara on the janta (grindstone) which is a very painstaking and laborious job, we were made to tie pieces of cloth around our feet so that our sweat did not fall into the powder. Bells or ‘jhanjhar’ also used to be tied around our feet to warn people of our arrival. After a hard day’s work we were given five pau (1.25 kilograms) of jau or matar. We were not given any money, or any of the produce of the gardens or fields of the Raja. Some women of our caste performed the function of midwifes. They were known as chamar. The task of a chamar is a very skilled one and this skill is handed down from mother-in-law to daughter-in-law. Earlier when there were no doctors or nurses in villages chamains used to be called in by both upper castes and other lower castes to cut the cord of new-born babies and clean the pollutants of mother and child. But because of the intrinsic dirtiness involved in this activity, chamains were given a very low status in spite of their obvious need. They were not allowed to enter the houses but had to restrict themselves only to the makeshift maternity rooms outside the house where the pregnant women were shifted just before delivery. After the delivery they had to clean up the place and leave with the cord immediately. They were given some grains in return and also some clothes whenever a marriage took place in the house. Under the jajamani system that prevailed at that time, each chamar, like the other lower castes who performed specific caste based activities, used to be tied to particular upper caste households. These households were passed down over generations as a legacy from mother-in-law
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to daughter-in-law. But although they were indispensable for these households, their status was extremely low. Often they had to deal with the roving eyes of the males of these households who considered them easy prey because of their dependency and associated vulnerability. Even the women often humiliated them without considering that they too had feelings.
While narrating the plethora of incidents of injustices experienced by him and the other members of his caste in their everyday lives and listening to the narrative of Jhuria, 70 year old Mahantji’s recollected the origin myth of the Chamars. In a voice choked with grief and emotion he said that when the upper castes oppressed them, it often escaped their notice that the Chamars and Brahmins were originally ‘bhai-bhai’. He narrated the story of the origin of the Chamar caste in the following manner: There was once a Raja who had two daughters, Chamu and Bamu. Each of them had a son of great physical power. One day an elephant died in the palace grounds. As the Raja did not wish to cut its body to pieces, he inquired if there was anyone strong enough to carry the carcass away and bury it. Chamu’s son performed the task, whereupon Bamu’s son declared him an outcaste. The descendants of Chamu came to be known as Chamar, from whom the Chamar caste originated. The descendants of Bamu were the Brahmins. This made the Chamars and Brahmins brothers since they have the same ancestor.
Pyarelal, another elderly Chamar of the same patti, also claimed that the Brahmins and Chamars were brothers but he narrated a different story to prove his point.10 The story was as follows: Earlier Brahmins and Chamars were real brothers (sagey bhai). Once Rishi Ashtavakra (whose body had eight distortions) went to the house of the Brahmins for a religious ceremony in which a cow is donated to God (godaan). Ashtavakra was given a cow as gift but he refused saying that he would not take anything. At this some of the Brahmins started deriding both him and his distorted body. This angered the Rishi who cursed the Brahmins laughing at him, saying that since they were laughing at the ‘bones and flesh’ (haar-maans) of a person, they would have to work with haar-maans all their lives. These Brahmins then became Chamars whose caste-based profession is to skin dead animals and remove their bones.
The shift in the memory of the older generation of Chamars from their own real past to the mythical past of the caste reveals a movement of their psyche from reality to myth. It is possible that these stories are a form of escape from the harsh realities of their present, allowing them
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to imagine a glorious past in which they enjoyed an exalted position like the Brahmins. These stories also accord them the dignity and selfrespect that they yearn for in their real lives but are denied to them by the upper castes because of their low birth and accompanying dirt and pollution. The projection of the Brahmins in a negative light by showing them as collectively conspiring to degrade them may also be seen as a form of protest against the social injustices perpetrated on them by the upper castes that they cannot lodge in their real lives. The middle generation of Chamars however has a different version of the story of the downfall of the Chamars to their present degraded position. Bhullar,11 a semi-literate 40 year old man also belonging to the Chamar caste living in the Godam patti said that earlier when the Chamars wanted to acquire knowledge their tongues used to be cut off by the upper castes who told them that the job of the lower castes was only to serve them. Bhullar added that in spite of the ban on acquiring knowledge, Chamars developed their own Vedas called Chamar Vedas. According to him the Brahmins and the Chamars were the only two castes that had their own Vedas. It is interesting to note that among the upper castes a common form of insult to a Chamar who talks too much is, ‘What Chamarved are you chanting?’ (Kya Chamarved bak raha hai?). It appears that this sarcasm has been subverted by the Chamars by claiming that they have their own Vedas like the Brahmins. Bhullar added the upper castes conspired among themselves to assign them the task of skinning and tanning dead animals, especially cattle (maveshi) and cutting the umbilical cord (nara) of newborn babies and clean up the pollutants of the mother and child. These two jobs together were referred to as ‘nara maveshi’. Both these jobs were thought to be highly polluting, which was the main reason for their being considered untouchables. The injustice perpetrated by the higher castes on the Chamars of Shahabpur when they wanted to leave their original caste-based jobs in the 1960s was vividly described by Bhullar. He said that nearly 50 years ago, the Chaudharys of their community explained to them that both these activities were very demeaning and dirty. These activities blocked their opportunities to get other kinds of jobs. The words of the Chaudhary motivated the Chamars of Shahabpur to start the Nara Maveshi Andolan (Movement) to stop carrying out their dirty and polluting activities. When they stopped performing these jobs, however, they faced a painful and insulting backlash from
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the Patels, Mauryas and other higher castes. The Chamars were told to continue with their designated caste activity and not do any other work. Otherwise they would not be allowed to walk on the roads, drink water from the wells or use water for irrigation, and cut trees for their wood. The Chamars were even beaten up by the Patels. In retaliation, they filed a case against the Patels, who were sent to Naini Jail thrice. Bhullar said that the Chamars then started looking for alternative means of livelihood like pulling rickshaws in cities since they could not find any work in the village. They had to buy food from the shops to feed themselves and their families since the Patels, Mauryas and other castes stopped giving them grain and also prohibited them from using water from their wells to create pressure to continue the leather tanning work. He said: At that time the shops of Shahabpur Bazar saved us from death caused by hunger but we soon ran out of resources to buy food. We then decided to approach the District Collector of Allahabad, Shri Bhurelal, who himself belonged to the Dalit community. Bhurelal asked us why we wanted to drop our profession. We replied that an animal died only once in six months. This makes it difficult for us to sustain ourselves in the meantime. We want to diversify our activities but the upper castes are resisting, saying that we have to stick to only our own caste-based profession that has been coming down over generations ( purkhon ka kaam), since we were untouchables. Bhurelal pacified us, saying that no one could force them to do what we did not want to do. The court case that had been going on for a long time also went in our favour. This gave a new impetus to the movement, and we succeeded in shedding our dirty and polluting activities.
While the older generation of Chamars usually describes the social injustices faced by them and the ancient glory of the Chamar when they enjoyed an exalted position as the brothers of Brahmins, the middle generation tries to glorify its caste by linking important historical persons to it. According to Bhullar, Charmavansh (Dynasty of Chamars) have ruled over the entire subcontinent for the last one lakh seventy eight thousand years. According to the genealogical tree, Shambook, Supak Das, Ravi Das, Harish Das, Mordhwaj, Eklavya and so forth, all belonged to the Sudra gotra. Eklavya is often claimed to be a Nishad but he was also a Sudra. That is why all the rishi munis were born in the Sudra caste. There were only one or two rishis from within the Brahmin and Kshatriya castes but the maximum number came from the Sudras. Valmiki and Parashar were also Sudras.
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King Ashoka was a Sudra. His pillar is still alive (ajar amar). For the people of his generation of the Chamar community, the fact that Sant Ravi Das belonged to their caste is a matter of great pride. Sant Ravi Das is one of the most popular leaders of the Bhakti period who is considered the icon of all Dalit castes. The Chamars however proclaim him as a hero of their own caste. They also associate themselves with Ambedkar who was a Mahar belonging to Maharashtra, a caste which is similar to the Chamars of UP. With tears in his eyes Bhullar said that his only ambition in life was to see the statues of Ambedkar, Ravidas and Kabir installed in their patti. The younger generations of Chamars, many of whom have acquired education in Allahabad city and travel to the city everyday, however have an entirely different perspective regarding the question of social justice and the injustices faced by their older generations. None of these youngsters have faced the kind of oppressions and humiliations that were suffered by their fathers and grandfathers. They have acquired knowledge about their caste both through the stories narrated by their older generations and through the political dissemination carried out by the BSP at rallies confined to their own caste or in those organised for all the Dalit castes of the village together. In addition, because most of them are educated, they regularly read Dalit newspapers, magazines and booklets narrating examples of the injustices faced by Dalits all over the country. This multiple exposure to the print media, personal narratives of the older generations and the process of political dissemination by BSP has led to a strong arousal of caste pride and identity in the younger generation, coupled with a burning anger against the upper castes and the Indian state for keeping them backward. There is a strong urge within them to move upwards in the social ladder through education and socio-economic and cultural uplift. However rather than depending on the state to elevate them through welfare schemes and benefits they are using their own resources like acquiring education and getting jobs in cities or working on their own or in people’s land to earn and save money. This is evident among the Chamars of Shahabpur who are now economically much better-off than their older generations. A visit to the Godam patti shows that many of the mud huts held together with bamboo poles dug in the ground and covered with straw and plastic sheets are being demolished to be rebuilt with bricks and cement. Earlier most of them used to sleep on the floor or on cots woven with jute ropes,
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but now they sleep either on wooden cots or on cots woven with cane. There is a striking difference in the kind of clothes worn by the middle and older generation and by the younger generation. While the older men wear ordinary dhotis and shabby vests, the younger generation of boys wear good quality shirts and pants which they buy with their own money whereas the older generation usually depended on the handovers of the upper castes in whose houses they worked. Another striking difference between the older and middle generations, and the younger generation, is in their attitude towards the upper castes. As narrated by Ramesh,12 a 22 year old inhabitant of Godam patti, earlier his father and grandfather looked upon the upper castes in whose houses they worked as labourers as their annadata (provider of food), since they were totally dependent on their mercies. They were addressed as malik or lord and were always talked to with their eyes lowered. It was a common occurrence for upper castes to beat up lower castes for the flimsiest of reasons. The lower castes did not protest against this injustice because they were ashrit or ‘sheltered’. Humiliation, ill treatment and exploitation were accepted as part of their lot along with the food, clothing and shelter handed out to them by the upper castes. He believes that this was because the lower castes suffered from abject poverty at that time and filling their stomachs with food was their primary concern. Today however things have changed. Most families have a few members working in big cities who remit money regularly to their family members back home. Education, which was earlier the weapon with which the upper castes oppressed the lower castes, has no longer remained their special prerogative. Ramesh feels that with rising education levels among the lower castes and diversification of economic activities, the dependence on the largesse of the upper castes has considerably reduced. Now the lower castes work in the houses of the upper castes not as servants but as economic agents. Their primary concern is no longer food but the right to live with dignity and self-respect. Today they demand an equal status from the upper castes and also retribution from them for the injustices committed by their earlier generations. Ashutosh,13 another respondent of the Godam patti belonging to the younger generation opined that the contemporary political scenario, in which BSP is an important player, has greatly helped in raising the confidence level of the Dalits including the Chamars. The dissemination of the stories of the injustices and exploitation suffered
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by their ancestors at the hands of the upper castes, in addition to the stories of their past glory, circulated by the BSP at election rallies, has helped to make the younger generation aware both of their erstwhile glory and the causes of their downfall. Additionally, reading in newspapers, magazines and booklets about the condition of Dalits in other places and how they are combating the injustices of the higher castes, is helping the younger generation of Shahabpur to generate ideas about protesting against upper caste injustices in their own lives. They now have a new awareness about their own selves, which is reflected in the fact that they prefer not to write their caste name after their first names. Most of the young boys of Shahabpur write Kumar, Azad, Bharati, Akela and so on, after their first names, for instance, Ravishankar Azad, Upendra Akela, Santosh Bharati, Vijay Kumar. The trend in first names has also undergone considerable change; while earlier they had names like Babulal, Khichrilal, Jagatram, and the like, today the names that were confined mainly to the upper castes like Rahul, Vijay, Ashutosh, and the like, has trickled down to the lower castes as well. Ashutosh recited a poem composed by Dr Ambedkar that is recited by the Cultural Squad of BSP in order to generate awareness among Dalits about the injustices perpetrated on them by the upper castes. This poem is highly effective in arousing anger against the upper castes, which is then channelled to fight against their atrocities: Yadi Achhoot Pahanta Hai Saaf Kaparey (If the Untouchable wears clean clothes) Why is there atrocity on an untouchable When does he put on clothes that are clean How is a Hindu hurt by it? …Why is an untouchable tortured When he refuses to lift the body of the dead animals And eat the rotten meat And beg for his bread at every door? … Why does a Hindu feel bad If an untouchable has a respectable name? … Why is a Hindu unhappy If an untouchable rises to power Buys a piece of land or Enters into the world of business Achieves economic prosperity And is counted among the rich? .…
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From the narratives of the three generations of Chamars living in the Godam patti of village Shahabpur, it is evident that there is a marked difference between each of the generations regarding the concept of social justice. The older generation is deeply shackled to the mythical past of the Chamar caste when they enjoyed an equal status as the Brahmins. They have, however, no intention of demanding revenge from the upper castes for their downfall from this exalted position or for the social injustices faced by them and their other caste members. The middle generation is also tied to the past of the Chamars but this past is the historical past, which consists of known heroes. Even when they narrate the mythical past of the Chamars it is in terms of the injustices faced by them by the upper castes who conspired to degrade them. For them, the real historical characters like Buddha, Kabir, Sant Ravidas and Dr Ambedkar, who helped them to acquire dignity and self-respect, are more significant than mythical characters. However this generation too, which was dependent on the upper castes for fulfilling their basic needs, do not expect the state or the upper castes to make reparations for the injustices faced by them. The younger generation on the other hand, highly influenced by the Dalit movement and the contemporary political scenario, is filled with anger against the upper castes for bringing them down to their present position in society. They are fired with an urge to move up in the social ladder where they are taking matters in their own hands rather than depending on the state for welfare schemes or benefits. Using the weapons of education and economic uplift they are now fighting against the social injustices faced by their ancestors. They demand an equal position in society as the upper castes and brook no humiliation or oppression by them because of their lower birth. In the next subsection we will study how three generations of Pasis, living in Pasiyapur patti of Shahabpur, perceive the concept of social justice.
EXPERIENCING INJUSTICE AND CREATION OF NARRATIVES A prominent and widespread community of north India, Pasi is an important Dalit caste in UP. It is notified as a Scheduled Caste in the
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states of Bihar, Haryana, Orissa, Punjab, UP, West Bengal, Himachal Pradesh and the Union Territories of Delhi and Chandigarh and some parts of Gujarat, Madhya Pradesh, Maharashtra and as far south as Mysore vide the statutory order of 1956. Pasis of UP live mostly in the central region, that is, Lucknow, Allahabad and Faizabad Commissionaires. In fact, they reside in 305 Pasi-dominated subdivisions. The significant Pasi communities are: Bahelia and Bheel of Badaun; Aheria and Bheel of Moradabad; Parasuraamees of Fatehpur and Allahabad; Boria of Fatehpur; Reva of Banda; Bachhellia and Bhar of Mirzapur; Manva and Tramaalee of Ghazipur; Chaurasi of Basti, Sultanpur and Barabanki; Bhadauria of Tarai; Baania of Lucknow; Parasmanis, Boria, Mahatia and Parasmani of Unnao; Boria of Rae Bareli; Behar Dhanuk and Khatik of Sitapur; Baania of Gonda; Chunaarh Dhanuk and Khatik of Baharaich; Gujar Pasi of Lucknow and Faizabad. All of them claim to be descendents of the same source (Census of India 1971). The Pasis are traditionally associated with a number of miscellaneous occupations. They serve as watchmen, tend pigs and do manual labour in the fields. Rose regards them to be a low caste of pig rearers, professional watchmen and toddy makers (Rose 1991: 20). The 1931 Census Report of the Central Provinces and Berar recorded that their traditional occupation is toddy tapping, but some of them are also huntsmen (Census of India 1931). The Census Report of the same year in respect of Mayurbhanj (erstwhile state in Orissa) mentions them as migrants from Bihar where they are toddy tappers, earth workers, hunters and bird catchers. During the course of time, some Pasis in certain areas also took to a life of crime and the Pasi community came to be notified as a criminal tribe in UP and erstwhile Vindhya Pradesh, now merged with Madhya Pradesh (Ayyangar 1951: 33). There are two different interpretations of the term Pasi. Crooke (1896: 138–52) has recorded two popular versions regarding the derivation of the name ‘Pasi’. According to one version, etymologically the term ‘pasi’ is derived from Sanskrit ( pashika meaning ‘one who uses a noose’; Pasis use it for climbing the palm tree for toddy tapping. In Hindi also, pass or pasa means a noose). According to the other version, found to be more popular among the Pasis during field investigation, their name has been derived from the Hindi word pasina meaning sweat, since they believe that the Pasis evolved from the sweat of Lord Parashuram, the sixth incarnation of Lord Vishnu in Hindu mythology.
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The older generations of Pasis living in the Pasiyapur patti of Shahabpur too trace the origin of the Pasis to Rishi Parashuram, a mythical Brahmin saint who was reputed for his militancy.14 Seventyfive year old Khichrilal Pasi narrates the myth in the following manner: One day, when Parashuram’s mother was in the process of delivering Parashuram in the sauri (maternity room), a butcher called Kamrukamachha started leading away 1,600 cows from the village. The villagers complained to Parashuram’s mother, who expressed helplessness since she was in the act of delivering a baby. By then Parashuram Maharaj emerged from his mother’s womb with the umbilical cord tied around his waist. He ran after Kamru and started fighting with the kasai (butcher). He fought bravely, sometimes throwing him away and sometimes turning cartwheels himself. By this time he was sweating profusely. He shook his head to remove the sweat and when the beads fell on the ground, five Pasis emerged from them. These Pasis also joined in the fight and killed Kamru. Parashuram then released the cows and brought them home. The five Pasis requested Parashuram to take them home with him since they had nothing to eat. Parashuram replied that his umbilical cord had still not been cut so he was incapable of looking after them. The Pasis then asked him what they should eat. Parashuram replied that they should eat the rear end of the passing pigs after dipping it in sandalwood paste (chandan) to purify it. The Pasis acquired great strength by following the advice of Parashuram. There was no match for them in the entire country. One day Lord Vishnu along with Narad was passing by on an elephant. On seeing the Pasis playing nearby, Narad angrily asked them what they were doing. The Pasis, in return, pulled the tail of the elephant, which came loose in their hands. Narad then remarked to the Lord that these people were very strong and would soon control the earth if not stopped. A few days later Narad Muni, who was a Brahmin, came by alone just as the five Pasis were about to eat their meal of pig’s meat. Narad scoffed at them for eating raw meat and advised them to make it tastier by adding salt to it and cooking it. Being simple minded, the Pasis took Narad’s advice and started cooking the meat and adding salt. Since then the strength of the Pasis has decreased. Narad then said to the Lord, now we will see what the Pasis can do. When the Pasis tried to pull the elephant’s tail loose after that, they were unable to do so since their strength had decreased.
While narrating the story the older generation is filled with pride for their glorious past in which they were created from the sweat of Lord Parashuram, a revered sage of the upper caste Hindus. Alongside is their sorrow for being considered one of the dirtiest and degraded among all the untouchable lower castes primarily because of their
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caste-based profession of rearing pigs. According to Khichrilal, another reason why they were accorded a shabby treatment by the upper castes was their custom of singing raucous and bawdy folk songs called Panwara, after consuming alcohol and pork. As has been mentioned earlier, Captain Chapman banished them to the outskirts of the village mainly because of this practice. Khichrilal said that the upper castes continued to follow the tradition of humiliating the Pasis even after his departure from the village. He added that the Pasis were also highly aggressive and militant. This made them efficient stick wielders and watchmen who were employed by upper castes to guard their houses and also to beat up people of other lower castes who had gained their displeasure. While the Pasis were used by upper castes to humiliate other lower castes, they themselves were continually oppressed and humiliated. Because of their caste-based impurity these guards and stick wielders were not allowed to enter into the households but had to stay outside come hail or high water. They often put their lives in jeopardy for the sake of their employers and also entered into conflict with other lower castes who were in the same vulnerable position vis-à-vis the upper castes as they themselves, even if they sympathised with them. As a part of the conspiracy of the upper castes not to allow the lower castes to unite since they might rise up against them, the Pasis were used by them to create differences between the various castes. The Pasis had to accept these kinds of social injustice. In the absence of alternative sources of livelihood, they were totally dependent on the mercies of the upper caste feudal landlords in whose houses they used to work. This vulnerability and dependency rendered them hapless victims of the upper castes, who wilfully misused their power to keep them in a degraded position.15 The members of the middle generations of the community, who grew up when the Pasis, like the other untouchable castes, had started becoming aware about their backwardness and deprivation and had started shunning the dirty and polluting activities like pig rearing, also narrate this story as the origin story of the Pasis. But while they are proud of the glorious past of the Pasis, they narrate this story in a way that shows their resentment against Parashuram for not giving them his name or accept that they were born from him. According to Jagroop Pasi, a 50 year old resident of Pasiyapur, who works as an agricultural labourer, neither do the upper castes acknowledge the sterling role of the Pasis throughout the passage of the history of India.16 Instead,
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they have always heaped insults and humiliations on them for their low and degraded condition, conveniently forgetting that it is because of their injustices perpetrated over generations that the Pasis have been relegated to that condition. He proudly proclaimed that the Pasis were a ruling caste and during the medieval period Pasi kings like Bijli Maharaj, Suhaldev, Daldev Maharaj, Baaledeen, Beera Pasi, Baldev Pasi, Kakoran Pasi, Satan Pasi, Lakhan Pasi and Chheta Pasi ruled over vast empires. According to him the ruins of their forts and kingdoms still exist in various parts of UP including Lucknow. Jagroop Pasi added that Pasis played a significant role during the phases of the freedom struggle of the country. He narrated in glowing terms the story of Udadevi, and her husband Makka Pasi, who laid down their lives for the sake of the country. According to the story narrated by him, the incident took place on 10 June 1857, when a small battalion of British soldiers under the leadership of Henry Lawrence was passing through Barabanki on their way to Chinhat from Avadh. At village Chinhat, Makka Pasi gathered an army of 200 Pasis and killed many British soldiers. Considering him to be a danger, Captain Lawrence shot Makka Pasi to stop him from killing more soldiers. After his death, Udadevi took over his mantle and fought bravely against the British along with Begum Hazrat Mahal of Lucknow. Jagroop Pasi claimed that Udadevi and Makka Pasi are the only couple in complete world history where both the partners have become martyrs. However they were not given a place in mainstream history of the nationalist movement because of their lower caste status. The manner in which the stories about the glorious past of the Pasis were narrated by the people of the middle generation of Pasis as represented by Jagroop Pasi and the other respondents of Pasiyapur, brings out the Pasis’ desire to link themselves with the Great Tradition on the one hand and on the other their critique of the Brahminical norms both for not giving them their rightful position in the social domain and for causing their downfall by conspiring against them. They emphasise that these kings lost their empires due to the conspiracies of the upper castes. The stories of these kings are also narrated in a way that shows the belief of the present day middle aged Pasis in the erstwhile glory of the Pasi caste, who were kings and rulers. Ramnath Pasi, a 47 year old respondent also of Pasiyapur, corroborated these stories by interpreting the etymological meaning of their caste
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name Pasi to mean a soldier.17 According to him the name is composed of two Hindi words, pa meaning ‘grip’ and asi meaning ‘a sword’, implying thereby one who possesses a sword in his hand, or in other words, a soldier. The younger generations of Pasis, who like the Chamars of Shahabpur, have not had similar experiences of oppression, exploitation and humiliation as their older generations and who are more educated than them, are more concerned about their present day situation. A strong sense of upward mobility is also visible among them. The narratives of the past that were handed down to them through the mouths of their older generations and also through the political dissemination by BSP have greatly influenced them to change their image of being dirty and polluted. They would like that their community is restored to its respectful place in society particularly in view of their glorious past of being landlords and rulers. They do not want to carry their earlier image of pig rearers, which they believe, has contributed to their being accorded a low social status. They believe that the other factor contributing to the discrimination against them is their ill reputation for criminal propensities. With this motivation the younger generation of the village took the decision to give up pig rearing in an attempt at social upward climbing and participate in cleaner activities. As narrated by Vijay Pasi, a 25 year old resident of Pasiyapur, most of the young men of their patti have migrated to other places to work as labourers in brickfields or in factories, or as rickshaw pullers in big cities.18 The few young men who are left behind either work in their own fields or in the fields of others as agricultural labourers. Vijay further said that most of the Pasis of the Shahabpur village are strongly involved in the Dalit movement of the BSP. A few of them like Babulal Bhanwra and his wife are also part of the Cultural Squad of the BSP. They travel from village to village with other members of BSP and present cultural performances in election rallies just before BSP leaders deliver election speeches. These cultural performances narrate stories of the past glory of the Pasis and the other Dalit communities. They also narrate stories of the exploitation, oppression and humiliation faced by the older generations of Dalits among the younger generations. The narratives on which these performances are based are collected from the printed media like the Dalit popular booklets, newspapers, leaflets and other
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such printed materials. These songs and stories on the one hand arouse the caste pride and sense of identity of the Pasis and on the other, whip up anger against the upper castes whose conspiracies led to their downfall from their earlier exalted position. Rakesh, another young man of the Pasiyapur patti who is studying in the Allahabad University and is involved in the Dalit movement in the University, said angrily that even today the upper and higher castes grab all the benefits from the state while the lower castes have to fight for their share.19 This favouritism and discrimination shown by the state has spurred them to support the reservation policies launched by the government so that the centuries of injustices committed by the upper castes can be corrected and they get proper justice. From a study of the narratives of three generations of Pasis it can be observed that like the Chamars the older generation of Pasis too is rooted to their mythical past when they were equal to the Brahmins. The middle generation too believes in the mythical past of the Pasis but interpret the stories as a conspiracy of the upper castes to bring them down in the social ladder. This generation also has other heroes and idols of the Pasis who are real historical characters. The stories of these heroes are related in a way that shows how they were debased and marginalised by the upper castes. Neither of these two generations, like the older and middle generation of Chamars, however demands any retribution from the state or from the upper castes for the centuries of social injustice suffered by their caste. The younger generation of Pasis, like the younger generation of Chamars, is highly influenced by the political discourses of the BSP. For them, the narratives of social injustice are learnt from secondary sources rather than personally experienced. However, unlike their older generations, they would like their caste to be restored to its former glory, for which they are acquiring education and striving for socio-economic and cultural uplift to equal the upper castes. They have shunned their caste-based professions, which they believe was the main cause of their inferior status in society, and have taken up other activities that are cleaner and less polluting. In the next subsection we will endeavour to study the role of the print media in bringing about awareness among Dalits about the concept of social justice and also review the differences in perception of social justice in the oral and print media.
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PERCEPTION
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NARRATIVES OF SOCIAL JUSTICE PRINT AND ORALITY
AND IN
The trajectory of the emergence of Dalit consciousness shows that the first step to their mobilisation was producing popular literature by the literate section that would help to sensitise and mobilise the masses. One of the ways of going about it was to publish their own literature that contain legends and myths glorifying lower caste heroes and also document the history of the oppressions of upper castes. In order to do so, they had to interpret myths, history and past from a ‘Dalit’ point of view because it was only by becoming an interest group within India’s body politic, that they could claim special privileges for themselves in the form of affirmative action by the state (Narayan 2001: 3926). This literature then became an agency for transmitting the need for equality and liberation to the members of their communities and played a pivotal role in horizontally disseminating the cry for Dalit assertion. In this process they also helped in the transformation of the literate section of the Dalits into opinion makers, community leaders and social activists. The writers attempted to reread history and analyse it from a different perspective. They tried to challenge the Brahminical hegemonic order and counter the value framework erected by the dominant power groups. In other words, the print media was being utilised by this section to subvert the ideological and cultural structure persisting since ancient times. It helped in injecting new confidence and enthusiasm and enabling greater mobilisational power. Moreover, the writings of the ruling class were always full of spaces, which could be exploited by the Dalits to counterpoise their own ideologies. The print medium also gave cultural self-expression to lower caste groups through the efforts of the organic intellectuals of the community. The next step in arousing Dalit consciousness regarding their past and the role of the upper castes in bringing them to their present condition was transmitting them orally to the illiterate sections by the literate people of these communities. This process helped in expanding the mass base of these myths and legends (Narayan 2001: 3923). In addition, the small newspapers, magazines and booklets in which these stories were published, helped in developing a print culture among Dalits and in the creation of a reading and writing public.
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The versions, opinions and interpretations communicated through these newspapers and popular booklets percolated down to common people through the oral discourse of activists and social leaders. It is difficult to say whether these legends and myths about the past of the Dalits were originally in the oral form from where they were taken into the printed form or whether they were disseminated among the grassroots orally from the printed medium. However, investigation into their evolution shows that after the emergence of print culture in the form of newspapers and popular booklets written by Dalit activists and organic intellectuals these stories became more pervasive among the common people (Narayan and Misra 2004: 21). An analysis of the narratives in the printed literature of the Dalits shows that they are abstract descriptions of the oppressions and injustices faced by them. They are forcefully written in a language that will whip up the frenzy of the readers and listeners and incite them to demand revenge for the centuries of deprivation and injustices suffered by their ancestors. The stories of the origin of the various castes, a description of their glorious past when they enjoyed an equal status as the upper castes, their myths, legends and heroes associated with them, and the role of the upper castes in bringing them down to their present condition, are described in vivid terms by the writers. The names of the booklets in which these stories are written are also highly dramatic, like Arakshan ke Hathyare, Mool Vansha Katha, Aaj ke Dalit Shudra, Kal ke Shasak-Malik, Nagvanshi Purohit and so on. They are also highly critical of the state that has sided with the upper castes to marginalise them both from the history of the nation making process and from the state sponsored development projects. On the one hand they describe the roles of the Dalits in the various phases of the nationalist movement while on the other, they demand an acknowledgement of their contributions in the mainstream nationalist history and also compensation in the form of affirmative action for neglecting them for so many years since independence. When these stories are read out by the organic intellectuals ( gyani purush) of their communities or by the BSP activists, and presented in the form of theatres or nautankis, they have a strong impact on the imaginations of the illiterate sections of the Dalits. These grassroots populations, who have suffered similar incidents of social injustices and humiliations in their own lives, feel greatly aroused by these narratives. The stories of the great historical personalities belonging
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to the Dalit castes like Dr Ambedkar, Sant Ravidas, Kabir, Sahuji Maharaj and so on, the mythical characters like Shambook, Eklavya and so on, and the Dalit heroes like Jhalkaribai, Udadevi, Avantibai and so forth, who played significant roles in the history of the nation and brought glory to them, strike a deep chord in their hearts. The story of Dr Ambedkar in particular, who participated in writing of the Constitution of India, moves them the most since they can easily identify with an untouchable who braved all odds to educate himself and fought forcefully for the dignity and self-respect of all the Dalits of the country. While hearing the stories of the past of their caste immensely elevates their caste pride, they also feel angered at the injustices imposed on them over the centuries by the upper castes. However, there is a striking difference between the narratives of the three generations of respondents of this study belonging to the Chamar and Pasi caste and the narratives in the print medium. The oral narratives are more in the form of a dialogue within themselves of the stories that they have heard or read and the situations actually faced by them. In this process they also fight against the social injustices that they have themselves experienced by reconstructing their own narratives on the lines of the printed literature. The incidents of social injustices that they claim to have suffered are thus highly flexible, capable of being modified depending on the context and the audience before whom they are being narrated. The printed narratives on the other hand are dialogues with others, especially the state and a reply to all those who oppose their demand for retribution in the form of protective discrimination. The narratives contained in them are frozen and unchangeable, but are open to being interpreted by the listeners and readers alike. For the older generation of Chamars and Pasis for example, who have lived through the days when social injustice against Dalits by the upper castes was the order of the day, the origin stories of their castes in which they originated from the same source as the Brahmins, is more pertinent. The other mythical characters of their caste also assume significance for them since they symbolise a glorious past when their caste enjoyed the same status as the Brahmins. For the middle generation, who grew up when untouchability was on the wane, and who were in the hub of the movement for the discontinuation of dirty and polluting activities performed by the Chamars, the historical characters like Sant Ravidas, Kabir and Dr Ambedkar, who strived to accord dignity and self-respect to the lower castes, are more relevant.
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But it is significant that in their oral narratives, they do not mention the Constitution or the role of Dr Ambedkar in carving it. Rather they explore their own memories and the cultural resources of their caste to develop a unique narrative around their perception of social justice. This is also true for the middle generation of Pasis who talk about the kings and rulers belonging to their caste while talking about social justice. Neither of these two generations of Chamars and Pasis looks upon the state as the agency to grant them social justice. They prefer to develop their own narratives to safeguard their dignity and self-respect and to acquire social justice. The oral narratives of the younger generation, on the other hand, reveal the deep influence of printed literature on their perception of social justice. They are much more aggressive and demanding about attaining social justice. But in addition to their expectations from the state to make reparations for the injustices suffered by their older generations, they are also developing their own resources in the form of education and accompanying economic empowerment, in order to fight against them. They believe that this will lead to a brighter and better future of the Dalits and right the centuries of wrongs committed against them.
CONCLUSION In our common perception, we readily believe that for centuries the Dalits have been oppressed and exploited by the upper castes and by the castes immediately above them in the social hierarchy and that they have passively accepted this injustice by the dominant forces. But it has escaped the notice of many that since the process of oppression and exploitation began, the Dalits have been lodging their protest against it in their own way and that this process has led to the creation of narratives documenting their dissent. The narratives were created by the grassroots illiterate section as the outcome of the awareness generated within them in the process of being ostracised by the dominant forces. These have been recorded and documented by the educated Dalits in their newspapers, magazines and popular booklets in the forms of stories, poems, plays and so on, and are once again circulated among the grassroots Dalits at their caste meetings and political rallies. It is however interesting to note that rather than a
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demand for social justice, the descriptions of the injustices suffered by them are more overwhelming in their oral narratives. These instances of social injustice can be found in all their narratives ranging from their origin stories to descriptions of their everyday lives. Their quest for social respect, social dignity and desire for human treatment are strongly visible in these narratives but their aspiration for social justice is present in these narratives merely as a nuance. Overtly, the concept of social justice is neither clearly outlined nor is there any assertive demand for it from the government or the state. A glaring difference in the reactions to these narratives is however visible between the older illiterate section and the younger literate generation. Although most of the people belonging to the younger generation have not had much first hand experience of suffering these injustices because of the growing sensitivity in society towards Dalits but have a learned perception of social justice through secondary sources especially through political rallies, and so on, there is a strong feeling of anger against the injustices faced by their ancestors over the centuries. Being heavily influenced by the contemporary Dalit political mobilisation discourse, they vociferously demand retribution from the state and government for these injustices. This demand is not always in a consolidated or unified form but is often unsystematic, fragmentary and scattered, but the dependence on the government and state for granting them social justice is strongly evident. This phenomenon is more apparent in the state of UP, which is still sharply divided on caste lines but where the newly emerging Dalit politics is exercising strong pressure on the state to ensure the prevalence of social justice.
NOTES 1. 2. 3. 4. 5. 6. 7. 8. 9.
Bhullar, Godam patti, Shahabpur, 21 February 2003. Mahantji, Godam patti, Shahabpur. Ibid. Ibid. Report of Dalit Village Conference, Dalit Resource Centre, G.B.Pant Institute, 14–15 June 2006. Bhullar, Godam patti, Shahabpur. Khichrilal Pasi, Pasiyapur, Shahabpur. Mahantji, Godam patti, Shahabpur. Jhuria, Godam patti, Shahabpur.
94 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.
Badri Narayan Tiwari Pyarelal, Godam patti, Shahabpur. Bhullar, Godam patti, Shahabpur. Ramesh, Godam patti, Shahabpur. Ashutosh, Godam patti, Shahabpur. Khichrilal Pasi, Pasiyapur, Shahabpur. Ibid. Jagroop Pasi, Pasiyapur, Shahabpur. Ramnath Pasi, Pasiyapur, Shahabpur. Vijay Pasi, Pasiyapur, Shahabpur. Rakesh, Pasiyapur, Shahabpur.
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3 Rights and Social Justice for Tribal Population in India AMIT PRAKASH
T
he discourse of rights and social justice has emerged as the leitmotif of social sciences and offers a robust analytical tool for the analysis of issues present before human societies. Besides, it also enables analysts to examine contemporary reality against a cherished normative goal, which holds public agencies accountable for their acts of omission and commission. These issues are nowhere as central as with respect to marginalised sections of the society, amongst which the tribals are in the forefront. Given the social and economic marginalisation of the tribal population in India, the issue of social justice and tribal rights is inextricably linked to the question of ‘development’.1 Both reinforce each other leading to a distinctive content to the concept of tribal rights in India, which, along with the discourse of indigenousness becomes the anchor for discussions of social justice for the tribals. This chapter undertakes a critical evaluation of the status of tribal rights in India with a view to focus on the outcome of institutional processes aimed at securing social justice for the tribal population of India.
I The Constituent Assembly of India broke new grounds when it incorporated a chapter on Fundamental Rights (Part III of the Constitution)
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whose objectives are well summarised in the Preamble to the Constitution, which declares that the state will not only guarantee ‘equality of status and of opportunity’ and ‘justice, social economic and political’ but also seek to promote amongst all citizens ‘fraternity assuring the dignity of the individual’.2 Clearly, individual rights are guaranteed by the Constitution, as enumerated in Part III of the Constitution. Simultaneously, the same section of the Constitution also created certain groups rights under Cultural and Educational Rights wherein the right of ‘any section of the citizens residing in the territory of India or any part thereof’ to have ‘a distinct language, script or culture of its own’ and the ‘right to conserve the same’ was also guaranteed. The same provisions also amplify that ‘no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.’3 This simultaneous privileging of both individual and group rights have been playing out in a socio-economic and political context wherein a number of historically disadvantaged communities have continued to suffer a variety of handicaps—social, economic and political, with the result that the rights guaranteed to them by the same Constitution are far from being realised. This tension lies at the root of both, the problems in assessment of rights of marginalised sections as well as the political contestation for the realisation of social justice in a resource-deficit political economy. One of the most marginalised communities in India are the tribal communities, who despite special enabling provisions for them in the Constitution, a legal framework for the implementation of these provisions and several targeted public policy initiatives, have continued to suffer deprivations of myriad kinds. In other words, the rights guaranteed to the tribal population have been grossly violated leading to denial of social justice. The tribal population not only face severe socio-economic marginalisation but also the threat of undermining of their distinctive culture and identity, which in turn is rooted in their livelihood patterns. Tribal rights thus acquire a substantive content of right to socioeconomic development as well as right to preservation of their sociocultural distinctiveness. However, both these substantive aspects of tribal rights are under threat from the processes of development adopted by the Indian state leading to a pressure on the space necessary
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for a negotiation of these rights in their correct context. Thus is generated a politics of development and identity, which has perhaps formed the leitmotif of all contestation for tribal rights in India.
II
THE RIGHTS FRAMEWORK
FOR
SOCIAL JUSTICE
While discourse on tribal rights forms an integral part of the activist discourse and has successfully managed to underscore the importance of concerted attention to deal with the problems and issues faced by the tribal populations, academic interrogation of the phrase to arrive at analytical exactitude is fluid. Therefore, in order to make an assessment of the status of rights of tribes, some attention must be focused on the parallel set of discourses of rights, which include human rights, right to development, fundamental rights and political and civic rights and deductively, rights of minorities and tribes. Tribal rights can be seen as a part of the larger discourse on Human Rights, which emanates from the Universal Declaration on Human Rights, 1948 and is constantly being developed and refined through the avenues of political contestation and international debates and discussion to include a wide array of rights that are fundamental to dignified human existence. This United Nations (UN) declaration was to be followed by a single covenant codifying all the rights but due to a variety of political economy reasons, ‘two separate covenants were adopted in 1966—one on civil and political rights and the other on economic, social and cultural rights. The human rights community remained pre-occupied mainly with the former’ while the latter was paid little attention. The ‘human rights discourse thus remained parallel to the development discourse’ (Osmani 2005: 110) until the 1960s. It was only in the 1970s (with the debate around a New International Economic Order) that issues of socio-economic development came to the centre-stage, even though much of the development economics literature had been focusing on some of these issues since the end of World War II. However, the international political climate prevailing during the 1970s precluded any agreement on socio-economic rights until as late as 1986 when a Declaration on the Right to Development
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was adopted by the UN General Assembly, which defined the right to development as an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.4 It is a ‘a right to a particular process of development in which all human rights and fundamental freedoms can be fully realised—which means that it combines all the rights enshrined in both the covenants and each of the rights has to be exercised with freedom’ (Sengupta 1999: 9). While the declaration has been in existence for two decades now, it has been difficult to arrive at a consensus amongst countries and there are no binding instruments in place for the implementation of the rights enumerated in this declaration. At the ground level, the discursive impact of the declaration has been more important than the direct policy impact. The Right to Development (RTD) has emerged as a central anchor for much of the discussion on human rights and development issues. In fact, most of the development community speaks in terms of a human rights approach to development meaning that ‘policies and institutions chosen for achieving development should be based explicitly on the norms and values set out in the international law on human rights…’ (Osmani 2005: 112). However, while the RTD debate has covered substantial ground, there are still many issues that require delineation, clarity and consensus. ‘For instance, … an important issue that requires understanding relates to the obligations of the dutyholders, especially when duty-holders are the States in their collective role, or when developed States are seen as duty-holders for meeting the entitlements held by the population of the developing countries. Similarly, given that the RTD Declaration has defined the right as an individual as well as a collective one, there are issues related to the nature of the entitlements and duties…’ (Malhotra 2005: 145). It is in this fluidity of conceptual, legal and operational aspects of the right to development as a human right that the debate about tribal right has been conducted. Deriving from the Universal Declaration on Human Rights, Tribal Rights were partially codified by International Labour Organization’s (ILO) Indigenous and Tribal Populations Convention, 1957 (No. 107), which was also ratified by India. This
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convention requires the governments of all member countries to take all measures for enabling the tribal populations ‘to benefit on an equal footing from the rights and opportunities which national laws …’ grant to rest of the population and frame policies for ‘promoting the social, economic and cultural development of these populations and raising their standard of living ….’ Besides, this convention calls upon governments to create conditions ‘of national integration to the exclusion of measures tending towards the artificial assimilation of these populations’.5 Thus, according to this convention, tribal rights include all efforts aimed at ensuring that the tribal population, while preserving their social and cultural distinctiveness are able to benefit from the same rights and opportunities which are available to the rest of the population, besides encouraging integration of the tribal populations with the rest of the population, albeit without policies of artificial assimilation. In accordance with the changing contours of the discourse briefly highlighted above, ILO Convention 107 was revised and the resulting convention known as the Indigenous and Tribal Peoples Convention, 1989 (No. 169), has been ratified by 17 countries, but not India.6 The new convention enjoins upon governments of Member States to continue efforts to ensure that tribal populations are able to ‘benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population.’ However, this convention requires governments to promote ‘full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions,’ besides creating a policy environment to assist ‘the members of the peoples concerned to eliminate socio-economic gaps that may exist between indigenous and other members of the national community, in a manner compatible with their aspirations and ways of life’.7 The operationalisation of the right to development ‘implies free, effective and full participation of all the individuals concerned in the decision making and the implementation of the process’ in a manner that is transparent and provides equal opportunity to benefit from the resources of development in an equitable manner (Sengupta 1999: 10). Further, RTD creates a duty on the state to ensure that legislative and executive authority is discharged in a manner such that this right is realised through appropriate development polices.
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Thus, the international Human Rights discourse has moved on to include the questions of tribal identity, culture and heritage, and all means to preserve and promote this aspect of tribal life as a part of tribal rights; in addition to securing them the opportunity of socioeconomic development leading to a full realisation of their rights as citizens. The contemporary discourse on tribal rights thus includes both components: socio-economic development of tribal communities as well as provision of conditions for full realisation of their cultural identity. Operationally, these rights would include flow of equitable benefits of the development process to the tribal communities as well as guaranteeing their rights over lands, natural and forest resources, access to proper livelihood and development facilities. Theoretical Anchors: Liberal State and the Discourse of Autonomy The fundamental principles of liberal democracies—basic individual civil rights and political rights, ‘are well-articulated both in the actual functioning of Western liberal democracies and in the tradition of Western political theory.’ However, ‘it is difficult to define the basic features of a liberal-democratic approach to managing ethno cultural diversity …’ (Kymlicka 2000: 183), including myth of ‘ethno cultural neutrality’ of the state. This myth lies at the roots of the inability of the modern rationalist liberal state in dealing with the diverse claims of rights placed before it by highly mobilised identities premised on cultural factors and demanding autonomy. The state has responded in a rather ad hoc fashion to such demands with responses ranging from conceding minority cultural rights to denial of all such claims. ‘The emergence of ethnicity and minority rights on the political theory mainstream agenda can be traced back to John Rawl’s writings on pluralism and consensus as the essence of liberal democratic thinking,’ which created a large literature engaging with the liberalismcommunitarian divide. Autonomy of the individual was pitted against the arguments in favour of ‘a broader communal socialisation in a historically rooted culture’ as necessary precondition for such individualism (May et al. 2004a: 4). This led to debates about the necessity and mechanisms to accommodate communitarian claims into broader liberal political theory.
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Amongst other things, attention of scholars has been focused on the claims that ethnic identities (such as tribals) lay on the state and the political process, which in turn structures the debates within political theory. These claims may be classified into three broad sets (Kymlicka 1995): 1. Claims of special rights from the government: special representation rights, devolution and national self-determination. 2. Claims of special rights to seek accommodation of a variety of cultural practices: exemption rights and cultural rights leading to special status to disadvantaged communities including affirmative action programmes. 3. Demands that are not claims to rights but to collective esteem: symbolism of flags, names, public holidays, national anthems, public funds for cultural activities, educational curricula and so on. While debates continue about the appropriateness of granting the rights being claimed by the articulated ethnic identities, distinction is also made between rights that may be granted to ‘national’ identities and ethnic identities. Theorists have argued that while ‘national’ identities may be granted special status, smaller ethnic identities can only be granted rights that enable them to integrate with the mainstream on fair terms. This global debate is founded on the central premise of liberal state wherein political process should be founded on interests, free association and ideology and all groups claiming rights on any other basis are somehow less ‘legitimate’. While consensus amongst theorists on these issues is still a long way away, the local reality has been of a consistent growth in ethnic (mostly but not by any means only tribal) politics8—both at national as well as at the international levels. This has led to demolition of the notion that with increasing modernisation and communication, more particularistic identities would eventually be eroded or would be submerged into national identities. In fact, ‘instead of abandoning their traditional ethnic identities in the quest for socio-economic and political equality,’ ethnic groups ‘have retained them along the way, even when they have made it to the top—ethnicity continues to be an important and meaningful source of identity for millions of people in the world’ (Scott Jr 1990: 148). This pattern seems to have intensified in the era of increasing global integration. In fact, ‘as
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globalised modernity challenged all societies, the forces of reaction gathered … the opposition to globalisation was largely parochial …’ (Murden 2005: 545–46). Amongst the many consequences of this pattern of political mobilisation has been that the political process must grapple with a wide variety of demands on the liberal state, many of which militate against the liberal state, premised as it is on individual rights. The states have adopted a wide variety of responses to these demands—from repression to cooption and the entire spectrum in between. However, what is of interest to the politics of ethnic identity articulation is the fact that most modern states operate a diverse set of equalising policies such as ‘affirmative action’ or ‘protective discrimination’, located in the global discourse on development and modernisation, especially when these policies have failed to prevent ethnic identity articulation.9 Being subject to the ‘affirmative action’ of the state, the development argument becomes central to the politics of identity. Thus, there exists a paradox with respect to most identity articulations: almost all ascriptive ethnic identities require a ‘rational’ argument of socio-economic deprivation as an added premise for their articulation.
TRIBAL RIGHTS
III
AND
THEIR OPERATIONALISATION
As the discussion above shows, the substantive content of tribal rights is not only contested but also difficult to concretise. It could mean very different things to different persons, depending on their viewpoint as well as context. In contemporary South Asia, much of political contestation seems to take the shape and form of politics of identity. The politics of tribal rights lies very much within this category. The premises, boundaries, self-definitions, mode of articulation, and so on, of such politics of identity may vary in each region and case but the basic argument stands that there seems to be almost no serious contestation of the political space (with the state as well as with other similarly politically-articulate groups) that is not rooted in (and often articulated through) the politics of identity.10 For instance, the range of politics of identity in India
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is wide.11 With only very few exception,12 all other articulations of identity demand various degrees and forms of autonomy. However, there is no consensus about what is the meaning and content of ‘autonomy’. Articulations of visions of autonomy are as varied as the groups and political actors demanding it.13 The substantive content of tribal rights may therefore be operationalised as comprising of the following two components:14 1. Right to preservation of their socio-cultural distinctiveness. 2. Right to socio-economic development. The first covers a set of tribal rights, which invokes the liberal notion of rights and multi-cultural politics, fundamental rights and human rights. The local political contestation for the realisation of these sets of tribal rights is normally expressed in demands for administrative autonomy (including the right to self-determination), right to special representation, the right to special culturally-oriented affirmative programmes and often, demands (not necessarily claims) for collective esteem: symbolism of flags, names, public holidays, national anthems, public funds for cultural activities, educational curricula, and so on. The second set of tribal rights straddles the framework of right to development and various international articulations about socioeconomic rights. This set of tribal rights lay a claim on the state for adequate public policy mechanisms for ensuring that the members of the tribal societal groups are able to claim the same level of socioeconomic development as the rest of the population. Many aspects of these sets of rights are rooted in an ‘original settler’ argument by the tribal populations and thereby claim an over-riding right to the resources of the region. While this aspect of tribal rights is central in any analysis of the tribal right to socio-economic development, it must be kept in mind that these arguments often become essentialist (Bowen 2000: 12–16). The two sets of rights enumerated above are not exclusive to each other. It can be argued that one set of tribal rights is meaningless without the other. In fact, two are closely linked with the help of: (a) politics of development and identity; and (b) claims for participation in decision-making (for instance, local governance). Within this framework, the chapter will analyse and assess the status of tribal right and social justice for the tribal population in India.
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For the purpose of this chapter, while the first (Right to preservation of their socio-cultural distinctiveness) is not unimportant, it is the second (Right to socio-economic development) that forms the basic analytical anchor for the assessment of the impact of the institutional processes on securing social justice for the tribals. Context and Background While a number of terms are used to refer to the tribal population, such as tribes, adivasi, aborigines or autochthones, social science has ‘not examined the term “tribe” in the Indian context rigorously’ (Shah 2004: 92). Hence, the discussion about tribal population in India has largely followed the government categorisation of Scheduled Tribes (STs),15 under which 212 tribes have been declared STs by presidential order under Article 342. This study has adopted the categorisation in use by the governmental agencies as well as social scientists and the terms tribe, tribal and STs have been used synonymously. As per Census 2001, STs are 8.2 per cent of India’s population (8.08 per cent in 1991 Census) and continue to be at the margins of the development process. ‘Incidence of poverty was higher among tribals in 1999–2000 at 44 per cent, while among “others” (that is, non-adivasi, non-dalit), it was 16 per cent. Between 1993–94 and 1999–2000, while the poverty ratio among Dalits fell from 49 per cent to 36 per cent, and that of “others” (non-dalit, non-adivasi) even more from 31 per cent to 21 per cent, the poverty ratio amongst Adivasis fell from 51 per cent to just 44 per cent’ (Antony et al. 2003). Thus, the tribal population has recorded not only a higher rate of poverty but also a slower rate of decline in poverty over two decades. Shortfalls in the policy mechanisms, both at the planning as well as implementation levels account for such state of affairs but much of the blame has to be carried by the industry and large projects-led development model adopted for most of India, tribal areas included. The centrality of this factor lies in the fact that much of tribal economy, which is rooted in the natural resources locally available (forests, land, water, and so on), has been threatened by the industryled development model adopted by both the colonial as well as the post-colonial state in India. Such ‘modern’ forms of economic activity have limitations in tribal areas owing to the geographical factors,
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while the older and perhaps, more sustainable livelihood patterns have been severely disrupted by the commercialisation of resources. This creates a situation wherein the tribal communities are left with very few livelihood options, severely threatening the securing of social justice and rights of the tribals. For instance, the creation of modern industry and projects in tribal areas (many of which are resource-rich in terms of natural resources, minerals, forests, hydro-electric potential, and so on) has often dislocated the tribal communities. This not only destroys their life and livelihood but also creates a serious dislocation of communities, thereby impacting their cultural distinctiveness.
IV TRIBAL RIGHTS AND SOCIAL JUSTICE IN INDIA: RIGHT TO SOCIO-ECONOMIC DEVELOPMENT It is not easy to analyse the status of socio-economic development of the tribal population of India. The main reason is that detailed datasets for tribal population are largely absent. For most indicators of socio-economic development, particularly for issues such as forests, land and water, there is no separate dataset available classified by STs. All that is available are district totals. The status of the right to socio-economic development of the tribal population of India is perhaps the lynchpin in securing the future of tribal rights in the country. Unless the entire ST population of the country has access to equitable and just mechanisms of development in a participative manner, the ST population will have no hope of realising their socio-cultural rights, which is arguably already available to them. Thus, socio-economic development of the tribal population is the central link in the realisation of the tribal rights and social justice for the Adivasis. Demographics All rights are inherently contestable, politically. And in any democratic system, political contestation is, apart from other factors, a function of the demographic patterns of a society. Therein lies the rationale for
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some focus on the demographics of ST population of India. Besides, the focus of this study being on the tribal population, a brief analysis of the demography will also highlight the geographical areas requiring greater focus as the tribal population is not uniformly dispersed across the country. The total population of STs in India amounts to 8.2 per cent of the total population as per Census 2001, a marginal increase from 8.01 per cent in 1991. Further, as Figure 3.1 shows, the ST population is a sizeable population in a majority of the Indian States, accounting for at least 10 per cent of the total population in 17 states or union territories (UTs) in India. This fact also underlines the centrality of the importance of focusing on the ST population in any discussion of social justice in India. It is also important to note that ST population is in a majority only in six states/UTs (namely, Mizoram, Lakshadweep, Nagaland, Meghalaya, Arunachal Pradesh and Dadra and Nagar Haveli), whose creation as autonomous administrative units (states/UTs) is arguably premised on the idea that the majority of the population residing in these geographical areas share a distinctive historical experience and a unique heritage and culture, which needs to be politically recognised in these units. Also, it is not a coincidence that all six of these states and UTs share a common historical experience of socio-economic and political marginalisation under the system of ‘Exclusion’ that obtained in the colonial period (many central features of which continued in post-colonial India) (Prakash 1999: 113–39). The ST population in three of the rest of the nine states—Tripura, Manipur and Sikkim, share the same characteristics of marginalisation and distinctive cultural heritage albeit have a greater penetration of nonST population. Two of the rest six—Jharkhand and Chhattisgarh, have been created as separate states in 2000 on similar premises of marginalisation as well as distinctive tribal identity and culture. The factor of significant tribal presence is also important in the rest of the states which have more than 10 per cent of their population from tribal origins: Orissa, Madhya Pradesh, Rajasthan, Assam and Jammu and Kashmir. Thus, clearly, statistical evidence buttresses the premises of this chapter that issues of social justice in India cannot be addressed without sufficient attention to the tribal population of India. It would however not be possible for this chapter to undertake a detailed analysis of all the 17 states. The rest of the chapter will
FIGURE 3.1
Source: Author. Based on statistics derived from Census of India 1991 and 2001.
Percentage of ST Population in Some Indian States: 1991 and 2001
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therefore focus on Chhattisgarh, Jharkhand, Orissa, Madhya Pradesh, Gujarat and Rajasthan; which arguably are the most central States as far as the tribal population of India is concerned. Three delimiting factors have been applied to for the choice of these states: (a) owing to their peculiar administrative place in the Indian Union, the UT will not be a focus of this chapter; (b) while tribal presence in all states requires focused attention, this chapter will focus only on the larger states of the Indian Union (in the process, the eight Northeast states shall not be included in the analysis henceforth). Additionally, while having faced exclusion and marginalisation in a variety of ways, the Northeast states also have a particular historical dynamic which is quite different from the rest of tribal India. And (c) Jammu and Kashmir will be excluded from the analysis owing to interpenetration of a history of exclusion for most of the state with that of extraordinary socio-political conditions. Sex Ratio An important factor indicative of the level of socio-economic justice in any social group is the sex ratio. Besides, it also serves as a good proxy for a number of processes of socio-economic change such as the level of women empowerment, and so on. The sex ratio of the ST population in each one of the six states being focused upon was better than the total averages. Also, the sex ratio for the entire country was 927 in 1991, which improved slightly to 933 in 2001. Similarly, the sex ratio of the ST population increased from 972 in 1991 to 978 in 2001. Amongst the seven states being focused upon, Chhattisgarh has the highest sex ratio for ST population in 2001 at 1,013 compared with 989 for the total population. Orissa followed closely with the ST sex ratio at 1,003 compared with 972 for the total population in 2001. Similarly, the sex ratio for the ST population was higher than the total population across the rest of the five states in 2001. ST sex ratio for Jharkhand was 987 (941 for total population); for Madhya Pradesh the same figure was 975 (total population: 919), for Gujarat it was 974 (total population: 920), while Rajasthan’s ST sex ratio was 944 (921 for total population) in 2001. Besides, the higher sex ratio for STs also contained a positive improvement over the decade 1991–2001, sometimes against the trend for the total population of the state (see Figure 3.2). Thus, clearly the issue
FIGURE 3.2
Source: Author. Based on the statistics derived from Census of India 1991 and 2001.
Sex Ratios: State Averages and ST Population Average: 1991 and 2001
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of a declining female population along with its corollaries of depressed social conditions of women does not appear to be significant issue amongst the ST population. This statement however, requires to be tempered with the reality of poor socio-economic attainments of ST women compared with ST men, which will be analysed in the rest of the chapter. Literacy and Education Literacy and education are useful analytical anchors for an analysis of the status of socio-economic rights of the ST population. These indicators capture not only the central output indicator that determines realisation of many of the socio-economic rights but also enables us to address some of the process components for the realisation of such rights. Hence, some degree of attention must be devoted to the analysis of literacy and educational attainments of the ST population in India and in the six states being focused upon. Turning attention to literacy first, Figure 3.3 delineates the literacy rates of general and ST population in 1991 and 2001. India averages for literacy rates of ST population stood at 59.2 per cent for males and 34.8 per cent for females in 2001. These literacy rates are much poorer than the India averages at 75.3 per cent for males and 53.7 per cent for females (see Figure 3.3). However, the rate of growth of the literacy rates for the ST population since 1991 was quite good from 40.6 per cent for males and 18.1 per cent for females in 1991. This high decadal rate of growth in literacy of ST population of India however masks significant disparities in relation to the country averages as also, the significant gaps that must be met for full literacy, particularly for female literacy. Turing to the six states, the highest literacy rate for ST population was in the newly carved state of Chhattisgarh with 65 per cent of ST males and 39.4 per cent of ST females being literate (state average: 77.86 per cent males and 52.4 per cent females). In this case, the gap between the ST averages and the state averages was also the narrowest at about 12 per cent. Rajasthan was the unlikely second in the levels of ST literacy in 2001 with 62.1 per cent males and 26.1 per cent females being literate. In this state, ST male literacy doubled from 33.2 per cent in 1991 while ST female literacy grew exponentially from the 1991 figure of
FIGURE 3.3
Source: Author. Based on the statistics derived from Census of India 1991 and 2001.
Literacy Rates of General and ST Population in Some States of India: 1991 and 2001
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4.42 per cent. In a similar vein, the gap between the general literacy rate and ST literacy rates in the state also narrowed over the decade 1991–2001 (see Figure 3.3). Similar growth patterns in ST literacy can be noticed in other states as well with two patterns being quite evident. First, ST male literacy still hovered around the halfway mark while female literacy ranged between one-quarter and one-third of the total female ST population. Giant strides were still required to meet the goal of full literacy amongst the ST population of the states under analysis. Second, the rate of growth in literacy of ST population over the decade 1991–2001 was larger than the rate of growth in literacy of the general population. Thus, while the first pattern indicates a poor level of achievement in ST literacy, the second pattern promises to change this state of affairs. If such a trend of improvement is to sustain, one must analyse the question of sustaining the efforts at enhancing ST literacy, which of course is a direct function of enrolment and schooling. Table 3.1 delineates the gross enrolment ratio (GER)16 of ST and total population for the year 2001–02, which is a handy tool for analysing the degree of participation of the total and ST population in the various stages of the schools system in the six states. First, for India as a whole, the GER for the pupils in Classes I–VIII was 82.35 in 2001–02 (boys: 90.69; girls: 73.56), which had increased to 94.23 in 2004–05 (boys: 97.56; girls: 90.61). Similar patterns were present for ST population with the GER of 88.95 (boys: 99.82; girls: 77.34) in 2001–02 increasing to 104.33 (girls: 98.25; boys: 110.09) in 2004–05. Thus, GER for the ST population in 2001–02 was higher than the total population—a pattern that continued in 2004–05. In fact, the GER of ST population rises at a much higher rate during this period. The results of this larger participation of ST pupils in primary and middle school are evident in the improving literacy rates of the ST population. However, all was not well as a high GER also indicates participation of overage pupils and those repeating the same grade. Given the historically disadvantaged socio-economic conditions of the ST population in the country, it is likely that the higher GER of STs compared with that for the total population is more a function of overage pupils and repeaters. Further, gender inequality is clear in the GERs for the ST population for both years. Moreover, at the primary level, the average GERs mask the wellknown gender inequality between pupils at the lowest levels of the
Mizoram Lakshadweep Nagaland Meghalaya Arunachal Pradesh Dadar & Nagar Haveli Chhattisgarh Tripura Manipur Jharkhand Orissa Sikkim Madhya Pradesh Gujarat Rajasthan
Name of States
86.54 106.4 61.02 97.36 66.1 98.03 74.13 104.3 63.24 107.9 59.76 81.31 53.7 84.75
120.6 111.7 116.4 74.76 61.99 68.52 106.2 105.9 48.48 78.85 96.71 38.17 71.27 102.7
75.8 53.21 59.85 60.18 45.39 61.87 40.87
95.49 103 90.75 100.1 92.46 100.8 82.38 96.01 83.33 102.8 90.58 91.73 67.41 79.41
110.5 109.8 109.4 109.1 119.9 92.89 91.59
96.28 69.02 72.53 86.22 78.42 57.62 64.64
61.91 84.75 111.8
80.77 96.58 106.8
Boys
75.39 113.5 78.23 99.16 57.52 86.28 68.42 94.27 88.33 108.3
Girls Total
113.6
Boys
Total 132.1 107.5 110.7 117.8 125
Boys
Boys
98.39 88.25 90.12 91.57 91.49 81.21 73.28
124.2 108.1 116.1 111.2 93.28 101.9 108.2 90.77 99.13 100.5 76.34 88.56 133.5 97.25 115.6 117.7 112.3 114.9 119.8 102.2 111.2
78.86 72.22 83.56 43.86 67.03 61.99 70.76
57.15 62.99 72.22 30.76 44.33 71.35 46.9
68.01 107 67.59 97.17 77.86 99.35 37.56 78.02 55.89 107.2 66.55 97.34 59.27 101.1
Girls
Total
97.89 89.83 91.65 68.63 92.03 97.72 91.55 94.5 102.3 69.74 98.48
88.93 82.87 84.41 58.83 76.39 98.09 81.34
90.94 109.9
96.84 105.2 91.45 99.07 87.22 89.72 91.64 94.26 90.87 98.82
113 (Table 3.1 continued )
95.29 101 132.8 111.2 122.3 73.18 67.96 70.67 109.5 45.26 76.35 139.1 83.17 112.2 102 47.47 76.19 124.8
90.16 79.47 82.5 78.06 72.59 81.1 61.51
Boys
79.95 113.9 97.51 106.6 60.26 92.19 60.83 97.07 70.02 106.6
Total
Classes I–VIII (6–14 Years)
63.03 82.03 129.9
78.45 89.67 61.43 61.49 65.97
Girls
Classes VI–VIII (11–14 Years)
Total Population
106.7 119.1 81.45 92.53 100 105.1 100.8 105.7 59.15 107.5 112.4 60.16 103.8 114.4 73.77
Girls Total
Classes I–V (6–11 Years)
75.95 93.43 145.6 104.9 124.4 101
92.6 102.7 82.73 90.88 65 75.31 93 93.62 89.45 98.69
Girls
Classes I–VIII (6–14 Years)
70.07 70.57 42.47 73.04 76.74
Girls Total
Classes VI–VIII (11–14 Years)
Scheduled Tribes Population
131.6 106 118.4 81.33 109.4 91.87 100.5 85.9 92.31 75.14 83.42 73.25 108.8 102.3 105.4 63.56 110.6 94.57 102.6 101.7
Boys
Classes I–V (6–11 Years)
TABLE 3.1
State-wise Gross Enrolment Ratio in India, 2001–02
Gulamiya Ab Hum Nahi Bajeibo
Classes I–V (6–11 Years)
NA NA 84.95 52.77 NA
NA NA 91.86 34.46 NA
NA NA 88.37 45.77 NA
NA NA NA NA NA 92.84 83.69 NA
NA NA NA
NA NA NA
NA NA NA
NA NA NA
NA
NA NA NA NA NA NA NA NA 92.45 92.65 97.89 97.72 56.26 72.31 95.45 61.19 NA NA NA NA
NA NA NA
NA
NA NA 97.81 78.7 NA
NA NA NA
NA
106.9 85.06 96.29 82.08 57.28 70.26 99.82 77.34 88.95 105.3 86.91 96.3
NA NA 95.52 79.67 NA
NA NA NA
NA
NA NA 92.86 61.72 NA
NA NA NA
NA
NA NA 98.02 92.89 NA
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
NA
NA
NA
58.94 69.17 77.87 60.39 68.34 80.67 59.43 68.88 87.12 86.88 87
Classes I–VIII (6–14 Years)
85.71 90.14 104.5 71.26 86.41 104.3
98.32 101.5 79.53 90.98
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
Manish K. Jha 90.69 73.56 82.35
NA NA NA NA NA NA NA NA NA NA 91.67 92.57 96.12 95.32 95.73 21.07 30.07 72.72 45.78 59.69 NA NA NA NA NA
NA NA NA
NA
67.77 52.09 60.2
NA NA 93.43 38.22 NA
NA NA NA
NA
87.83 85.62 86.77 87.37 86.43 86.92
92.99 97.59 110.6 105.9 108.3 94.4 82.45 93.81 103.8 84.12 93.39 105.4
82.2
NA
Classes VI–VIII (11–14 Years)
Total Population
Girls Total Boys Girls Total Boys Girls Total Boys Girls Total 94.14 99.66 127.2 107.4 117.4 78.73 62.27 70.63 108.6 90.2 99.54 NA NA 102.4 78.07 89.85 84.32 64.4 74.39 95.91 73.37 84.41
Classes I–VIII (6–14 Years)
Girls Total Boys Girls Total Boys 94.55 101 98.82 93.01 96.14 104.6 NA NA NA NA NA NA
Classes VI–VIII (11–14 Years)
106.8 103.3 105.1 90.32 70.86 80.66 101.9 108.7 95.54 102 101.3 60.84 79.41 106.2
Boys 106.9 NA
Classes I–V (6–11 Years)
Scheduled Tribes Population
Source: Selected Educational Statistics 2001–2002, Ministry of Human Resource Development, Government of India.
Name of States Assam Jammu & Kashmir Maharashtra Daman & Diu Andaman & Nicobar Islands Andhra Pradesh Karnataka West Bengal Himachal Pradesh Uttaranchal Kerala Tamil Nadu Bihar Uttar Pradesh India
(Table 3.1 continued )
114
Rights and Social Justice for Tribal Population
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schooling system. While the GER for ST boys was 106.9 in 2001–02, indicating a high participation rate of boys in the schooling system (including overage pupils as well as those repeating grades), the same figures for the ST girls was 85.06. In the year 2004–05 however, the GER of ST girls had risen to 123.89 compared with 118.03 for ST boys, indicting a higher participation of ST girls in primary schooling. The factor of overage pupils and repeaters in the grade notwithstanding, the higher GER does carry within itself the possibility of a better educational scenario for the STs in years to come. Turning to the states under discussion, the highest GER for ST population for Classes I–VIII was in Orissa at 134.09 (compared with 108.47 for the total population) for the year 2004–05. These numbers represent a significant improvement over the enrolment rates for both the ST and total population over the figures for 2001–02 (see Tables 3.1 and 3.2). Moreover, the rate of improvement of ST GERs is much greater than that of total population. Further, the GER for girl ST pupils at 128.27 far outstrips all other indicators in Orissa. This higher GER for girl ST pupils is against the national pattern of gender inequality in education and promises to contribute in an improved educational profile of ST women in years to come. The high rate of participation of ST pupils in the education system noticed in Orissa is not a trend that is repeated in all the states with large ST populations. Jharkhand lies at the bottom of the heap with an average GER of only 86.5 for the ST population, which while higher than the GER for the total population at 75.82 in 2004–05 attests to the fact that at least a quarter of the eligible pupils in Jharkhand are still out of school. Gender inequality also becomes stark in such patterns of inequitable participation in the educational system. The GER of ST girl pupils in Jharkhand in 2004–05 was 75.13 while that of ST boys was 97.59. While GER figures for the ST population was better than that of the total population in Jharkhand, gender inequity was quite wide. The GER figures in the rest of the states with large ST populations cover the entire spectrum between the figures of these two states (see Tables 3.1 and 3.2). Overall therefore, the educational scenario for the STs in the six states represents a picture of improving participation of STs in the educational system in some states (sometimes better than the state averages also). However, as Figure 3.3 shows, there is still substantial ground to be covered.
Mizoram Lakshadweep Nagaland Meghalaya Arunachal Pradesh Dadra & Nagar Haveli Chhattisgarh Tripura Manipur Jharkhand Orissa Sikkim Madhya Pradesh Gujarat Rajasthan
Name of States Girls
Total
Boys
Girls
Total
89.2 80.65 97.72 49.41 78.82 61.5 98.04
89.9
82.19 57.45 55.68 72.08 81.75
Boys
Boys
Girls
Total
81.77 112.47 106.47 109.51 58.71 60.34 56.99 58.75 55.6 76.23 75.26 75.76 76.45 118.78 125.17 121.93 75.53 113.47 99.63 106.7
Total
Classes I–VIII (6–14 Years)
70.19 75.55 91.53 36.98 69.21 72.16 86.51
79.87 118.67 106.42 112.63 78.16 112.14 106.92 109.59 94.69 132.45 126.75 129.65 43.41 82.99 68.27 75.82 74.11 111.7 105.1 108.47 66.7 109.36 113.66 111.49 92.56 128.41 121.19 124.95
66.64 79.05 120.37 106.34 113.7
81.33 60.4 55.5 80.96 69.16
Girls
Classes VI–VIII (11–14 Years)
Total Population
Manish K. Jha
135.15 122.47 129.02 67.69 61.05 64.54 110.64 100.67 105.85 126.44 109.86 118.65 80.39 66.27 73.77 109.02 93.42 101.7 114.03 100.63 107.57 86.67 51.01 70.01 105.68 110.53 115.26 125.4 116.66 121.24 84.82 54.8 70.67 110.42 94.06 102.67
79.98 59.02 62.58 53.3 71.91 65.84 53.24 37.85 47.92 34.07 87.92 106.18 93.81 76.94
69.61 112.39 98.98 105.77 136.06 127.53 131.84 58.11 107.58 70.39 71.17 133.67 128.26 131.03 68.99 119.72 109.32 125.34 154.41 148.88 151.69 45.76 97.59 75.13 86.5 102.91 86.34 94.8 41.19 98.58 128.27 134.09 131.89 127.37 129.69 97.05 177.92 114.99 111.54 144.46 142.71 143.58 85.59 139.64 86.1 96.33 146.47 141.24 143.95
Boys
132.08 123.38 127.79 134.58 121.21 128.04 149.05 137.13 143.23 125.85 97.74 111.84 125.38 114.14 119.93 252.92 252.88 252.9 165.21 156.7 61.05
Total
76.77 116.79 105.57 111.56 139.12 129.49 134.5
Girls
133.52 129.67 131.69 88.92 62.2
84.54 57.05 51.91 65.82 86.05
Boys
Classes I–V (6–11 Years)
84.11 116.38 86.41 92.67 132.25 122.71 127.53 58.37 59.98 56.61 58.38 62.27 55.28 58.78 51.59 71.9 70.39 71.17 88.68 87.15 87.94 71.16 108.14 96.23 102.06 145.34 149.95 147.62 80.39 121.5 107.11 114.4 129.95 115.9 123.12
Total
Classes I–VIII (6–14 Years)
83.66 60.13 51.25 76.63 74.73
Girls
Classes VI–VIII (11–14 Years)
Scheduled Tribes Population
137.38 127.58 132.53 61.93 54.85 58.39 84.06 82.01 83.07 131.86 136.24 134.04 139.23 123.94 131.74
Boys
Classes I–V (6–11 Years)
TABLE 3.2
State-wise Gross Enrolment Ratio in India, 2004–05
116
NA NA NA
NA NA NA
NA NA NA
NA NA NA
NA NA NA NA
NA NA NA NA
NA NA NA NA
NA NA NA NA
NA NA NA NA
NA NA NA NA
NA NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
NA NA NA
NA
94.15 98.6 128.15 110.42 109.75 107.9 108.85 103.68 109.87 106.5 107.4 108.6 107.97
129.51 118.03 123.89 75.63 61.7
68.95 110.09 98.25 104.33 111.41 105.48 108.56 74.84 65.76 70.51 97.56 90.61 94.23
NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA 153.32 101.47 128.23 119.04 122.39 120.63 140.14 110.25 113.35 119.52 117.23 118.41 109.22 104.66 107 115.51 112.32 113.96 87.24 55.9 72.23 26.26 14.72 21.13 65.23 42.34 54.54 95.4 71.18 83.75 39.66 24.29 32.43 74.95 54.43 65.16 NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA NA
NA NA NA
NA NA NA
NA
NA
NA
NA
NA
83.1
85.38 74.63 80.26 118.35 186.2 182.06 110.34 110.4 110.37 98.96 97.09 98.08 106 105.38 105.7 NA NA NA NA NA NA 144.93 127.08 136.01 108.63 127.17 116.57 130.41 127.11 128.85
95.3 173.2 121.27 105.2
140.72 120.5 130.5 NA NA NA
111.11 116.61 113.74 99.15 90.64 95.05 106.96 107.49 107.21 105.59 104.8 105.2 72.05 67.22 69.7 92.99 90.81 91.92 111.3 90.83 101.35 93.37 64.52 79.77 104.54 81.29 93.36 84.41 82.98 83.72 64.87 55.39 60.28 76.69 72.06 74.45
Source: Author. Based on the statistics derived from Census of India 1991 and 2001.
Assam Jammu & Kashmir Maharashtra Daman & Diu Andaman & Nicobar Islands Andhra Pradesh Karnataka West Bengal Himachal Pradesh Uttaranchal Kerala Tamil Nadu Bihar Uttar Pradesh India
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Participation in Work: Productive Employment One of the most important indicators in realisation of socio-economic rights of the tribal population of any state is the degree of participation in productive economic activity. The degree of participation of the ST community in work17 is a good proxy for both socio-economic empowerment as well as central factor influencing many of the other parameters of right to development such as literacy and education, consumption (which is related to the issue of nutrition and well-being), health attainments, and so on. As far as the employment profile of ST population in India is concerned, the highest work participation rate was in the new state of Chhattisgarh at 53.4 per cent in 2001 (marginally lower than 54.1 per cent in 1991). It is noteworthy that the ST work participation rate in Chhattisgarh (see Figure 3.3) in both 1991 and 2001 was higher than that of the state average as well as that of general population. This does not necessarily indicate a greater participation of ST population in productive economic activity in the state but could also be indicative of economic distress. Given the poor levels of literacy and education amongst the STs, in all probability, the ST population was largely engaged in poorly paid unskilled work only. At the other end of the work participation spectrum of the STs in the six states was Jharkhand with ST work participation in 2001 at 46.3 per cent (with a marginal increase from the 2001 rate of 45.9 per cent). The state’s average work participation rate was 37.5 per cent in 2001, which again was a marginal improvement over the 1991 figures (see Figure 3.4). Similarly, ST work participation rate in rest of the four states with significant ST population hovered between 40 per cent and 50 per cent and largely followed the trend set by the state averages. Clearly, there was no case to believe that productive employment for STs was on the rise. Mirroring of the ST work participation rates and the state average would indicate that the ST workers continued to be locked into well-established employment patterns in a subordinate position. Given such a pattern of work participation, the possibility of realisation of socio-economic rights of the STs appears to be limited.
FIGURE 3.4
Source: Author. Based on statistics derived from Census of India 1991 and 2001.
Work Participation: ST and Total Population: 1991 and 2001
Gulamiya Ab Hum Nahi Bajeibo
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Displacement and Rehabilitation In any analysis of tribal rights in India, the issue of displacement (and aligned issue of rehabilitation) is a crucial facet of much of the critical developmental discourse. This issue also acquires additional salience in light of the centrality of land and habitat to the preservation and protection of tribal heritage and culture, which in turn is central to the social and political identity of the tribals. Many of the activists and scholars18 have underlined that alternatives should be explored to not displace the tribal population at all and if it is inevitable, the decisions regarding displacement should be arrived at after informed consultation with the affected community. Further, resettlement of the displaced persons should be efficient and within the same sociocultural region (to avoid the possibility of social alienation and fracture of communities), and that compensation be fair and swift. Clearly, the issue of displacement is one of the most important factors affecting the rights of the tribal communities in India. However, dependable datasets on the extent and nature of displacement, particularly those of tribal population, are largely absent. Competing claims are put forth by the state and the affected persons/organisations. Of the few scientific studies conducted on the issue was for Jharkhand by Alexius Ekka, which estimates that more than 1,546 acres of land was acquired for projects between 1951 and 1995, which is about 8 per cent of total land area of the state. These lands have mainly been acquired for mining and hydroelectric projects and have displaced at least 1,503,017 persons, of which about 41per cent are tribals. Only a third of these were resettled, in many cases only nominally (Ekka and Asif 2000: 134). While this data is only for one state, it provides a sense of the vastness of the issue at hand. Other authors have estimated a much higher figure of which about three-quarters are yet to be settled. In the absence of any concrete empirically generated figures, the best we have are contested estimates from the government and tribal activists. The fuzziness about the size of the problem notwithstanding, most scholars agree that sufficiently large numbers of population in Jharkhand, particularly tribal population, have been displaced without sufficient attention to their rehabilitation, seriously undermining their rights. Further, the impact of such displacement is not limited to the physical displacement but has important impact of forced loss of
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livelihood, problems in adjustment of skill sets and social fracture amongst communities. Therefore, it is ‘the process that begins with the announcement of the project and continues long after the people have lost their livelihood.’ It ‘cannot be limited to the narrow concept of physical ouster from the old habitat’ (Ekka and Asif 2000). Such displacement has an added effect of marginalising the already weak sections of society, who are not even consulted, leave alone asked to participate in the decision-making about the project which would displace them and robbing them of their livelihood in the process. Further, the cost–benefit analysis of the value of land acquired for ‘public purposes’ is based on the market value of land and fails to factor in the non-monetised livelihood avenues that the marginalised sections such as the tribals lose. Besides, the absence of formal property relations amongst many sections of the tribal populations ensures that the meagre compensations, whenever they are actually provided, do not accrue to the displaced and often, the most vulnerable sections of the populations. Needless to add, the benefits that are purported to flow to the displaced populations due to the projects are often doubtful and often accrue only to the elite in the local communities, tribals included (Ekka and Asif 2000: 135–37). Further, the tribal populations are at far greater risk (compared with for instance, Dalits) owing to their relative isolation from external economy and greater dependence on their local environment (for instance, dependence on non-timber forest produce) for their livelihood, especially women. More often than not, ‘situation of women is worse than that of men. Tribal women, for example, depend on the Non-timber Forest Produce (NTFP) more than men do since it is their responsibility to ensure the regular supply of food, fodder, fuel and water. They are less literate than men’ owing to which avenues of alternate employment are quite limited and therefore, they ‘continue in the informal sector’ that is often poorly paid, without any infrastructural support mechanisms (Ekka and Asif 2000: 139). Impoverishment as well as environmental destruction is often the only end result of project related displacement. In addition to livelihood and economic opportunities-related issues, the tribals of India also face acute fallout of displacement: loss of social identity. Much of tribal livelihood, economy, and, sociocultural system is rooted in their traditional habitat, forests and land. In addition, the communal ownership of land often prevalent amongst the tribal populations anchors their socio-cultural life and existence.
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Displacement thus imperils their socio-cultural identity—a fact that perhaps cannot be taken care of by better rehabilitation efforts. ‘The tribals are the powerless lot in this system [of exploitation of natural resources in which large-scale displacement happens] that monopolises resources in favour of a small minority. They are only one more dispensable commodity’ (Fernandes 1991: 269). Apart from severely impacting tribal livelihood issues, displacement of people to find space for various projects has also led to numerous clashes between persons protesting against displacement and the state’s law enforcement agencies. The cases are too many to list and analyse19 but the assertion of their right to residence in any area of their choice on the part of the tribals have often clashed with the state and industry’s objectives of maximising exploitation of natural resources in these tribal areas. This clash has often led to a situation in which the state has used both, violence as well as institutional coercion. The net result of this process has been gross violation of the rights of the tribals in which they have often lost their land, liberty, livelihood and sometimes, even their life.20 A central issue in these complex sets of question is that of participation of the tribal population in the decisions about allotment of tribal lands for various activities. Despite ‘Constitutional safeguards and affirmed powers under PESA and SPTA of tribal people to veto the land transfer, the government did not attempt to invite “participation” of the people while leasing out raiyat lands…’ In fact, there was no prior informed consent of the affected tribal population and process utilised amounted to ‘cheating/betraying/luring the tribals…’ and was ‘perfectly wrong interpretation of the “participation”’ (Tribal land Rights 2004: 81). Any protest that was witnessed was suppressed by the use of police. The tribal right to socio-cultural preservation is thus linked to the socio-economic rights and is also threatened.
V
PARTICIPATION, PANCHAYATI RAJ, AND SOCIAL JUSTICE FOR THE TRIBALS The crucial link between the two components of tribal rights and their realisation is participation. Political acceptance of rights and
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their legal creation is of little value if they cannot be exercised by the individuals of the group concerned, in this case the STs. This is the rationale behind the brief focus on institutions of local governance in the six states with substantial tribal populations. The introduction of the Provisions of the Panchayatis (Extension to the Scheduled Areas) Act, 1996 (commonly known as the PESA) was an attempt to extend modern democratic institutions of local governance amongst the tribal population in scheduled areas, while not totally replacing the traditional institutions. This created a sharp divide between the votaries of traditional systems premised on customary tribal headmen and the statutory panchayats elected democratically. This debate notwithstanding, PESA was implemented in almost all areas with significant tribal populations and was aimed at ‘facilitating participatory democracy in tribal areas by empowering the Gram Sabha to manage and control its own resources.’ For this, the ‘Gram Sabhas were given special functions and responsibilities to ensure effective participation of tribal communities in their own development in harmony with their culture so as to preserve/conserve their traditional rights over natural resources. The Act restored primary control over natural resources including land, water, forest and minerals and bestowed rights over minor forest produces to the Gram Sabha’ (Ojha 2004: 4). Table 3.3 delineates the degree of participation in the local governance structures of the various social groups, including the STs in 2004. In terms of proportion of population participating in the local governance structures, the STs were not too poorly placed at the all-India level. In 2004, STs constituted 11.32 per cent of the Gram Panchayat membership, 7.51 per cent of Intermediate panchayat membership and 11.29 per cent of District panchayats. Considering the fact that STs comprise 8.2 per cent of India’s population, the proportion of their participation in the structures of local governance denotes a positive trend and no case can be made about their marginalisation. However, it must be noted here that these levels of participation are a function of statutory provisions and does not necessarily reflect adequate changes in the political process underpinning these participation levels. However, given the fact that the levels of participation of STs in PRIs is at a level higher than the statutory requirements (except for that at the intermediate level, much of which is a function of the absence of an intermediate level
Mizoram Lakshadweep Nagalanda Meghalayaa Arunachal Pradeshb Chhattisgarh Manipur Jharkhande Orissa Sikkim Madhya Pradesh Gujarat Rajasthan Assam Jammu & Kashmir d Maharashtra Daman & Diu
a
States/UTs
TABLE 3.3
ST
– 30.00 – – – 33.74 55.00 – 35.88 36.88 51.11 49.25 34.52 6.77 – 43.53 17.00
Women
Gram Panchayat
– – – 49.00 – – – – – – 12.50 42.02 3.42 4.32 – – 17.05 26.33 4.47 263.00 15.64 27.10 11.89 20.78 21.11 17.61 5.01 0.67 – – 15.06 17.87 1.00 12.00
SC 49 – – 6,260 124,211 1,111 – 87,547 873 208,356 83,213 114,282 15,620 – 178,132 46
–
Total
– – – 34.33 – – 35.14 – 50.24 50.33 36.29 53.21 – 48.91 c
c
c
–
Women
– – – 40.24 – – 27.36 – 26.51 19.87 16.26 86.00 – 18.35
c
– – – 12.05 – – 16.46 – 15.87 9.57 18.41 80.00 – 15.54 –
–
c
ST
c
4,297 2,768 5,257 1,402 – 2,877
c
– 6,227
c
– – 1,615 2,639
c
–
Total
Intermediate Panchayat –
SC – – – – – 10.95 2.56 – 16.28 6.52 16.05 7.17 18.95 19.00 – 15.81 –
SC
Women
– – 14.00 8.00 – – – – – – 40.88 34.67 5.13 56.41 – – 25.64 34.66 39.13 31.52 25.10 51.03 21.14 50.55 16.27 36.11 18.00 117.00 – – 18.76 46.24 3.00 10.00
ST
– 14 – – 138 274 39 – 854 92 486 544 1,008 273 – 1,423 15
Total
(As on 01.04.2004) District Panchayat
State-wise Number of Panchayati Raj Institutions in Three Tiers and their Elected Representatives (SC, ST and Women) in India
124 Manish K. Jha
a
– 15.00 27.84 34.37 26.41 2.21 17.58 27.08 16.07 22.10 – 21.68 31.89 23.11 27.00 2.00 – – 16.75
– 261.00 498 – 8.00 33.00 208,291 17.69 14.04 67.24 53,421 26.97 8.74 28.96 39,703 35.80 994.00 36.78 18,549 26.36 703.00 7.40 243,874 11.52 2.00 56.76 8,458 18.63 821.00 36.73 71,277 28.52 0.75 34.95 116,029 16.01 207.00 61.15 377,518 23.26 d – 46.54 982 – 33.59 54,646 22.67 – 55.48 48,860 31.55 157.00 50.00 3,790 40.41 – 55.00 162 26.67 118.00 45.00 124 – – – – – – – – – 11.32 40.57 – 20.43 – – 7.51
d
– – 7.77 –
d
– 7.48 11.29 9.07 6.82 2.10 1.78 0.98 0.78 0.05
– – 43.41
d
34.65 48.77 54.92 6.00
d
– 17.90 26.73 35.63 25.90 12.39 16.34 28.78 16.09 23.39 d – 2,430 21.34 1,667 31.58 193 40.74 15 3.00 d – – – – – 109,324 18.80
25.00 42 33.65 14,617 63.60 2,162 28.89 6,656 33.90 1,658 54.16 2,092 62.34 1,009 36.88 4,800 35.01 11,611 55.81 33,290
– 7.95 9.14 8.99 8.37 2.21 1.98 0.62 0.77 – – – – 4.00 – 12.00 – – 11.29
10.00 20 33.24 1,095 57.36 591 27.51 567 34.66 251 52.65 226 51.98 202 35.82 483 35.28 1,162 58.89 1,338 51.52 33 34.71 314 46.84 190 51.85 54 3.00 10 4.00 12 – – – – 42.05 11,708
b
Meghalaya, Mizoram & Nagaland are traditional councils. Panchayati elections held on 02.04.2003 except in Tirap district. Detailed information is awaited. c Intermediate Panchayat does not exist (2 tier). d Has not adopted the Constitution (73rd Amendment) Act, 1992. e Elections to the local bodies are yet to be conducted. Source: Statistical Abstract India, 2003, Central Statistical Organisation, Ministry of Statistics and Programme Implementation, Government of India.
Notes:
Andaman and Nicobar Islands Andhra Pradesh Karnataka West Bengal Himachal Pradesh Uttaranchal Kerala Tamil Nadu Bihar Uttar Pradesh Goa Haryana Punjab Tripura Chandigarh Dadra & Nagar Haveli NCT Delhi b Pondicherry e India
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panchayats in some of the ST-majority states), there is some reason for harbouring hopes of a gradual progress in realisation of the rights of the ST population in India. Turning to the levels of ST participation in the local governance structure in the six states under analysis, the new State of Chhattisgarh leads the way at the Gram Panchayat level with 42 per cent of the STs constituting this level of the local governance structures. At the intermediate level, 40.24 per cent of the membership is constituted by STs, while 40.88 per cent of the District Panchayats in Chhattisgarh is comprised by STs. At the bottom of the heap is the state of Rajasthan where despite a longer history of experimentation with structures of local governance, the level of representation of STs was low. At the Gram Panchayats level, ST members constituted 17.61 per cent of the total membership while at the intermediate Panchayat level, their proportion of membership was 16.26 per cent. The District Panchayats continued the same level of ST participation with 16.27 per cent of the members being STs. However, in both these states, Chhattisgarh and Rajasthan, the proportion of PRI membership from STs was larger than their proportion of the population (see Figure 3.1). Given this fact, the level of representation of STs in the local governance structures was better than statutorily required. This factor thus adds to the possibility of realising the rights and social justice for the tribal population in the two states. Similar patterns of slightly higher proportional participation of STs in the local governance structures compared to their share of population in the respective state can be noted in the Gujarat, Orissa and Madhya Pradesh. This attests to the establishment of the idea of STs’ participation in local governance structures in the political process of all the states with significant ST population. This augurs well for the possibility of addressing the issue of social justice for the tribal population in these states and the whole of India. However, in the new state of Jharkhand, the elections for Panchayati Raj bodies is yet to be held despite six years since the creation of the new state. This constitutes a series threat to the possibility of realisation of social justice for the tribal population of Jharkhand and amounts to a denial of their right to participate in the processes of governance. While formal participation is one important facet in the process of addressing issues of social justice for the STs, there are some structural issues in the local governance structures as well.
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Social Justice for the Tribals: The Discourse of Institutional Change The issues of land, water, forests and local resources, which are central to the tribals for both, preserving their livelihood as well as sociocultural identity, are under constant threat from various quarters. Formal rights are of little use in the absence of structural conditions for their enjoyment by the tribal population. It is here that the socio-economic rights enter the discussion. As has emerged in the earlier discussion, significant threats continue to the realisation of tribal’s socio-economic rights and justice. Social justice for the tribal population still has a long distance to travel. However, what is positive is the intense and vigorous public debate that has emerged on various aspects of tribal rights. This indicates a degree of democratic contestation, which can only strengthen tribal rights in the country. Two examples of this new environment of public debate are the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 and a Draft National Policy on Tribals. While both these documents have been severely criticised for what they fail to address, the debate and battle for the realisation of about tribal rights has been joined. An example of this is the report of the Joint Parliamentary Committee (JPC) examining the ST (Recognition of Forest Rights) Bill 2005 which has recommended expansion of the rights of the tribals vis-à-vis their forest rights, as per following details: 1. The Bill wanted to give land rights to those living on forestland before 25 October 1980. The JPC wants the date brought forward to 13 December 2005, giving encroachers an advantage. 2. The Bill grants five years’ provisional land rights for those living on forestland, pending relocation with compensation. The JPC wants the time limit to go. It also wants government to redefine ‘voluntary relocation’ with right to return if rehabilitation promises are unfulfilled. 3. The Bill gives forest-dwellers the right to protect the wilderness but no authority. The JPC wants to give communities the right to make regulations to protect wildlife and forest. Conservationists on the other hand fear that the tribals will frame regulations to suit their need for extracting forest resources.
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4. The Bill wanted government officials to decide on land-rights proposals from gram sabhas. The JPC in effect wants gram sabhas to decide on them, though district authorities will also take a call. 5. The Bill does not give any right to non-tribals. The JPC wants to give rights to non-scheduled tribes who have been living in forests for three generations or more or were settled there by the government. 6. The Bill does not have any provision for developmental work. But the JPC wants provisions to allow projects such as school, hospitals and roads. 7. The Bill restricts land-rights claims to 2.5 hectares per family. The JPC wants no ceiling. 8. The committee says the government should not have the power to take away rights given to projects such as mines or industries without the community’s consent.21 While the Union ministry of Tribal Affairs will take a view on these recommendations, keeping in view the public nature of these recommendations and the intense debate around it, the ‘rolling back’ of these recommendation will not be easy. Similarly, the announcement by the Planning Commission that provision is being created for allocation of 25 per cent of all plan funds to the development of SC/ ST population22 is a step in the direction of securing socio-economic rights for the tribal populations.
CONCLUDING REMARKS The foregoing analysis of the status of the impact of institutional process on social justice for the tribals in India clearly underlines the fact that tribals continue to be the most marginalised section of India’s population. On most available socio-economic indicators for the STs, there is still a long distance to be covered for the realisation of social justice for the tribal population and securing their rights. On the other hand, the available indicators also point to the increasing degree of participation of STs in most developmental processes.
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Further, the adequate degree of representation of STs in the structures of local governance promise far greater attention to issues of social justice and promotion of tribal rights in years to come. The transformative potential of these processes would also need to take into account the second aspect of tribal rights—right to preservation of socio-cultural distinctiveness, which may face threat from the unbridled pursuit of social justice. Last, but perhaps most importantly, anchoring the issue of social justice for the tribals in a rights-based discourse enables the analysis to take the issues further by stressing the tribals’ claim to social justice—a far more robust formulation in a participative democracy.
NOTES 1. See for instance the debates on the Bihar Reorganisation Bill, 2000 (which created the state of Jharkhand) on its introduction in Lok Sabha on 25 July 2000 and follow up discussions in Lok Sabha on 2 August 2000. There was a general consensus amongst the members that ‘development’ was the main issue left to be realised after the State recognising the Jharkhandi identity was created. Lok Sabha Debates, XIII Lok Sabha, 25 July 2000 and 2 August 2000. 2. ‘Preamble’ to the Constitution of India (as on 1 January 2001), New Delhi: Lok Sabha Secretariat, n.d., Article 366. 3. Constitution of India, Articles 29 (1) & (2). 4. Declaration on the Right to Development, adopted by General Assembly resolution 41/128 of 4 December 1986, Article 1. 5. Indigenous and Tribal Populations Convention, 1957 (No. 107) adopted by the General Conference of the International Labour Organisation on 26 June 1957, Article 2. 6. India’s hesitation in ratifying this Convention is mainly due to the explicit mention of the right to self-determination. India, faced as it is with a variety of violent and non-violent identity movements in the northeast part of the country and Kashmir, is loathe to accept this principle fearing balkanisation of the country on tribal lines. 7. Indigenous and Tribal Peoples Convention, 1989 (No. 169) adopted on 27 June 1989 by the General Conference of the International Labour Organisation, Article 2. 8. This has had a significant impact on the conception of liberal state as well as liberal-democratic politics. 9. In fact, in some cases, these very policies of affirmative action may be responsible for encouraging a swifter identity articulation.
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10. While some of the Left movements in many parts of South Asia may not qualify for such a description, their being restricted to certain geographical pockets in the country would indicate that the question of identity is not totally irrelevant. 11. For instance, linguistic movements in the many parts of India during the late 1950s–1970s; the numerous ethnic identities in the northeastern parts of the country; the Dalit assertion of north India; various ‘development-deficit’oriented articulations across the country (such as Telengana, Ladakh, erstwhile UP hills or Uttaranchal, north West Bengal, tribal south Gujarat and erstwhile tribal Madhya Pradesh or Chhattisgarh, and so on); the Coorg issue in Karnataka, communal mobilisation of 1980s and 1990s; and so on. 12. Namely, the communal identity politics and Dalit assertion. 13. Many groups in Nagaland view autonomy as a sovereign state, while many of the other articulations would be happy with a state within the Indian Union, as has been the case in Jharkhand. Still others wish to see the creation of a sub-state ‘development’ council while yet others have a vision of a regional, multi-state structure. 14. For instance, P.N.S. Surin, a former bureaucrat with a long experience of administration and a tribal himself listed tribal rights to include: (a) right to land; (b) customary forest rights; (c) cultural and religious rights; and, educational rights, interview with P.N.S. Surin at his residence in Ranchi on 22 February 2006. 15. Article 366 (25) defines STs as ‘such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purpose of this Constitution.’ Constitution of India (as on 1 January 2001), New Delhi: Lok Sabha Secretariat, n.d., Article 366. 16. Gross enrolment rate is the total enrolment in a specific level of education, regardless of age, expressed as a percentage of the official school-age population corresponding to the same level of education in a given school-year and is widely used to show the general level of participation in a given level of education. It indicates the capacity of the education system to enrol students of a particular age group. While a high GER generally indicates a high degree of participation, whether the pupils belong to the official age-group or not, GER can be over 100 per cent due to the inclusion of over-aged and under-aged pupils/students because of early or late entrants, and grade repetition. In this case, a rigorous interpretation of GER needs additional information to assess the extent of repetition, late entrants, and so on—much of which is unavailable for the ST population. 17. Due care should be taken while interpreting the work participation rates owing to the constantly changing definitions of ‘work’ in the censuses as well as the low threshold level in classifying any individual as a ‘worker’. For the 2001 census, the scope of the definition of work was expanded to include production of milk for domestic consumption. In the 1991 Census, cultivation of certain crops even for self-consumption was treated as economics activity. The scope of the term Cultivation was expanded in the Census 2001 to include certain other crops
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19.
20.
21. 22.
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such as tobacco, fruits, all types of flowers, roots and tubers, potatoes chillies and turmeric, pepper, cardamom, all types of vegetables and fodder crops and so on. This meant that activities related to production of all the above mentioned crops for domestic consumption has been classified under plantation in the Census of India, 2001. For instance, interview with Sanjay Bosu Mulick at his offices in Ranchi on 24 February 2006 and P.N.S. Surin at his residence at Ranchi, 22 February 2006. For some of the details see ‘Massacres of Adivasis: A Preliminary Report,’ Economic and Political Weekly, 3 March 2001, which provides a narrative of the background and recent events in the long-drawn protest against the Koel Karo hydel power project, which has witnessed more than three decades of sustained activism against displacement as also raises significant issues about the benefits of large ‘developmental’ schemes. For instance, the tribal communities of Kalinganagar, Orissa contested the government’s decision to allot 2,400 acres of their land to a corporate for establishment of a steel plant. The tribals, protesting their displacement and fearing inadequate compensation and rehabilitation measures, assembled to prevent the bulldozers from destroying their houses and taking over their lands on 2 January 2006. Through a contested narrative of events, what is clear is that police opened fire killing 12 tribal protesters. While this particular event occurred in the neighbouring State of Orissa, countless similar incidents of a smaller and less reported nature have occurred in Jharkhand as well. ‘JPC gives forest land rights Bill a pro-tribal tilt,’ Times of India, Delhi Edition, 24 May 2006. ‘Now, 25% Plan funds sought for SCs & STs,’ Indian Express, Internet Edition at http://www.expressindia.com/, 23 May 2005.
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4 AIDS, Marginality and Women PAULA BANERJEE
T
he term AIDS came into existence only in 1981 and HIV, the virus that causes AIDS, was not discovered until 1983. Although the discovery of both the virus and the disease is part of recent history, its impact has been inordinately widespread. There is an entire industry today thriving on this, and AIDS has developed its own vocabulary and discourse. There is a school of thought that looks upon AIDS as solely a biomedical reality. There are others, however, who think of it as purely a product of social construction. In the latter group are those who have developed cultural taxonomies in trying to analyse the risk factor. Of the various cultural models constructed of AIDS around the world, some of the first were those done on American minorities such as gay men and Haitian men in United States. It is now being realised that both these extreme typologies have led to marginalisation of certain groups. Today there is an effort to look at AIDS from a more holistic perspective and analyse how and where such marginalisation has occurred. This chapter is an attempt on these lines and I try to explore how AIDS impacted the lives of people, living in the margins, both geographical and social, in the East and northeast of India.
INTERNATIONAL CONTEXT The known history of AIDS began with the American crisis where a number of gay men were discovered with a rare type of pneumonia.
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The first reports of this appeared in the medical bulletin called Morbidity and Mortality Weekly Report on 5 June 1981, and then there was silence. Between 1981 and 1982 even national newspapers such as The New York Times carried only three report of the scourge that was overtaking New York. Because of the homosexual connections the impact of AIDS was underplayed in these first years. The disease came to be known as the ‘Gay Plague’. As one analyst remarks, for most Americans ‘AIDS was not primarily a public health emergency. It was the Wages of Sin’ (Gill 2007: 11). And hence, the urge for this secrecy. Ronald Reagan was in the early months of his Presidency when the crisis became apparent. It took him years to even mention the word AIDS in public. In the middle of 1987, Reagan was asked what Americans should do about this crisis. His advice was ‘just say no’, but what he failed to state was the fact that, by that time, 25,000 Americans had already succumbed to the disease (Gill 2007: 10). Soon the heterosexual nature of AIDS became known and then the witch-hunt turned elsewhere. According to one observer, this witchhunt ‘soon widened to include other marginalised “bad people” such as intravenous drug users’ (Beine 2003: 62). When ‘normal’ heterosexual people began to be affected in large numbers scientists turned their attention elsewhere. Many among them began to explore the similarity of HIV with Simian Immunodeficiency Virus (SIV) that causes AIDS-like symptoms in some monkeys. Further research confirmed that the common chimpanzee was the main reservoir of HIV-1. It was told that this species of chimpanzee was native of Africa and so AIDS was marked as an African disease. Soon, scientists started looking for evidence of the African connection of AIDS. They found this in two sailors, one from England and another from Norway. The case of the Manchester sailor could not conclusively prove this connection but the sailor from Norway seemed to have contracted a virus very similar to HIV that proved fatal for himself, his wife and their child. The sailor died in 1976 and although he visited Africa, he never travelled to the United States (Ramamurthy 2000: 197). By the time this correlation was established, fear of AIDS and anyone connected to it became entrenched in peoples mind. This was caused by the infectious nature of the disease and the rising number of fatalities. Anyone connected to the disease was assumed to have led a bad life. The African connection did not help matters. Many suggested that it was because Africa had a distinctive
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sexual system; the lax sexual practices of African communities were blamed (Caldwell et al. 1989: 185–234). By the late 1980s, Africa became the centre of attention because of the devastations that it faced due to the AIDS epidemic. The presence of AIDS virus was dated to the last phase of colonial rule in Africa. By 1975, this had reached epidemic proportions but little was known about this because African disasters hardly ever attracted international attention. The first AIDS project began in Kinshasa where 6 to 7 per cent of women in antenatal clinics were found to be infected (Iliffe 2006: 13). From West Africa attention was turned to East Africa. Soon after Kinshasa, Kigali also reported cases of HIV virus. In Uganda the disease was known as ‘slimming disease’ as it led to massive weight loss. What was interesting about the rapid spread of the disease in Uganda was the largely Christian orientation of the country and the strict sexual practices followed. It was no longer a case of Christian or un-Christian lifestyle: In a survey conducted during the late 1980s, only 10 per cent of the men and 3 per cent of the women aged 15–19 in Burundi reported sexual intercourse in the last twelve months, compared with 51 per cent and 30 per cent respectively in the Central African Republic. (Iliffe 2006: 21)
Both the areas reported AIDS cases and more so in Burundi. Yet none of these evidences attracted popular attention. In Tanzania, the first reported cases of HIV virus was in 1983. In these initial days, there were a number of trends that became apparent. It showed that blood transfusions in hospitals led to this incredible spread of the disease. It also portrayed that multiple use of disposable syringe might have helped to spread the virus. But none of these trends captured popular imagination. The international media highlighted more the role of migrants and their sexual orientations as the primary cause for the spread of the virus. There was little discussion on a few findings that held the colonial masters and their experimentation in different types of vaccines as a probable cause for AIDS. It was much less traumatic to blame the migrants and their practice of visiting sex workers. In the 1980s, the other group that was blamed in this region were the young fishermen and smugglers who flocked the lakeshore to exploit the Nile perch fisheries and the magendo economy. That was how AIDS came to be known in popular perceptions. Such ideas proved decisive in shaping official discourses on AIDS throughout the world.
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The countries of southern Africa, though infected later than those of East Africa, overtook the other region during the mid 1990s and then experienced the world’s most serious epidemics. The earliest definite indication of HIV in southern Africa came by chance from northern Malawi. The people of Malawi spread across the entire region to take up jobs as crafts person and as clerks. In the 1980s, the total population of the two districts in Karonga was investigated twice and their blood samples collected. All 44,150 blood samples were later tested for HIV. In the first round of investigations, none of the 1,041 samples collected in 1981 had HIV. By 1983, 12,979 specimens were tested and 11 cases were found of which four were men and seven women. By 1989, the number of HIV positive people rose to 189. Again the data revealed that majority of HIV positive were women particularly in the age group of 15–24 whereas men tended to be older. The situation in Africa made another aspect of the matter apparent and this was related to the gendered nature of the problem. In a military base in Butare, Rwanda, 29 of 33 female sex workers were found to be HIV positive in 1984. Twenty eight per cent of their clients had also contracted the virus. This particular vulnerability of the sex workers instead of promoting intervention programmes led to an exacerbation of the blame game. In a study on South Africa this particular vulnerability of the sex workers was taken up. These women had no say in the condom usage of their clients who were almost always reluctant to do so. It was said that if a woman got too insistent on this matter she might not get any clients. Also the unorganised nature of these women made them vulnerable. The study highlighted the divisive nature of poverty among the sex workers (Campbell 2003: 71–80). Not just the sex workers but also the general female population faced extreme vulnerability. Another research on Uganda revealed that women were largely dependent on their male partners for income. Men married much later than women. Before marriage they often had multiple partners and after marriage also they continued to do so. In one study it was stated that although the epidemic initially might be focused on sex workers, most often the client spread it to their regular partners (Iliffe 2006: 22). Although sex workers received a lot of negative attention, women in general remained outside the focus of general interest of analysis for quite some time and their vulnerability continued to be ignored, especially in the official discourses. Attention turned to other countries particularly in Asia much later but when it
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did the sheer number of positive cases rocked the world. First it was Thailand and then attention was turned to India. India was seen as a country where potential for damage was extremely high because of its sheer numbers. The State India has over 5 million people living with AIDS. According to figures presented by UNAIDS India has more HIV positive people than any other country. Although the Government of India (GOI) has disputed this figure it is undeniable that the number of HIV positive people is one of the largest in the world. The first known HIV positive case was detected among sex workers in Chennai in 1986. These sex workers were said to have had contact with ‘foreigners’. Immediately HIV was recognised as a foreign affliction. Calls to screen visitors were issued but that resulted in a lot of negative publicity. Soon the policy was abandoned and screening was concentrated on certain ‘high risk’ groups. In 1987, a National AIDS Control Programme was launched to coordinate national responses. Its activities covered surveillance, blood screening and health education. By the end of 1987, around 52,907 people had been tested, and around 135 people were found to be HIV positive, of which 14 had AIDS in full-blown proportions. Most of these initial cases had occurred through heterosexual sex, but at the end of the 1980s a rapid spread of HIV was observed among the people of Manipur, Mizoram and Nagaland—three northeastern states of India bordering Myanmar (Burma), particularly among those who were considered intravenous drug users. At the beginning of the 1990s, as infection rates continued to rise, responses were strengthened. In 1992 the government set up the National AIDS Control Organisation (NACO), to oversee the formulation of policies, prevention work and control programmes relating to HIV and AIDS. In the same year, the government launched a Strategic Plan for HIV prevention for a more scientific response to HIV. By the 1990s, HIV cases were reported from all states of India and it became clear that the virus had spread to the previously known ‘low risk’ groups such as housewives (Avert. org 2007).1 By 2005, GOI estimation was that 5.206 million people in India were HIV positive of whom 39 per cent were women. This meant that 0.91 per cent of Indians were HIV positive. In 2005 it was estimated
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that 1.7 million of HIV positive people also had sexually transmitted diseases; 10.16 per cent of injecting drug users (IDU) was HIV positive around the same time. West Bengal, Nagaland, Rajasthan and Bihar were marked as states where sex workers were most at risk (see Table 4.1). It is interesting to note that in the NACO reports the typologies of high-risk group remained the same even as late as in 2005. These groups consisted of IDUs, sexually transmitted disease (STD) groups, TB patients, female sex workers, MSM groups, migrant groups and so on. Also antenatal clinics were routinely kept under surveillance (NACO Report 2005).2 The states with highest prevalence of HIV were found to be Gujarat, Maharashtra, Tamil Nadu, Manipur and Nagaland. All these states can be defined as border states and so the Indian state without ever clearly stating it designated AIDS as a border concern or a disease from the outside. Although NACO estimation for 2005 portrayed that there is a visible trend towards increase in the number of females within the HIV positive group as Table 4.2 reflects, there were no efforts to monitor this trend and plan intervention strategies. There was one study done on female sex workers (FSW). Five thousand five hundred and seventy two respondents were questioned and the profile of this sample is thought to be reflecting certain realities of this group. Sixty one per cent of all the FSW were illiterate. Around a fifth had studied up to primary school level (21per cent) and 17 per cent had studied up to secondary school. Highest proportions TABLE 4.1
Prevalence of HIV Infection among Different Population Groups during 2005
Site Type ANC Population STD Population Female Sex Workers IDUs Men having Sex with Men (MSM) ANC Rural Tuberculosis (TB) Patients Migrant Group Eunuchs Total Source: NACO Report 2006.
Number of Number of Number Sites Persons Tested Positive % Positive 267 175 83 30 18 124 4 1 1 703
104,337 40,414 19,040 6,642 4,303 48,932 1,600 250 82 225,600
917 2,288 1,607 675 376 454 144 0 36 6,497
0.88 5.66 8.44 10.16 8.74 0.93 9.00 0.00 43.90
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Comparative HIV Estimates in Various Subpopulation Group 2000–05 (in million) Year Total Estimated HIV Infection Gender-wise Distribution Infected Males Infected Females
2000 3.86
2001 2002
2003
2004
2005
3.97
5.10
5.13
5.21
4.58
1.94 2.04 2.58 3.22 3.13 3.18 (60.2) (61.5) (68.14) (63.06) (61.1) (61.0) 1.24 1.24 1.21 1.89 2.00 2.03 (39.8) (938.5) (31.56) (36.94) (38.9) (39.0)
Source: NACO Report 2006.
of illiterates were observed in Uttar Pradesh (90 per cent), Bihar (84 per cent), Maharashtra (83 per cent), Madhya Pradesh (81 per cent), Assam (79 per cent) and West Bengal (78 per cent). Interestingly all these were brothel-based FSW except in Assam (NACO 2001).3 The study concluded that brothel-based FSWs had greater propensity to use condoms than non-brothel based FSW. The study portrayed that the situation of non-brothel FSW was clearly more vulnerable than those in a brothel. That the effects of AIDS will soon be catastrophic for large groups of people was apparent to all observers. NACO began conducting studies on the economic effects of AIDS on India. These studies portray that AIDS has had impact on individual, sectoral and national levels, at least economically. They reflect that HIV/AIDS has adverse effect on population growth rate and on skilled labour supply. Workers with HIV were expected to have lower labour inputs. In sectoral terms, AIDS is supposed to hit hardest unskilled labour intensive sectors such as tourism and small manufacturers. Moreover, industrial GDP is predicted to decline as a result of the spread of AIDS thereby adversely affecting the national GDP. Since people were hardest hit by AIDS during their productive years the family income was sure to decline. It is also said that AIDS will increase the demand for child labour due to the scarcity within the labour force. Keeping in mind that this is also the age of globalisation the vulnerable sectors faced increasing marginalisation as a result of HIV/AIDS. There is a growing concern that AIDS will particularly affect women’s economic growth from international organisations such as the UNDP but as yet no interventions are planned about that by the GOI (NACO and UNDP Report 2005).
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There is a growing concern within the official discourse about newer groups becoming vulnerable to HIV/AIDS. Recently there have been studies on planning interventions beyond high-risk target groups. One such NACP study focuses on the vulnerability of the tribal people to HIV/AIDS. India has the second largest concentration of tribal people in the world. According to the 2001 Census, 8.2 per cent of Indian population is composed of indigenous people, and that puts their number at 84.3 million. This study lists two major causes for greater vulnerability of the tribal people to HIV. The lack of awareness and knowledge about HIV and sexually transmitted infections (STIs) was considered one of the main reasons for increasing vulnerability of the tribal people. The other related to what was termed as the ‘widely varying sexual practices (high level of premarital and extramarital sexual practices) and contact with external high risk population make them vulnerable’ (AC Nielsen, ORG–Marg Report).4 Once again the myth of external risk has come to haunt vulnerable groups of people. The report on the tribal people recognises that tribals are not a homogenous lot. Tribals are particularly vulnerable as they have poor access to health services. Also, they suffer from high levels of poverty and ignorance. The awareness level of tribal women regarding AIDS is particularly low. According to the report, only 17 per cent of tribal women have heard of the disease. What makes the situation even more problematic is that there is hardly any data on the prevalence of HIV among tribal population. The report cited Verrier Elvin’s publication of 1964 to emphasise the sexual freedom enjoyed by the tribal people. But Elvin spoke only of the Muria tribe and their ghotuls or mixed dormitories, which are already extinct. The report also stated that the vulnerability of tribal people is increased due to their mingling with the non-tribals, who might exploit them. But such intermingling is almost inevitable due to out migration of these people. Whether their interactions with non-tribals are a negative influence in their lives or not seems to be subjects of future research. Such intermingling cannot automatically be castigated as bad and therefore many of the assumptions of the report seem hastily drawn. Often official response internationally has more awareness of the gender dimension of HIV/AIDS. Most international reports recognise the specific vulnerability of women where HIV is concerned. One such UNAIDS report states ‘poverty, social marginalisation, gender inequality and discrimination create conditions that increase
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vulnerability to HIV’ (UNAIDS Report 2006: 69).5 Most of these attributes are present in women’s lives in the developing world. The other factor that is highlighted by UNAIDS is the correlation of AIDS with the presence of conflict. In this regard the report talks about the vulnerability of the members of the armed forces of both sides to AIDS. It also discusses the vulnerability of people who are caught up in conflict. The report, in this regard, mentions the vulnerability of refugee groups to AIDS and the paucity of programmes for this group. According to United Nations High Commissioner for Refugees (UNHCR) only 65 per cent of national programmes on AIDS mentioned refugees and only 43 per cent called for specific interventions. India has done neither. The official response of the GOI reflects that in its efforts to separate high-risk groups from the general population it has increased the marginalisation of these groups whereby they are increasingly victims of discrimination. Also their inability to incorporate gender dimension into their programmes have proved fatal for large number of women. Even though their own data reflects that growing numbers of women are affected by HIV/AIDS, till date only lip service is provided to this factor. In its efforts to find out people who are potentially at risk the government policies have once again focused on the indigenous people who are easily identified and a marginal group. Also by insisting upon the ‘foreign routes’ of AIDS and by focusing on marginal groups the GOI has contributed to the myth of deviance of AIDS and thereby castigating HIV victims as a deviant and disorderly population. That has contributed to increasing stigma and discrimination that these people have faced. The Media The media perceptions of HIV/AIDS have further contributed to this myth of deviance. A study of newspaper reports from northeast and eastern India reveals the media perceptions of AIDS in this region. In most newspaper report of the region the spread of HIV is considered as a result of porous borders and the carriers are considered as women who cross those borders. If one goes through newspaper reportage of the phenomena one can find clear evidence of such an attitude. A report of North East Reporter, 25 February 2004, clarifies the issue by stating:
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Assam may soon turn out to be AIDS capital of the Northeast, if immediate steps are not taken to check the growing menace of flesh trade, especially by commercial sex workers who have migrated from Bangladesh. These immigrant sex workers have posed a serious threat to the health scenario of Assam, causing an alarming rise in the number of HIV positive cases. A survey conducted by the state AIDS control society indicates that there is an alarming rise in the number of HIV positive cases. Assam has a total of 334 registered patients out of which 90 are full blown AIDS cases. Official sources said that 70 per cent of the victims had sexual contacts with prostitutes from the migrant population. Sexual transmission is the main cause in more than three-fourths of the cases. 71.08 per cent of the patients are reported to have contacted HIV through sexual contacts, out of which 70 per cent of the individuals had regular sex with these immigrant prostitutes.
This report addressed the two most important issues inherent in the popular threat perceptions related to AIDS, women and borders. These issues are: (a) threat of uncontrolled sexuality of women and (b) women with different sexual mores crossing porous borders leading to a threat to male health and control over the nation. The corrupting influence is then quite easily designated as a foreign influence and women’s bodies are considered as the contaminated vehicles of bringing the threat home. AIDS has therefore become an issue of control over women’s sexuality and it has thrown up new questions of justice in India. The newspaper reports from northeast and eastern India can be classified into three broad groups. There is one group of news/ speculations that deals with responsibility factor. These endeavour to establish who is responsible for the problem. The second group of news is on the situation of the victims. These are what might be known as human-interest news. The third group deals with special occasions, seminars and workshops. Apart from these there are feature articles, which might encompass all the three groups or might be on scientific explanations and are often impersonal in nature. The first two groups are much more sensational. In the first group there is an effort to pin the blame on both the porous border and the resultant migrating hordes or on women’s sexuality. A sample survey of some of the news items appearing in these newspapers between 2003 and 2007 will bear this out.
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In most of northeast India today there is tremendous antipathy towards migrants, particularly from Bangladesh and Myanmar. In most newspapers of northeast India almost every day there is news that highlights how migration in Northeast is a security hazard. Typically there are news, for example in the Tripura Observer, 21 August 2003,6 on how Bangladeshi dacoits have penetrated Tripura, ‘clad in lungi and armed with country made guns raided the houses.’ Other news items include information on how efforts are made to evict refugees. One such news item, reported in Shillong Times, 8 August 2003,7 quoted the Home Minister of Mizoram stating that: We guess there could be at least 30,000 Myanmar nationals illegally staying in Mizoram. Anybody found staying illegally would be deported or their applications for asylum might be taken up. The decision to intensify a drive to detect illegal settlers from neighbouring Myanmar follows an anti-foreigners uprising by local groups in the hill state of Mizoram.
There are other news items showing how migrations have led to the increase of police or security forces in the borders. They report on how: Mizoram government has decided to deploy more police personnel at the Mizoram-Myanmar border hamlet of Zokhawthar even as mass exodus of the Myanmarese national continued and 4,110 people including 2,074 women crossed the border river Tiau till 3 pm Monday … Police said that one additional section of second battalion of Indian Reserve Police would soon be deployed at border to check illegal infiltration from Myanmar (Assam Tribune, 14 August 2003).8
The border area is looked upon as a site of pervasive threats. If it is not the threat of security, migration or terrorism then there is AIDS, a seemingly insurmountable threat to collective health. And the site of that threat remains the border, whether it is with Bangladesh or with Myanmar. One newspaper report from eastern India in The Statesman, 15 October 2006,9 encapsulates this threat well. In it is stated: AIDS, the most feared of modern day diseases, is stealthily spreading from villages along the Indo-Bangladesh border to other parts of the country. Its progress has so far been unhindered, thanks to the large migrant population … West Bengal has the longest border-sharing zone with Bangladesh, and there is a constant flow of infiltrators from Bangladesh to West Bengal.
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Attached to this threat of migration is the threat of AIDS. One workshop on AIDS received special coverage in the Nagaland Post, 28 March 2004,10 because it was a workshop designed for migrant workers. The participants were ‘35 migrant workers, most of who hailed from Bihar and Bangladesh.’ The attendance of the workers was meant to seem almost as an admission of guilt. There are other news items that blame the porous border instead of only the migrants for the growing number of AIDS cases in northeast India. One such coverage in The Shillong Times, 2 July 2004,11 stated that: ‘The northeast, which borders the heroin producing “golden triangle” of Thailand, Laos and Myanmar, has a major problem with intravenous drug use and that is the most common cause for the spread of AIDS in the region.’ In another report on Manipur, a state with one of the highest prevalence of HIV positive people it was stated that: … for this high incidence of AIDS in Manipur, the rampant use of intravenous drugs is cited as a major cause—a practice not so widespread elsewhere in the country. Manipur’s proximity to the notorious ‘Golden Triangle’ of South East Asia, a major narcotics centre, has led to the easy availability of intravenous drugs among the youth. (Assam Tribune, 24 April 2004)12
Another report—published in Meghalaya, 1 December 200513—on the same lines states the following: The first group that spread dread disease like HIV/AIDS includes the injecting drug users. As this region is nearer to the Golden Triangle, drug trafficking is continuously going on through Manipur, Nagaland and Mizoram. The young people in these states have easy access to injecting drugs.
The second group includes the heterosexual promiscuity mainly through travellers and migrants. The main purpose of the news becomes clear a few sentences down the line when the commentator states that, ‘problem arises from the fact that the society has to be made responsible for the problem which has evolved due to its own act of omission and/or commission.’ It is this question of responsibility that concerns the media in northeast India and often there is an effort to place responsibility on marginal groups such as the migrants, IDUs or sex workers who are easy targets. That the female sex workers are one of easiest target is clear from a number of media report. There is a plethora of reports that clearly
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blames female sex workers for the spread of HIV/AIDS in Northeast India. In one such report in the Hindustan Times, 13 May 2005,14 it was stated that: … flesh trade is fast spreading its net in Arunachal Pradesh. So are HIV positive cases. The impact of this double trend has made people of the state to sit up .… The mission to check sex trade—which is more prevalent in Itanagar—was triggered by the detection of HIV virus in 38 blood samples out of 22,000 during a survey.… With flesh trade expanding its base the situation can only become worse.
Almost every month there are such reports in the media of East and Northeast. A similar report stated: An alarming rise to the HIV infected patients in Barak Valley of South Assam and a spurt in prostitution in Silchar town have set the alarm bells ringing. Several NGOs engaged in AIDS awareness campaigns in the region said the spread of the disease in Cachar district was highly alarming because it never has been an HIV prone area. However the district recorded more than a thousand HIV positive cases in the past couple of years. (Times of India, 1 October 2005)15
The sex workers are one of the most disempowered groups who are easy targets for anyone trying to ascribe blame. One report in the North East Reporter, 12 April 2004,16 on interventions stated, ‘special awareness programme should be undertaken among the women, especially those engaged in sex trade.’ FSW are already deviant figures and by casting blame on their presence the media is able to maintain the myth that AIDS is a disease of the deviant. There is little understanding that the groups that are seen as threatening are all marginalised groups. This is a common phenomenon the world over. As one expert would have us believe HIV has the potential of becoming an explosive epidemic in places where there are highly mobile populations and gender inequality (Barnett and Whiteside 2002). Migrant workers or sex workers are easy target groups. It is easy to spread a facile belief that if such groups can be controlled AIDS can be harnessed. But there is little effort to either find out or addresses the efficacy of such arguments. In recent years there is a new threat perception arising out of the flesh trade. This relates to the security forces and their vulnerability to AIDS. Hitherto these security forces were considered invincible and
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they were the instrument for controlling malaise of the borders but now they are themselves falling prey to AIDS. From different parts of Northeast there is a recurring concern that AIDS is the most important threat to security as it is affecting security forces themselves. From Tripura, there was news that cases of AIDS are on the rise there among the forces. It was stated that out of the 79 AIDS patients 43 are security force jawans. In a more recent report in The Times of India, 18 November 2006,17 it was the Central Reserve Police Force (CRPF) that was the cause for concern. The report stated that: ‘Forty CRPF personnel posted in Manipur and Nagaland have tested HIV positive, according to findings of a voluntary testing drive that the paramilitary force conducted among 11,000 of its men recently.’ Worse still there are reports that ‘The Assam Rifles has received threats from militant organisations of this region that they would let loose HIV infected women to spread the disease among jawans posted in Meghalaya, Manipur, Nagaland and Tripura’ (Nagaland Post, 25 September 2005).18 So it seems that AIDS is winning the battle against security forces. Hence, the fear is centring more on unreported AIDS cases. There is a witch-hunt for AIDS patient. At the receiving end of this witch-hunt are gay men, women sex workers or migrant workers.19 Even though the more knowledgeable people are aware that woman with single partners are getting infected in large numbers and from urban areas HIV is spreading to rural areas. Yet still for interventions the easy targets are sought out. However, what remains constant is the perception of AIDS as a phenomenon of the borders, be they geographical borders or people in the borders of society. The Target At different times different groups become the target of marginalisation as is apparent from the tale of HIV/AIDS. For example in Thailand today it is the men who enter into sexual relationships with other men who are the targets of much of anti-HIV campaigns. It is said that in Bangkok, HIV prevalence has risen steeply among MSM—from 17 per cent in 2003 to 28 per cent in 2005. Among those 22 years of age or younger, prevalence rose from 13 per cent to 22 per cent in the same period, which indicates high underlying HIV incidence. Infection levels were 15 per cent in Chiang Mai and 5.5 per cent in Phuket. Among male sex workers, prevalence ranged
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from 11 per cent in Chiang Mai, 14 per cent in Phuket and 19 per cent in Bangkok—implying low rates of consistent condom use during paid sex (UNAIDS Report 2006). In much of northeast India for most part, as previous evidences suggests, intravenous drug users were in the focus of most anti-HIV campaigns. However, the one group that have perpetually faced the greatest condemnation in all societies are sex workers. Any work on HIV/AIDS remains incomplete without focusing on the situation of sex workers. As a group that is particularly at risk to HIV transmission yet with limited access to public health facilities the sex workers stand almost alone. According to NACO estimation infection among sex workers might be decreasing in India. Among FSW the infection rate was 10.3 per cent in 2003, 9.43 per cent in 2004 and 8.44 per cent in 2005 (NACO Report 2006: 5; see Table 4.3). TABLE 4.3
Estimation of State-wise Percentage of Positive FSW State Andhra Pradesh Maharashtra Karnataka Manipur Mizoram Nagaland Gujarat West Bengal Tamil Nadu
% Positive 2004 16.97 41.69 21.60 12.40 13.69 4.44 9.20 4.11 4.00
% Positive 2005 12.97 23.62 18.39 11.40 14.00 10.80 8.13 6.80 5.49
Source: NACO Report 2006.
Yet there are three states that have shown proclivity of increasing infection of FSW and these happen to be Nagaland, West Bengal and Tamil Nadu. We will discuss the situation of sex workers in Kolkata, the most important city in West Bengal, in greater details later. But for now it will suffice to say that sex workers in India are in a perpetual state of vulnerability. Their inability to control the risk of infection is fostered by a double bind. According to one study ‘sex workers are more vulnerable to HIV infection than the general population because they participate in activities that expose them to a higher risk, and because they tend to be marginalised and ostracised from the rest of the society’ (Medhini et al. 2007: 710).
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Indian history reflects that sex workers have always been considered as vectors of infection and disease. Hence, targeting of sex workers in anti-HIV campaigns is nothing new but the virulence with which it is persistently pursued makes it exceptional. Although the Indian Constitution provides some protection to sex workers through its fundamental rights particularly Articles 14 to 21 wherein equality of sexes and non-discrimination of sexes is also stated yet in ground zero the situation is very different. This is portrayed in many cases of which one is the Madhukar Narayan Mardikar (1991) case where a woman’s testimony, who was sexually assaulted by a police officer, was considered unreliable because she was having an extramarital affair and so was deemed dangerous by the High Court. Although the Supreme Court overturned this decision and her evidence was accepted, the woman was marked as being of ‘easy virtue’. This portrays the gendered attitude of the Indian courts. In such a situation attitude to sex workers would at best be paternalistic and at worst criminal. Even in the best judgements sex workers never escape unscathed. An example of an enlightened decision that resulted in further complication for women sex workers is the VC Public at Large vs The State of Maharashtra and Others (1997). The Bombay High Court acting on newspaper reports ordered the state to rescue women who were kept in brothels in illegal confinement. This was an enlightened decision but the raids led to a discovery of a high level of disease of these women. Although the high level of HIV infection and the sexual slavery shocked the nation it also led to many sex workers being thrown out of brothels without any support. In the series of raids that were carried out it was revealed 70 per cent of the rescued girls were HIV positive and the remaining 30 per cent suffered from other venereal diseases (Medhini et al. 2007: 736–37). This portrays the vulnerability of women in sexual bondage. Yet courts have often marginalised these women in their decision. In one such case, Sahyog Mahila Mandal and Another vs State of Gujarat (2004), the Court refused to acknowledge the right to prostitution as a fundamental right for women and rejected the contention that it should in any way help women to pursue prostitution. It in fact contended that prostitutes should not even be allowed to live in notified areas or areas which were otherwise sacred. Such attitude of the courts has often made sex workers more vulnerable and such vulnerabilities have increased their risk of infection and even HIV. For a closer look we now turn to the situation of sex workers in Kolkata.
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TARGET: SEX WORKERS
IN
KOLKATA
From a macro-level discussion on the entire East and Northeast I will now turn to sex workers of Kolkata. There are a number of reasons why I will focus special attention on the sex workers of Kolkata. Kolkata is the largest metropolis in the East and Northeast. The city is close to the Bengal–Bangladesh border and I argue that the sex workers herein form the borders of society. They are organised enough to be unionised and yet their agency is limited. West Bengal as such was not considered as a high-risk state. However, among the sex workers HIV is growing alarmingly and it is over 6.8 per cent. West Bengal is among four high-risk states and within the state the greatest concentration of sex workers is in the city of Kolkata. In West Bengal and in Kolkata prevalence is extremely high especially among the flying sex workers. As one of its results Kolkata itself has become a high prevalence area. Among other areas of high prevalence are the neighbouring districts of Howrah, Hooghly and the two districts of 24 Parganas. In projects undertaken by the Government of West Bengal it was revealed that while 93.3 per cent of Commercial Sex Workers (CSW) were aware that one should always use condoms, only 85.3 per cent truckers and 80.5 per cent migrant labourers were equally aware (Shah n.d.: 47). Yet very few of these women could use their knowledge or agency in this matter. A study of the situation of CSW in Kolkata reveals this truth. By narrating case histories of a few CSW who are HIV positive it is possible to gauge the extent of their vulnerability. These case histories were collected in a study undertaken in Kolkata between August and December 2007 in and around Tollygunge brothel area.20 Case A is of a woman who was trafficked from Bangladesh by her own husband. She was from an extremely poor family. She worked as a sex worker in Khidderpur, Sonagachi and Monoharpukur road. In Monoharpukur she was gang raped by miscreants and her condition was so critical that she had to be hospitalised for 10 days. In the hospital she tested positive but kept it a secret. However, three years after, while she was in a Tollygunge brothel, she underwent another test. Again she was told of her HIV status and received counselling. This time she was brought under medical care. The person she is living with now takes care of her and to that extent she is lucky. Also the government
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gives her free medical aid. To eke out a living however she still has to take three to four customers a day and often faces substance abuse. Her customers often want to have unprotected sex. Although now she is taking protection she is constantly living with the dread of death at the age of 40. Case B is that of a woman from Midnapore district. She was married at the age of 13 but her husband refused to keep her with him, as she was unable to have sex. She came to Kolkata to work as a maid where a 72 year old man abused her. Later she was sold by her friend and worked as chukrikhata, which is one of the worst forms of sexual slavery where young girls are forced to take multiple partners and usually without any protection. She suffered multiple injuries including vaginal injury. At present she is 45 years of age and living in the Tollygunge brothel. She tested HIV positive. She is suffering from severe malnutrition and TB. Among sex workers it is common to find HIV positive people suffering from TB. Her partner takes away all her money. Even though she is suffering from ill health, she continues to have sex without protection as she was ageing and often without clients. Case C is that of a flying sex worker who is at present 40 years of age. She got married at the age of 19. After marriage she had a son but soon her husband died. She started working as an ayah in a private nursing home. While in the nursing home she was sexually abused by the owner. She left that job and started supplying tea and snacks in an office. Here too the manager sexually assaulted her. Then she started working as a labourer in a building site. Here she was clearly told that if she refused to sexually serve the labour contractor she would not get further work. At this point she decided to become a sex worker. In her interview, she clarifies that she was not forced to join the trade but she decided to do it because she felt that in the lower echelons a woman’s body is constantly abused in the labour market so why not use her body to serve herself ? In sex work, she suffered constant substance abuse and because she is a flying sex worker she is extremely insecure. Miscreants often abuse her. What is even more dangerous is that she said that she has been consistently abused by petty policemen who forced her to engage in sexual intercourse without protection. Her blood status is reactive but she feels that she has no alternative other than sex work. And so even after gang rape and abuse by the police she continues it without recourse to any other profession.
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These cases portray the extreme vulnerability faced by women sex workers. They start their lives at great disadvantage because they are both women and poor. Any adversity at very early stages in life results in their gravitation towards the sex market. Once in the sex market their vulnerability increases by leaps and bounds. They face constant abuse of one kind or another and accept it as part of their lot. They are often abused by either miscreants or police. These people force them into sexual relationship without any protection. As young girls they are sold many times because the myth that unprotected sex with virgins cures diseases still holds strong in people’s mind. This in itself makes them vulnerable to HIV. When they grow older, they become even more vulnerable to the vagaries of clients and hence, more vulnerable to HIV. Unlike in many brothels of Kolkata most sex workers are not unionised. Even when they are, their disadvantages remain because it is their clients who dictate terms notwithstanding the fact that HIV attacks both the perpetrators and the victims alike. This is portrayed by our next case. This is the case of a taxi driver who frequents the Tollygunge brothel. He said he was working as a taxi driver for the last 15 years. He has multiple partners. In the Tollygunge brothel he has a live-in partner. He also has a wife who lives with his children in Bihar. He has a history of homosexual relationships. He is both dominating and violent. His partner in Tollygunge reported that he often forces her into intercourse. He often uses sharp instruments such as blades, and so forth, on his partner in the brothel. He is also a habitual substance abuser and is a drug user. He has the habit of using intravenous drugs. He never uses any protection and is suffering from STD. Even after all of this, his partner in the Tollygunge brothel has not left him. His partner told the interviewer that even though he inflicts pain on her body, she does not think of leaving him because getting a babu affords some protection and it is very difficult to have a live-in babu.21 The last case portrays the insecurity of sex workers and their vulnerabilities even further. Such social vulnerabilities make them more susceptible to HIV. The profiles of the sex workers interviewed portray that all of them cater to three to four clients, if not more, everyday. They are mostly separated but some live with regular babus and husbands. They often have children and frequently suffer
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from extreme anxieties about their children. They all have histories of sexual abuse and have suffered substance abuse. Very seldom do they have caring partners or children. Yet they often maintain these same people and feel responsible for them. It is interesting to note that their knowledge about HIV is not very poor. This is reflected by the findings of a survey undertaken by the West Bengal State AIDS Prevention and Control Society (WBSAPCS). The survey by the WBSAPCS shows that sex workers are largely not very ill informed about the dangers of HIV. About 97.4 per cent of sex workers participating in the survey had heard of STD and 56.3 per cent could mention at least three modes of HIV transmission. About 93.3 per cent CSWs mentioned that one should always use condoms and over 96 per cent said that STD treatment should be administered early. Only 17.7 per cent of CSWs reported that you could get HIV if you shared clothes and food with an HIV infected person. Over 88 per cent CSWs reported that condoms are used to prevent STD and HIV. However, they do believe in certain myths and misconceptions. Over 52 per cent believe in one such myth that says that a person with one sexual partner cannot get HIV. Also, 47.4 per cent believe that people with HIV should be deprived of their property. Compared to these numbers there is another that is both startling and needs analysis. More than 66 per cent of the CSW respondents who have contracted HIV reported that they recently had vaginal penetrative sex (Shah n.d: 47–49). From the discussion above it is apparent that sex workers in Kolkata are progressively becoming aware of the dangers of HIV. But it is their structural weakness that makes them so vulnerable to the disease. In their profession, what matters is the client’s wishes. Their clients are overwhelmingly male who are always more powerful vis-à-vis decisionmaking about condom usage. The sex workers inhabit social borders and that leads to their weakness in Kolkata. Thus in the last elections 40 sex workers from one brothel in Kolkata were not allowed to vote as they could not prove their citizenship even though they have been living in those brothels for years. Their social positioning relegates them in a state of not belonging. From people inhabiting borders of society we will now turn to those in the geographical borders and see if that increases their vulnerability.
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THE VULNERABLE: FOCUS NAGALAND22 We will now turn to a study of the situation of HIV in Nagaland. There are a number of reasons for focusing this micro level attention on Nagaland. Nagaland is one of the four most HIV prone states in India. In fact, in the last two years, Nagaland has seen quite a rise in the number of its HIV positive people. From the sixth most HIV prone state it has become the fourth. Among the high-risk groups, it has a huge proportion of IDUs and FSWs. Yet there are hardly any studies conducted in Nagaland. Although the Nagas of Manipur were reviewed in the recent NACO study on social assessment of the tribal people, the people of Nagaland were generally ignored. Also, Nagaland is an archetypal border state. Physically it is situated on the Indo-Myanmar border. In the west it shares a border with Assam. In Nagaland there is both a separatist and a fratricidal conflict going on for a long time. In fact this conflict pre-dates Indian independence. It is remarkable that the two of the most AIDS prone states in northeast India, Manipur and Nagaland are both facing state versus community conflict. Due to my previous researches I have some familiarity with the state of Nagaland. Also as Nagaland faces both an insecure border on both sides and hosts a very large number of HIV positive people I made this effort to analyse the politics of marginality and AIDS in the context of Nagaland. In Nagaland one of the most AIDS prevalent district is Dimapur. Dimapur is also known as the commercial capital of the state. According to a report issued by the Dimapur AIDS Control Committee and reported in Nagaland Post, 1 December 2005, the city ‘has a high floating population.’ The report says that between July 2000 and July 2005, 295 cases of clinical AIDS were detected in the city. The majority of these cases were infected through sexual transmission, followed by injecting drug use and then from mother to child. The report states that: ‘Contrary to the popular belief that HIV infects only the immoral people, AIDS cases have been reported amongst all sections of the society including church leaders, politicians, healthcare providers, housewives, children and students.’ The report called for reduction of vulnerability of high-risk groups such as women, young people and children.23
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There are a number of other research works done on the situation of HIV in Dimapur. In one such survey undertaken by the Prodigal’s Home, an NGO responsible for many of the baseline research and attached to OXFAM, it is reported that a majority of the sex workers came from out of the state. Among the sex workers interviewed only 26.5 per cent were Christians and 45.6 per cent were Muslims. It is interesting to note that over 60 per cent of the sex workers interviewed were illiterate while another 17.6 per cent studied until the primary level. Over 48 per cent of the sex workers were married and living with their spouse and 30 per cent were divorced. The sex workers were considered as the most vulnerable community. A majority of them were between 15 to 24 years of age. An overwhelming per cent (73 per cent) of these women had no savings and they were habitually abused and assaulted by ‘goondas, customers, insurgents, security personnel mainly for money. They are beaten up for being a sex worker and get assaults from the customers, if they decline to conform to their sexual fantasies’ (Report by Prodigal’s Home: 9).24 The study concluded that although a majority of the sex workers wanted to use condoms, 33.3 per cent did not push the matter for fear of losing the customer, or customer offering more money, or for coercion or for emotional attachment (Report by Prodigal’s Home: 22). The study concludes that sex workers of Dimapur were among the high-risk groups because of their vulnerability and the study calls for further research on women’s vulnerability and gender insensitivity in society. Prodigal’s Home is responsible for undertaking ethnic communitywise baseline surveys. They have studied people from such communities as the Tibetans as they are known as a migrant community. Although this community was not a high-risk community in terms of numbers but as frequent travel was considered a reason for propensity to HIV this group was surveyed. The other reason why this group was brought within the purview of such a research was that the males in Dimapur doubled the number of females; also the singles outnumbered the married. The results of the survey showed that most of the Tibetans migrated to Nagaland in the 1990s. The group as a whole felt uncomfortable in giving specific answers. It was found out that women between the age of 25 and 34 had less knowledge about how to prevent STD. In fact women in general had less knowledge than the men. Both women and men of all age group were more willing to use condoms
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than having single partners. The community as a whole had heard of HIV and within the community the age group of 15 to 24 thought the route for transmission was sexual practices. However, the age group between 25 and 34 blamed contaminated syringes for HIV. The group as a whole thought of AIDS as a social problem and had negative attitude to HIV. For this reason they were more prone to going to quacks rather than doctors. The researchers recommended, apart from condom promotion and more information on the issue, that ‘health seeking behaviour should be stressed among females’ (Report by Prodigal’s Home December 2002–February 2003: 28).25 In the year 2005 there was a sudden rise in the number of HIV/ AIDS patients in Dimapur alone. Between January to June 2005 there were 179 new HIV/AIDS cases, that is. more than one every day according to the figures given by District AIDS Control Society of Dimapur. According to newspaper report in the Nagaland Post, 25 July 2005,26 there was one trend that was very noticeable. It was said that: ‘The number of married women infected with HIV has also shown a rise. So also the number of children infected with HIV.’ In fact from the early days of this millennium this is the most glaring trend in Nagaland. ‘Previously more commonly related to injecting drug use, the HIV/AIDS epidemic in Nagaland is swinging strongly towards the sexual transmission mode’ (Nagaland Post, 7 February 2005).27 Apart from Dimapur there are other districts in Nagaland that are fast becoming vulnerable. In 2005 NACO listed Kohima, Mon, Phek, Tuensang, Wokha and Zunheboto as the other high-risk areas in Nagaland. Nagaland State AIDS Control Society (NSAC) initiated a research on mapping vulnerability of different districts in Nagaland. It was found that Zunheboto has a high STD record, Wokha had high percentage of intravenous drug users, Wokha, Zunheboto and Tuensang has a high per cent of people who did not use condoms. Only Kohima reported enough condom users. It was found out that among the men in Dimapur, Phek and Zunheboto district over one-fourth male adults had not heard of HIV. ‘Cent per cent of the women from Wokha in Wokha District, Wakching and Tobu in Mon District followed closely by Meluri (90.9 per cent) in Phek Districts have not heard of HIV’ (Report by Prodigal’s Home 2002–03: 8).28 More males preferred to have sex with casual partners
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and others such as sex workers. Among the women only in Wokha District they reported to have a preference for other men than their spouses. The report mentioned that a dominant majority of people (82.3 per cent) believed that sex workers were mainly responsible for the spread of HIV. This is crucial because it portrays the extent of stigmatisation of sex workers. Most of the respondents (59.6 per cent) see HIV as mainly a problem associated with ‘immoral’ people. Also a majority (60.5 per cent) of the respondents did not know about premarital relationships in their community and one-fifth maintained that there is no premarital relationship in the region. However, a majority of the respondents in the study noted that they preferred sex partners other than their usual partners irrespective of their marital status. ‘This points to the prevalence of pre and extramarital relations in the study area’ (Report by Prodigal’s Home 2002–03: 33). The district of Kohima is considered a high-risk area as it has a high percentage of HIV positive people. Also most sexually active people in the city have a risky lifestyle. Often they have casual relationships and have penetrative sex with casual partners. In Kohima a majority of the men (76.9 per cent) and women (57.1 per cent) reported that they use condoms regularly. Many IVUs inject more than once a day and although most people do not share syringes some, however, still do. Often people do not use clean syringes while injecting (Report by Prodigal’s Home 2002–03: 33). In Kohima there is one governmentaided hospice that is funded by the NSACS and administered by the Naga Mother’s Association (NMA) a women’s peace and human rights group. It is a 10-bed facility for HIV positive patients. During the year 2005 and 2006 there were 30 admissions of which 19 were discharged, two had a relapse and nine continued their therapy. Although the hospice is for terminally ill people of the discharged it is said that they are all living positively (Report of NMA HIV/AIDS Care Hospice). By June 2007 there were 26 persons admitted to the hospice. A survey of these admissions might give us some idea about the emerging trends. Of the 26 admissions there were 12 male and 13 female patients. One person’s gender could not be determined from these forms. This reflected that the gender gap in the HIV graph was reducing. Since the numbers of female HIV people were less than the male (see Table 4.3) it can be surmised that there was a greater unwillingness to
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keep HIV positive women at home. In terms of education all women admitted to the hospice were educated up to the primary school level. In terms of education, there were more variety in the answers given by the men. Seven of these men were educated until the secondary level, two were graduates and two were educated up to primary level. One man did not receive any education at all. All men were within the age group of 25–35. The women were largely younger than the men. Most of them were in their 20s, two were 34 years of age and one 40. All men, barring one, reported that they had multiple sexual partners. As for the women, eight replied that they had multiple partners and three had single partners. Two respondents were too young to have any partners. Among the women a majority was married, two were separated and two were single. Among the men, barring one all had multiple partners. Only three were married, one was separated and the rest were single within this group. Seven men informed that they had contacted the disease through sexual contact and four informed that it was through intravenous drugs. All the adult women informed that they had contracted the disease through sexual contact. The two children (8 and 10 years) who admitted were both girls. All the men and women who were admitted claimed that they were heterosexual in their orientation.29 A study of patients in the AIDS hospice in Kohima throws up certain hypothesis. It shows that in the context of Nagaland, people were getting afflicted with AIDS at a fairly young age or within their productive age. Women were within their childbearing age, which raises the disturbing scenario of the effect of AIDS on demography. It was also clear that more and more people were becoming vulnerable to sexual contact. In the case of women this was even more significant because a few of them reported that they had single partners and so it was glaringly obvious that even with single partners women were contracting AIDS. Women’s greater vulnerability is reflected by the fact that women were less educated than men. Another important fact emerging from this sample group is that marriage did not necessarily mean monogamous relationship. This is not exceptional in the context of urban experiences and a study conducted among middle-class working women in Delhi metropolis in the 1950s and 1960s shows that attitudes towards extramarital relationships underwent identifiable changes towards permissiveness by the 1960s (Kapur 1973). Therefore, the situation in Nagaland is not extraordinary.
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In the Focused Group Discussions (FGDs) most people felt that IVU was no longer the primary threat. They were convinced that it was through sexual contact that AIDS cases were multiplying. People also felt that sex workers alone could not be considered responsible. Keeping the context of state versus community conflict in mind a lot of people felt that poor young widows, without any income were becoming bootleggers. During my field survey I was told by a number of people that there are some 50,000 bootleggers in Nagaland. In the context of prohibition in Nagaland these women are looked upon as immoral. These bootleggers were considered as people who were sexually available. There was a fear that these bootleggers were moonlighting as prostitutes. They were looked upon as contaminating influence on society. Because of their situation they are marked as deviants in society. Many people are now considering the fact that sex with these bootleggers can be a cause for increasing numbers of HIV positive people and people are therefore ready to condemn them. However, very few people ask the question as to what choices these women have.30 For the Naga people it is not the border in the east that is insecure. It is the Indian state that finds this border insecure. For the Nagas the case is totally different as they share kinship networks with people across the border. In fact, I was told informally by a number of respondents that unless the state is willing to work together on both sides of the border the situation cannot be controlled. That such an idea might have some merit can be corroborated from newspaper reports of another border area. One such newspaper report states that ‘Myanmarese citizens residing along the Indo-Myanmar border areas and other Indian States specially in Manipur have sought help for the treatment of drug addicts’ (Assam Tribune, 21 May 2006).31 The same report urges the GOI to make available Anti Retroviral Therapy (ART) and some other medicines and mechanisms to HIV patients from across the border. For the Naga people the border in the west seem more problematic. That the Assam–Nagaland border has become a problem is also borne out by newspaper reports from Assam and Nagaland. One such report in the Assam Tribune, 3 July 2005,32 states: ‘Local people have alleged that extremists outfit, aided by international groups, have set up bases in the border areas from where they are running the illegal trade. Such antisocial activities have made life miserable for people living in the border town.’ The conflict in Karbi Anglong can be seen as a conflict
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resulting problems in this border. In Nagaland when one talks about incursions of foreigners or alien people one thinks of this border. A respondent told me from the Baptist Church about incursions from across the border. By incursions she meant the entry of people from Assam and Bangladesh and not from Myanmar.33 That there might be truth in it is borne out by the survey done by Prodigal’s Home that shows that FSW in Dimapur are largely Muslims and Hindus. But what is scarier is the growing number of HIVs among traditionally low risk groups.
CONCLUSION My work on the politics of AIDS in the east and northeast of India does not present a pretty picture. It reflects that marginal groups such as women, children, migrants, sex workers and the like, become more marginalised. Borders as zones of conflict impacts on states response and so-called ‘free floating’ people are marked as threats. The state constantly tries to control them and hence one understands the distinctions that are made between brothel and non-brothel or flying sex workers. Since AIDS still fall in the realm of largely the unknown, the blame game encourages people to thrust such blame as could be apportioned on the alien or the migrants and commercial sex workers. Most are not interested to find out other correlation such as that between education and AIDS, family income and AIDS, empowerment and AIDS. One just wants to be absolved of the guilt. This has some fallout such as vulnerable groups becoming more vulnerable to the disease. Such a situation becomes clear when one looks at a newspaper report in the Assam Tribune, 4 December 2005,34 which evocatively states: With a population of 2.4 million people, the northeastern frontier state of Manipur, better known for its political unrest is also the state that has the highest HIV/AIDS infection in India .… The latest transmission trend is all the more alarming as HIV/AIDS is no longer confined to injecting drug users. It has spread to the general population and increasingly the virus is taking the sexual route and women and children are being infected steadily.
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It is true that women are becoming more and more vulnerable to HIV. Not just women with multiple partners but even those with single partners. I have not gone into their lifestyles after AIDS where their victimisation becomes clear; but even in terms of getting the disease their vulnerable position in society is largely responsible. It is their vulnerability that silences them when questions of sexual and reproductive health are decided within a family structure. The border makes the situation even murkier. Securitisation and militarisation encourages masculine values. On separate occasions I have discussed how borders encourage a regime of control, violence and counter violence. Women have traditionally faced the brunt of such violence. Increase of the number of HIV positive women can be understood within this framework. As partners, they are often ignorant victims of the violence of AIDS and as sex workers they are victims of the wrath of a community that uses them and then castigates them as immoral. Women living in geographical and social peripheries are equally vulnerable. This is reflected in the correlation between female sex workers of Kolkata and vulnerable women such as widows and other HIV positive women in Nagaland. In both cases, the women start off their lives at a disadvantage. They are often victims of abuse and violence. Often this violence is either perpetrated or supported by the state as is clear from the behaviour of police in Kolkata and the army in Nagaland. This reflects a direct correlation between patriarchy and violence where female sexuality is concerned. Control of female sexuality becomes an agenda for the state regime of control. This agenda achieves greater immediacy when it is conflated with the control of borders either social or geopolitical. The borders are sacred spaces and their regime of control is at its highest alert. It has to control sexuality particularly female sexuality as female sexuality has the capacity of fast becoming errant. Control of sexuality entails control of female bodies, which are seen as carriers of such ‘pollutants’ as HIV. This regime of control marginalises women further, making them more vulnerable in the process. This is because control necessitates harnessing, and harnessing for what purpose but to of course use the pliant body for the purposes and gains of patriarchy, and hence, the double bondage for women. Therefore HIV not just marginalises women but women get it because of their marginality and vulnerability. HIV therefore is the disease of the marginal of whom women are in the forefront.
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NOTES 1. ‘Overview of HIV and AIDS in India,’ Avert.org, 19 April 2007. 2. ‘Information gathered from NACO Report 2005,’ Available online at http:// www.nacoonline.org/publication.htm (undated). 3. ‘National Baseline High Risk And Bridge Population Behavioural Surveillance Survey: Report, NACO 2001,’ Available online at http://www.nacoonline. org/publication/42.pdf (undated). 4. ‘Social Assessment of HIV/AIDS Among Tribal People in India: A Report’ by AC Nielsen, ORG-Marg, Available online at http://www.solutionexchangeun.net.in/aids/resource/res-01-150506-01.pdf. 5. ‘2006 Report on the Global AIDS Epidemic,’ UNAIDS. 6. ‘Bangladeshi dacoits penetrate security cover in Khowai,’ Tripura Observer, 21 August 2003. 7. ‘Myanmar refugees in Mizoram face eviction,’ Shillong Times, 8 August 2003. 8. ‘Mizoram to deploy more cops on Myanmar border,’ Assam Tribune, 14 August 2003. 9. ‘AIDS: The enemy at the frontier,’ The Statesman, 15 October 2006. 10. ‘Advocacy programme on HIV/AIDS for migrant workers,’ Nagaland Post, 28 March 2004. 11. ‘Rebels threaten death to drug addicts, peddlers,’ The Shillong Times, 2 July 2004. 12. ‘Fighting AIDS,’ Assam Tribune, 24 April 2004. 13. ‘Perspective of drug abuse & HIV/AIDS in NE’, Meghalaya, 1 December 2005. 14. ‘Arunachal wakes up to flesh trade & HIV risks,’ Hindustan Times, 13 May 2005. 15. ‘Flesh trade sets off Barak AIDS alarm,’ Times of India, 1 October 2005. 16. ‘Rising AIDS graph threatens Tripura,’ North East Reporter, 12 April 2004. 17. ‘CRPF men in AIDS grip,’ The Times of India, 18 November 2006. 18. ‘AIDS threat to army in NE,’ Nagaland Post, 25 September 2005. 19. A report in a newspaper well portrays this fear by stating that, ‘As the world hunts for preventive measures against the deadly HIV/AIDS Guwahati continues to contribute to the number of HIV positive patients with the detection of 11 more cases among the homosexuals in the city.’ The Sentinel, 10 August 2006. 20. All the interviews are first person interviews taken by my research assistant Sumona Bagchi. 21. Interview taken by Sumona Bagchi in Tollygunge. 22. My fieldworks in Nagaland particularly in the AIDS Hospice in Kohima that I undertook between 26 and 30 June 2007 portray this new reality. I am grateful to Khesheli Chishi, President NMA for helping me to gather information on the changing nature of AIDS in Nagaland that I undertook. 23. ‘Stop Aids, Keep the Promise,’ issued by Dimapur District AIDS Control Committee in Nagaland Post, 1 December 2005.
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24. ‘Community Response and Vulnerability to HIV Infection: A Baseline Assessment Study in Dimapur, Nagaland,’ Conducted by Prodigal’s Home, Dimapur, Nagaland. Supported by OXFAM India Trust, Calcutta (Undated). 25. ‘A Report on Baseline Survey of Tibetan Community,’ December 2002– February 2003, Conducted by Prodigal’s Home, Dimapur, Nagaland. Supported by OXFAM India Trust, Calcutta. 26. ‘HIV/AIDS looming large over Dimapur,’ Nagaland Post, 25 July 2005. 27. ‘HIV transmission swings to sexual mode,’ Nagaland Post, 7 February 2005. 28. ‘A Report on Mapping of Vulnerable Areas 2002–03, Conducted by Prodigal’s Home, Dimapur, Nagaland, Funded by Nagaland State AIDS Control Society (NSACS), Government of Nagaland. 29. Research conducted in AIDS Kohima hospice from 26 to 30 June 2007. The research was done with the permission and logistic support from NMA. 30. FGD in Kripa Foundation office in Kohima, 27 June 2007. 31. ‘Myanmarese drug addicts seek help for treatment,’ Assam Tribune, 21 May 2006. 32. ‘Drugs, arms market flourishing on Assam–Nagaland border,’ Assam Tribune, 3 July 2005. 33. Interview with members of the Baptist Church, Dimapur, 29 June 2007. 34. ‘AIDS infection rate among women rising alarmingly in Manipur,’ Assam Tribune, 4 December 2005.
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5 Towards Environmental Justice Movement in India? Spatiality, Hierarchies and Inequalities SANJAY CHATURVEDI
The task of Governance must identify the subjects, take care of them, in times of acute inequality it must protect them. These two functions show the materiality of an unequal society and the materiality of rule over this unequal society. Samaddar 2007: 182
INTRODUCTION
E
nvironmental Justice (cited hereafter as EJ), both as a concept and movement, is slowly but surely receiving the kind of attention it demands and deserves in the context of social justice discourse and practices in India. To some extent, neglect of such issues in the past reflects the reluctance on the part of state as a dispenser of justice to come face to face with the hierarchical social pecking order in which communities live and interact. At its core, the notion of EJ relates to incorporating environmental issues into broader intellectual and institutional frameworks of human rights and democratic accountability. The key intention of this chapter is to critically examine, against the general backdrop of the globalisation of poverty (Chossudovsky 1997) on the one hand, and ecological degradation and climate change
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on the other, the state and status of ‘EJ’ in India. I would argue that EJ needs to be radically re-conceptualised in such a manner that it is perceived and practised as integral to the relentless pursuit of social justice in the hierarchical–patriarchal Indian social order imposed from above. In other words, I wish to demonstrate, taking a clue from the insightful epigraph above, that geography matters in case of both old and new forms of social and environmental injustice in India. In the context of an unequal social pecking order, it is not simply a matter of who you are but where you are. Even though environmental questions in general are becoming increasingly salient in world politics, considerations of climate change, natural disturbances, and catastrophes impacting on the reproduction of the social (world) system have not warranted much attention in the social and historical sciences in comparison to issues such as capital accumulation, class and elite dynamics, and technological adaptation (Chew 2006). The current dominant trend in both inter-state and intra-state relations relates to ‘managing’ environmental issues in ways that refuse to challenge both current inequalities in economic power and the ecologically destructive practices on which inequalities are based (Castree 2003: 436). The recent report of the Inter-Governmental Panel on Climate Change (IPCC) makes it absolutely clear that the poor and the marginalised are likely to bear the major brunt of climate change: ‘Poor communities can be especially vulnerable, in particular those concentrated in high-risk areas. They tend to have more limited adaptive capacities, and are more dependent on climate-sensitive resources such as local water and food supplies’ (IPCC 2007, Internet source). I will return to this issue towards the end of this chapter. The chapter begins by tracing in brief the origins and evolution of the concept of EJ and its various nuances. With the help of a number of case studies from India, the following key argument is made: the so-called ‘natural’ disasters, such as the Indian Ocean tsunami, receive disproportionately greater attention due to the human-ecological scale of destruction and displacement involved. However, it is often forgotten that devastating impact of such calamities is felt the most by the poor and the marginalised since they are already subjected to social-ecological hazards and disasters on a daily basis, and with little wherewithal at their disposal to cope and adapt.
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CONCEPTUALISING ‘ENVIRONMENTAL’ JUSTICE: QUESTIONING DOMINANT SPATIALITY AND HIERARCHIES It is worth recalling at the outset, even though briefly, the incident in a small, predominantly African–American community, in the United States of America, which proved to be a major catalyst for EJ movement in early 1980s. In 1982, the state of North Carolina decided to build a toxic landfill in Warren County, an area inhabited by an overwhelming minority and low-income community of African–Americans. This landfill was created for disposing polychlorinated biphenyl (PCB) contaminated soil removed from 14 colonies throughout the state. This incidence galvanised civil rights activists and environmentalist into immediate action. The outcome of the mass protest, which resulted in the arrest of more than 500 people, including prominent social activists, was that it brought national attention to bear on glaring inequities in the system. Some would place the beginning of the EJ movement much earlier, at the 1964 passage of the Civil Rights Act. The 1971 Annual Report by the Council of Environmental Quality (CEQ) in the United States also acknowledged that racial discrimination adversely affects the urban poor and the quality of their environment. Be that as it may, the message that had emerged loud and clear by then was that not only all ‘people’ have the right to a clean and healthy environment but more importantly, because of race and class discrimination, (and because of the dominant decision-making paradigm, based on ‘risk management’ and ‘risk assessment’, only serves to accommodate environmental hazards) communities of colour and low-income neighbourhoods are the most likely to be harmed by toxic chemicals and negative land uses, and the least likely to benefit from the technocratic–bureaucratic efforts to ‘improve’ the environment. In 1987, the United Church of Christ Commission for Racial Justice published a report that pinpointed a positive statistical correlation between the location of hazardous waste facilities and uncontrolled waste sites, and people of colour communities. This led to the politically explosive debate on ‘environmental racism’. Responding with a sense of urgency, the United States Environmental Protection Agency (US EPA) convened an internal workgroup of staff persons
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who undertook a two-year review of the then existing evidence of racial disparities. Their report, issued in 1992 (US EPA 1992, Internet source), did acknowledge that: … the evidence indicates that racial minority and low-income populations are disproportionately exposed to lead, selected air pollutants, hazardous waste facilities, contaminated fish tissue and agricultural pesticides, in the workplace. The extent and nature of the problem may not be known in every case, but EPA can help lead the way in clearly defining the problems.
That same year a report of an investigation by the National Law Journal found racial disparities in the enforcement of environmental laws. The concept of EJ also found its first concrete expression in South Africa in 1992 at a conference organised by Earthlife Africa, entitled ‘What Does It Mean to Be Green in the New South Africa?’ (Hallowes 1993). Leading South African environmentalists and academics, with their counterparts from around the world, gathered with the intention of mapping out a future for the EJ movement in South Africa. One of the outcomes of the conference was the creation of the EJ Networking Forum (EJNF), a nationwide umbrella organisation designed to coordinate the activities of environmental activists and organisations interested in social and environmental justice. The network rapidly expanded to include 150 member organisations by 1995 and well over 600 member organisations by 2000. With the election of the African National Congress (ANC) in 1994, the EJ movement had an ally in government as well. The ANC, while noting that ‘poverty and environmental degradation have been closely linked’ in South Africa, made it clear that social, economic and political relations were also part of the environmental equation and that environmental inequalities and injustices would be addressed as an integral part of the party’s post-apartheid reconstruction and development mandate (ANC 1994: 38). It is a truism that environmental problems bear down disproportionately upon the poor and the deprived. Whereas the rich can afford to ensure that their children breathe clean(er) air, that they are warm and well housed, and that they do not suffer on account of polluted water supplies, those at the bottom of the socio-economic ladder are hardly able to avoid the consequences of motor vehicle exhausts, polluting industry and power generation, or the poor distribution of essential facilities:
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This unequal distribution of environmental ‘bads’ is, of course, compounded by the fact that, globally and nationally, the poor are not the major polluters. Most environmental pollution and degradation are caused by the actions of those in the rich high-consumption nations; especially by the more affluent groups within those societies. (Agyeman et al. 2002)
In my view, the following definition of EJ from the quarterly newsletter of the South African EJ Networking Forum captures some of the basic philosophical tenets and underlines the focus on human and democratic rights that is so central to EJ movements in India and beyond: EJ is about social transformation directed towards meeting basic human needs and enhancing our quality of life—economic quality, health care, housing, human rights, environmental protection and democracy. In linking environmental and social justice issues the EJ approach seeks to challenge the abuse of power, which results in poor people having to suffer the effects of environmental damage caused by the greed of others. This includes workers and communities exposed to dangerous chemical pollution, and rural communities without firewood, grazing and water. In recognizing that environmental damage has the greatest impact upon poor people, EJNF seeks to ensure the right of those most affected to participate at all levels of environmental decision-making. (EJNF 1997, emphasis added )
The concept of environmental injustice raises a number of difficult questions, especially in the Indian context. One such question relates to the difficulty of how best to measure and address environmental inequities across space, given that EJ politics are permeated by considerable debate over the nature and spatial extent of both problem and possible solutions. The concept of EJ and practices associated with this notion, have forced much of contemporary ecological thinking and politics in North America and other parts of the world, since its rise to prominence in the late 1980s, as pointed out earlier (Gottlieb 1993, Taylor 2000). Environmental thinkers have been compelled to reassess the meaning of basic concepts like nature, environment, ecosystem, wilderness, biodiversity and wildness; while forcing others to consider the role of race, ethnicity and culture in the framing of environmental history, environmental ethics and ecological politics (Cronon 1996, Milton 1996). Many EJ theorists analyse ecological problems by relying on a social justice critique of environmental racism, which is defined as procedural, organisational and geographic inequities expressed in persistent patterns of institutionalised discrimination in environmental policy- and decision-making.
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The chief culprit behind discriminatory and disparate impacts of environmental issues is often identified to be the state, particularly as embodied in the norms, values, administrative practices and institutional structures of a socio-political system that emerged from and perpetuates unequal power relations on the basis of racial and other socially constructed differences. However, it is vital to acknowledge that, ‘State’s role as a dispenser of justice becomes important when there are conflicting notions of [environmental] justice circulating in the society’. To quote Ranabir Samaddar, ‘Justice can be realised only in the judicial function of balancing conflicting interests in social relations (political, industrial, trade, administrative and even community relations) with the consequence that the standards of justice become minimum in view of the sharply divided and fanatically pressed rival claims. Justice as award becomes the only answer in a context marked by rapid industrialisation, environmental pollution, labour unrest, corruption, hunger deaths and massive displacement of population, as the Court showed the way by expanding through interpretation the scope of the Consumer Protection Act (1986)’ (Samaddar 2007). The term ‘environment’ means different things to different people, in different environmental movements, in different time and space continuum. As Timothy Doyle (2005) argues environment as a symbol is almost as broad as nature itself. It provokes infinity of possible responses, which gather under and around it. While environmental issues have always been central to the disciplinary identity of the discipline of Geography, one needs to pay greater attention to what is ‘environmental’ about the issues in question. Whereas its semantic partner—the signifier ‘nature’—has received a good deal of critical scrutiny of late, the term ‘environment’ has an apparent obviousness that is yet to be critiqued. It is largely due to its unbounded nature that the term ‘environment’ is generally taken to imply the ‘non-human world’ of fauna and flora. The phrase, ‘environmental impact assessments’, which is quite central to the contemporary ‘green’ discourses on sustainable development, also appears to underscore the interplay between the two interrelated but distinct categories of ‘environment’ and ‘societies’. It is the latter that is perceived as utilising the former ‘out there’ in all its varieties. Thanks to the pioneering work of scholars like David Harvey (1973, 1996) over the years, our understanding of the spatialities of justice has improved considerably. Harvey’s later work (1996) integrates ‘nature’ with questions of social justice and
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links with emerging interests in EJ, with implications for localised strategies for environmental improvements close to where lower income and marginalised people live. Key issues that remain are, on the one hand, the actual experiences of injustice in neighbourhoods and, on the other, addressing politics of social and spatial justice in the context of the injustices fashioned as the result of deepening processes of neo-liberalisation. This point has particular relevance for India as it marches ahead with neo-liberal reforms. EJ discourse has meaningfully relocated the problematic of ecological politics within the constellation of cultural differences that construct variant epistemologies of nature (that is, as natural resource, commodity, wilderness, ecosystem, homeland). We may recall Rama Guha’s (1989) insightful observation that the wilderness of the natureappreciating eco-tourist from the first world is the homeland of the displaced native in the third world. This is how the local is denied access to the means of right livelihood, the collective resources of the land, and the memories of place that sustain her identity, and all because of unjust acts of brutal enclosure for the sake of ‘economic development’ or ‘wilderness preservation’ (also see Peña 1992). One good example of brutal enclosures for the sake of ‘economic development’ in India is the scheme of Special Economic Zones (SEZs), to which I shall return with some details later in this chapter.
STATE
AND
STATUS
OF
EJ
IN INDIA:
AN OVERVIEW
The Winrock International India project on ‘EJ Issues’ in India (2004) has looked at wide-ranging issues such as loss of access/rights to common property resources, disruption of livelihood patterns of poor and marginalised communities, small farmers, tribals and fisherfolk due to environmental degradation or interventions which result in pollution, land degradation, creation of dams, mining in forest areas, natural disasters such as floods, loss of biodiversity, creation of protected areas, human–animal conflicts and groundwater degradation. The Report concludes by saying: The coastline of India provided livelihoods to about 12 million fisher people spread across ten states. Pollution and degradation of our coast continues at an ever increasing pace threatening not only millions of livelihoods, but the ecological sustainability of the resource base itself. Dams continue to displace
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thousands of families and disrupt lives in ways that cannot be reversed. Similarly, mining leases obliterate forests, fragment habitats beyond repair and push out indigenous people. In national parks and wildlife sanctuaries, the threat of eventual displacement is faced by over one and half million tribals and forest dwellers. Overexploitation of ground water, spurring salinity ingress; relentless forest degradation destroying the traditional livelihood base of thousands of communities; recurrent floods and loss of biodiversity all contribute to a silent but massive seasonal or permanent migration .… An in-depth analysis of these cases reveals a pattern in several cross-cutting EJ issues, almost as a thematic malaise in the system. Repeatedly, environmental concerns are seen to undermine the social injustice inherent in our interventions or responses to conservation, development or natural calamities. Often, inequity is perpetrated through flagrant or covert violation of existing laws with impunity. (2004: 8)
One of the case studies in the Winrock project, on the status of marine pollution and its impacts on the ecosystem and local fisherfolk in the states of Kerala and Tamil Nadu, has shown how thermal and chemical pollution of water bodies are clearly destructive of aquatic ecosystems and leave disproportionate impacts on ‘naturecentred communities’ such as fishing communities, whose existence completely depends on the water bodies. In many parts of India, the flora and fauna of the polluted waters have been largely destroyed, resulting in a sharp decline in the fish catch, which has adversely impacted the socio-economic situation of a large number of fishing communities in the area. Fisherfolk have registered a drastic decline in income and unemployment levels are increasing and standards of living declining. Beyond the Indian Ocean Tsunami: EJ for the Coastal Communities? On 26 December 2004, the earthquake-induced tsunami disaster struck the coastal regions and communities on the Indian Ocean rim, killing more than 300,000 people and displacing 5 million. The coastal zones accounted for nearly 96 per cent of the total human loss and sufferings and about 12 per cent of the total economic damage recorded in Indonesia, Sri Lanka, India, Thailand, Myanmar, Maldives and Bangladesh. The fatalities were also reported in the Seychelles, and on the other side of the Indian Ocean in Somalia’s Puntland region, Tanzania and Kenya.
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The tsunami disaster affected almost 3 million people in India and left 12,000 dead. A total of 647,599 people had to move to safer places. The disaster affected women and children in particular: 75 per cent of the fatalities were women and children. The state of Tamil Nadu (where 376 villages were affected) and the Union Territory of Andaman and Nicobar Islands suffered the highest human loss. The estimated total financial losses in India, according to official Indian sources, exceeded US$ 1.2 billion. As of November 2006, 27,845 houses (28 per cent) of the total 98,478 required across India have been completed, basically through the efforts of the state and NGOs, according to the report titled ‘Tsunami: India—Two Years After’ (UN, World Bank and Asian Development Bank 2006, Internet source). The remaining homes are in various stages of construction and a fairly large number of fishing communities are still in temporary shelters. In the state of Tamil Nadu, where about two-thirds of the destruction occurred, more than a third of the homes slated for construction have been completed and 20,128 have been handed over. India, while refusing to accept any aid from outside powers and agencies for post-tsunami reconstruction and rehabilitation, was rather prompt in sending financial and material help to neighbouring Sri Lanka. A key question in the development debate in contemporary India revolves around the relationship between growth, equality and poverty. While it is true that India is too diverse to be represented in a meaningful way with singular development statistics (Grant and Nijman 2004), India’s growth process during the last two decades seems to have polarised the economy; resulting in growth with inequality (Nagaraj 2000). The differential effects of liberalisation and globalisation are not confined to people according to socioeconomic characteristics such as class or to location in hierarchical caste-based social order. The differential effects also vary across space. Be it development or disaster (some would describe disaster as the unfinished task of development), it is important not only who you are but also where you are. The majority of those affected on the coast by the tsunami were fisherfolk. And among them worst affected were the vulnerable groups as well as those living below the poverty line. According to certain estimates as many as one-third of the people who bore the major brunt of tsunami are from the underprivileged and socially marginalised groups such as the Dalits or tribal people (Nagaraj 2000).
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Institutional Landscape: National Policy for Natural Disaster Reduction As far as the institutional landscape dealing with disaster mitigation/ management in India is concerned, it looks quite comprehensive and impressive on paper. For example, the high powered committee for the preparation of disaster management plans, set up by Government of India, comprises representatives from several ministries including: Agriculture, Defence, Surface Transport, Power, Health and Family Welfare, Water Resources, Animal Husbandry, Urban Development and Poverty Alleviation, Planning and Programme Implementation, Home Affairs, Rural Development, Information Technology, Information and Broadcasting, Communication, Heavy Industries, Social Justice and Empowerment, Civil Aviation, Non-conventional Energy Resources, Petroleum and Natural Gas, Finance, External Affairs, Commerce and Industry, Science and Technology, Labour, and Consumer Affairs and Public Distribution. It is to state the obvious perhaps that ensuring inter-ministerial, inter-departmental coordination itself is going to be a major challenge. India’s National Policy for Natural Disaster Reduction is aimed at ensuring reduction in (a) loss of lives; (b) property damage; and (c) economic disruption. The more specific goals have been identified as follows: creating public awareness about safety from disasters; amending/enacting legislation for safety from hazards; planning development areas with safety from hazards; protection of habitations from adverse hazard impacts; constructing new buildings safe from hazards; and retrofitting existing buildings for improving hazard resistance. Emphasis has also been placed on the adoption of certain legal measures. These include amendments to town/country planning acts and master plan area development rules; land use zoning in hazard prone areas and establishing techno-legal regimes; incorporation of safety requirements in building by-laws of local bodies/panchayats, applicable to new buildings and extensions of old buildings; empowering local bodies to exercise control; legislation to upgrade hazard resistance of critical buildings for use and safety of large number of people—schools, hospitals, cinemas, congregation halls, water tanks, towers, telephone exchanges, fire stations, headquarters of police and administration.
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The Disaster Management Bill of 2005 (as passed by the Houses of Parliament) has been described by many as a landmark for disaster risk mitigation in India. It defined disaster and disaster management in the following terms: 1.
2.
‘disaster’ means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area; and ‘disaster management’ means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for: (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or disaster; (vi) assessing the severity or magnitude of effects of any disaster; (vii) evacuation, rescue and relief; and (viii) rehabilitation and reconstruction.
The National Disaster Management Authority, with the Prime Minister as the Chairperson, is given the responsibility for laying down the policies, plans and guidelines for disaster management and for ensuring timely and effective response to disasters. However, the implementation has been entrusted to the ‘State Executive Committee’, which is to be set up by the ‘State Disaster Management Authority’. Each state government will then establish a District Disaster Management Authority for every district in the state. And subject to the directions of the District Authority, a local authority shall: (a) ensure that its officers and employees are trained for disaster management; (b) ensure that resources relating to disaster management are so maintained as to be readily available for use in the event of any threatening disaster situation or disaster; (c) ensure all construction
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projects under it, or within its jurisdiction, conform to the standards and specifications laid down for prevention of disasters and mitigation by the National Authority, State Authority and the District Authority; and (d ) carry out relief, rehabilitation and reconstruction activities in the affected area in accordance with the State Plan and the District Plan. The local authority may take such other measures as may be necessary for the disaster management. The overall civil society response to the Bill, which aims at promoting safer economic growth, especially in tribal and less developed areas, has been positive but a number of critical concerns have been raised. First and foremost, it is not clear how state level disaster authorities will coordinate their efforts with the National Disaster Management Authority (NDMA), and what mechanisms will be proposed to increase flow of lateral relief and support between these authorities. The Bill does not define victims or identify vulnerable populations. Although the Bill is comprehensive there is a possible pitfall in that it may restrict itself to relief and rehabilitation packages and may not execute effective operations for risk reduction, mitigation and more importantly adaptation. According to the Bill, ‘local authority’ includes Panchayati Raj Institutions (PRIs), municipalities, a district board, Cantonment Board (institutions that are entrusted with the responsibility to cater to the municipal needs and provide civic administration to the people residing in the cantonment), town planning authority or Zila Parishad or any other body or authority, by whatever name called, for the time being invested by law, for rendering essential services, or, with the control and management of civic services, within a specified local area. In contrast to the official construction of ‘local authority’ at the grassroot levels, the civil society argument would be that PRIs at the village, block and district level represent, but do not exhaust, the ‘community’, which also includes user groups, self-help groups, traditional and self initiated groups and non-government organisations (NGOs). The community acts as a unit of management by virtue of the fact that water, forests and uncultivated lands are held as common property resources. Ideally, community control over local government functionaries is likely to result in greater accountability. The problem of implementation in drinking water, watershed, irrigation and forestry programmes could also be answered by strengthening the participation of the local people and mounting the political pressure to ensure that the allocated resources are being properly utilised by a fixed deadline.
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It is equally important to ensure that unambiguous and impartial criteria are followed for selecting areas and villages for the purposes of relief and rehabilitation. The critics further point out that the Bill must also redefine ‘reconstruction’. Since reconstruction is concerned with building much stronger lives and livelihoods and far more resilient adaptive strategies, and not merely replacing lost property. In view of the fact that PRIs have been given a central and critical role by the Disaster Management Bill, the limitations of the legislation facing the PRIs need to be examined, even though briefly. One of the major inadequacies of the 73rd Amendment Act to the Indian Constitution is that the powers and functions of gram sabhas are not defined. Actual devolution of powers to panchayats is left to the discretion of the state governments. No autonomy has been granted to PRIs to function as institutions of self-government. Political reluctance to give up control over implementation and funds is another problem, and finances of PRIs leave much to be desired. The pace and progress of post-tsunami rehabilitation and reconstruction programmes have shown that effective panchayats/user groups would require, in the first instance, an effective district and block level administration. This in turn might ensure greater coordination and better governance. It has also been pointed out by some analysts that the Bill needs to focus more on gender issues and on the special needs of women. The gender dimension of the devolution debate and its close link with disaster management is also extremely important. The different ways in which politics is understood locally and nationally also needs to be taken into account. The kinds of decisions that the gram panchayats make are often simultaneously economic, social and political. They have to do with questions of land ownership, municipal facilities, marital disputes and the distribution of power. This convergence of issues between public and private spheres encourages the panchayats to further expand the definition of the political to include issues that are normally considered private rather than public, social rather than political and collective rather than individual. Manual Scavenging in India It is a truism that poverty is still defined by race, class, gender and geographical location, a fact that has implications for the state and status of EJ. Indeed, it is neither desirable nor feasible to gloss over
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the fact that the main causes of death in Africa and Asia are related to environmental facts such as inadequate sanitation, inefficient (or no) solid waste removal systems, lack of access to clean drinking water, and the citing of polluting industries in close proximity to areas housing the poor. A complete analysis would include the relation between poverty/living conditions and the mortality of the combination of AIDS and Tuberculosis (TBC). Though considered illegal, manual scavenging is forced onto Dalits by caste pressures, who are exposed to the most virulent forms of viral and bacterial infections that affect their skin, eyes, limbs, respiratory and gastrointestinal systems. Official figures show that there are still 3.43 lakh scavengers in the country. A 2002 report prepared by the International Dalit Solidarity Network, including Human Rights Watch (United States), Navsarjan, (Ahmedabad, Gujarat) and the National Campaign on Dalit Human Rights (NCDHR), gave estimates of 1 million Dalit manual scavengers in India. The term ‘manual scavenger’ implies a person engaged in or employed for manually carrying human excreta and the expression, ‘manual scavenging’, is construed accordingly. The manual scavengers, a vast majority being women and young boys, have different caste names in different parts of the country: bhangis in Gujarat, pakhis in Andhra Pradesh and sikkaliars in Tamil Nadu. These communities are invariably placed at the bottom of caste hierarchy, as well as of Dalit sub-caste hierarchy. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, passed in the forty-fourth year of India’s independence, acknowledges that ‘the dehumanizing practice of manual scavenging of human excreta still continues in many parts of the country;’ and punishes the employment of scavengers or the construction of dry (non-flush) latrines with imprisonment for up to one year and/or a fine of Rs 2,000. Offenders are also liable to prosecution under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This Act to eradicate a pernicious practice that only Dalits were subjected to, aims at ‘assuring’ the dignity of the individual as enshrined in the Preamble to the Constitution. The Act, first enforced in Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura, West Bengal and all the union territories, made it obligatory to convert dry latrines into water-seal latrines
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(pour-flush latrines). It was expected that the other states would adopt the Act by passing an appropriate resolution in the legislature under Article 252 of the Constitution. For the purposes of this chapter, I would like to refer briefly to how the Act defined the term ‘environment’. According to the Act, ‘environment’ includes water, air and land and the inter-relationship which exist among and between water, air and land and human beings, other living creatures, plants, micro-organism and property; (e) ‘environmental pollutant’ means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment; ( f ) ‘environmental pollution’ means the presence in the environment of any environmental pollutant. Whereas the Act does make a reference to Article 47 of the Constitution, which inter alia, provides that the state shall regard raising the standard of living of its people and the improvement of public health as among its primary duties, it falls short of locating the issue of EJ firmly and squarely within the context of caste hierarchy in the Indian social order. A petition filed in the Supreme Court in 2003 pointed out that the practice persists in many states of the country, and particularly in public sectors like the Indian railways. The petitioners sought the enforcement of fundamental right of persons engaged in this practice guaranteed under Article 17 (right against untouchability) read with Articles 14, 19 and 21, that guarantee equality, freedom, and protection of life and personal liberty, respectively. They urged the Supreme Court to issue time-bound directions to the Union of India and the various states to take effective steps to eliminate the practice of manual scavenging, and to formulate and implement comprehensive plans for rehabilitation of all persons employed as manual scavengers. According to certain estimates, the number of manual scavengers has increased from 5.88 lakhs in 1992 to 7.87 lakhs. Unofficial surveys estimate that over 12 lakh manual scavengers, of whom 95 per cent are Dalits, are thrust with the task of this ‘traditional occupation’.
JUDICIAL ACTIVISM
AND
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In June 2004, a meeting on ‘South Asian Judicial Interaction on EJ and Equity’ was held in Kathmandu, Nepal. Facilitated by Toxics Link
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(an environmental resource group based in India) the Kathmandu Declaration adopted in Kathmandu on 25 June 2004 (see Annexure B) by sitting judges of the Hon’ble Supreme and High Courts of Bangladesh, India, Pakistan, Nepal and Sri Lanka. It concluded with a key declaration that assigns the judiciary of these South Asian nations the responsibility of protecting the biodiversity of this region and providing for EJ in the face of increasing environmental exploitation. We need to pause and ponder over the implications of this declaration. From one perspective, this may be termed as a remarkable effort of collaboration in South Asia, whereby the representatives of the judicial arms of Bangladesh, India, Pakistan, Nepal and Sri Lanka present a joint declaration committed to EJ in South Asia. Ecologically speaking, these countries are closely knit through rivers and atmospheric movement, and an environmental disaster in one region often impacts others. This declaration, therefore, can be seen as an important acknowledgement of the need to empower both communities and environmental protagonists so that they are in a position to conserve the ecological sanctity of the region. It also presents a joint front in resisting environmental exploitation by multinational corporations or other external institutions. No doubt it is a first declaration of its kind by the highest judicial bodies of the region and also unique in the sense that it approaches the notion of EJ through a (human) rights perspective. There is an explicit recognition of the ongoing exploitation of biodiversity and the need to resist and reverse such trends. More over, in resisting such exploitation, the judicial bodies of South Asia acknowledge EJ as a fundamental human right, recognise the role of local communities in such an effort and underscore that empowerment of these communities are key to the success of such an effort. Such emphases are consistent with the Universal Declaration of Human Rights which, by setting out the right to a ‘social and international order where the rights and the freedoms set forth in this Declaration can be fully realized,’ calls upon governments to take positive steps towards the development of a social structure in which human rights can take root and be safeguarded. To what an extent is it desirable as well as feasible to assign the judiciary of South Asia, beyond a ‘reasonable’ threshold, the responsibility of protecting the environment, its biodiversity and means
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of enforcing polluter pay principles? While it is true that the South Asian region has become a preferred dumping ground of toxics, hazardous waste, materials and technologies, which impacts the people—especially the poor—it is the prime responsibility of the institutions of political governance to adopt pro-active constitutional and legal measures to protect and promote EJ. I find considerable merit in the argument made by Ramaswami R. Iyer (2002) that when in some cases the judiciary stretches its scope or jurisdiction or concerns, the goal is to secure human rights or ensure justice or protect the environment. For example, the Supreme Court of India can hold that the right to drinking water is part of the right to life. Correspondingly, it can direct the state to ensure that that right is not denied. But what is perhaps not within the domain of the judiciary is to decide how that right is to be ensured. The point that I wish to stress here is that judicial activism has an important but limited role to play in regard to securing EJ. The Kathmandu Declaration, also having raised the issue of intellectual property issues vis-à-vis South Asian traditions and biodiversity, gives the judiciary of South Asia the responsibility to protect traditions from current practices of intellectual property piracy and fraud. It rightly underlines the importance of empowering local communities and environmental activists so that they could resist the onslaught of environmental degradation, driven largely by profit motives of economic institutions. An active civil society with legal tools in their hand can hopefully serve as a valuable counterbalance in a period of fast, and in some regards unsustainable, development in South Asia and in the best case assure that the strive to reduce social injustices do not worsen the environmental injustices.
CLIMATE CHANGE, NATURAL DISASTERS
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It is neither feasible nor desirable to write about EJ today without some serious and systematic engagement with climate change and its implications for the poor and the deprived. The Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: The Physical Science Basis—Summary for Policymakers, vividly reveals how bad the situation is and that it
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will worsen. It points out there has been a noticeable increase in carbon emissions in recent times, from 6.4 billion tonnes per annum in the 1990s to about 7.2 billion tonnes per annum in the years 2000–05. This is an increase of 12.5 per cent in just a few years and that too despite the Kyoto Protocol having been in force. This has resulted in carbon emissions increasing to 26.4 billion tonnes of carbon dioxide each year. Consequently, carbon dioxide in the atmosphere has increased from 280 parts per million (ppm) around the time of the Industrial Revolution to 379 ppm currently. To this if one were to add other greenhouse gases, primarily methane, we reach carbon equivalent levels of roughly 440 ppm at present. As a result of these greenhouse gases hampering the earth’s heat from escaping, the average temperature over the earth has increased by 0.76 degrees Celsius from what it was at the time of the industrial revolution. Another element missing in much of the press coverage is class, of how the effects of climate change will be felt differentially and will exacerbate existing inequalities and food and water scarcity particularly in India. Agriculture in India will be hit for a multiplicity of reasons. Rising sea levels due to warming will mean flooding in coastal areas—which are often the most fertile—and overtime salty seawater entering groundwater sources, upon which agriculture partially depends. Monsoons will become more intense and heavy rains will form a greater proportion of rainfall in a given season, hence affecting agriculture patterns. Dryland farmers will be badly hit. A rise of two degrees will result in falling rice yields, says a study by scientists at the Indian Agricultural Research Institute. Also, according to the glaciologist Anil Kulkarni, a study of 466 Himalayan glaciers revealed that their surface area had receded from 2,077 sq km in 1962 to 1,628 sq km at present, a 21 per cent decline. If the recent news report on submissions made by Indian scientists to the IPCC is to be believed, Himalayan glaciers will shrink further to one-fifth of their present area, from 500,000 sq km to 100,000 sq km. This will mean increased water (or even floods) for a while, followed by even greater water scarcity than at present. This report suggests that agriculture yields could decline by over a quarter. These levels are projections but the fact of significant decline in yield is not doubtful. This in a country where as a result of other policies, agriculture is already in deep crisis. Due to the agrarian crisis, operational holdings have declined by 4 million between 1993 and 2003. The
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number of operational holdings below 1 acre has lessened by nearly 5 million, because for these poor households agriculture is simply not worth their while. In a country that already has the highest number of children in the world suffering from malnutrition and in which per capita consumption of foodgrains has declined in recent years, the impact on the rural poor of agriculture and water supply being hit by climate change can barely be imagined.
OFFICIAL RESPONSES The Indian government’s response, according to some critics, has been akin to Nero. Deploying the principle of differentiated responsibility, it has merely been saying that the developed world is primarily responsible for global warming and that India will not forsake growth for the environment. As a recent article argued, ‘Besides activity in the market for “clean development mechanism” projects, which will have little impact on emission trends, India is practically silent on the international stage.’ There is no doubt that the first world and capitalism are primarily responsible for the plight we are in—America alone emits almost a quarter of the world’s carbon emissions—but given the little time to act and given that all scientific studies indicate that South Asian and Indian water sources, forests, biodiversity, shorelines and agriculture are already getting hit and going to get worse hit, the Indian government needs to move fast. Unfortunately—and this is ironically tragic—since issues of survival, employment, food security are so much at stake and on people’s minds, one major cause that will make these more precarious seems a faraway fancy of the environmental fringe, and far removed from immediate concerns. Among many Left friends, mention of global warming gets a blank look. It is hardly surprising that the government is doing little; there is hardly any popular pressure on it to do so. Time is running out rather fast for India. The urgency of climate change is yet to register itself on the national political agenda and list of priorities of the government. The sooner the relevant government agencies act to mitigate some of its impacts, even as we incorporate the inevitable environmental destruction that capitalism causes in our quest for a sane society, the better it would be for the nation and its neighbourhood.
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Special Economic Zones and Environmental Injustices in the Making: Critical Perspectives Not much attention has been given to the underlying economic forces of industrial production that create environmental hazards in the first place and ultimately affect pollution flows among diverse communities. Indeed, metropolitan and regional development does not occur on a static ‘clean slate’, but rather on a landscape shaped by industrial production, a racialised division of labour, economic restructuring as well as labour and community politics. A comprehensive theory of environmental inequality and injustice requires inquiry into how a spatialised political economy shapes distributions of environmental hazards and variations in community exposures to toxics (MorelloFrosch 2002). For some, India’s Special Economic Zone (SEZs) policy might be a good evidence of the country’s new openness, and one that will soon overcome the nation’s ‘infrastructure deficit’. But peasant protests over government acquiring their land for big business, especially in the wake of the deaths in police firing in Nandigram in East Midnapur district of West Bengal on 14 March 2007, show that resistance is in making over a glaring example of making compromise with corporate globalisation. With state governments being dissociated from the acquisition of land for private SEZ promoters, the peasants and landowners are virtually left at the mercy of market forces. Virtual absence of legally enforceable resettlement and rehabilitation liability of the promoter to redress the loss of habitat and environment of those displaced bodes ill for the realisation of EJ in India. Inspiration for setting up SEZ as in the Indian case seems to have come from China where, it is important to note, land for the purpose was acquired (and continued to be owned) by the state and its agencies were entrusted with the task of developing the infrastructure and inviting the private sector to set up their export-oriented businesses. However, in India the land for SEZs is to be acquired and owned by private promoters/developers. What is most worrisome from the point of environmental justice is that the SEZ project proposals of these private promoters might be given final approval by the government/ public authority even before the issues relating to compensation, resettlement and rehabilitation of the displaced persons are settled,
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and before social and environmental impact assessments are carried out. In fact, these assessments are not mandatory at all. In the process, conspicuous by their near total absence are the concerns of those with tenancy rights, landless labourers who tilled the land, as well as those who derived their livelihoods in the non-farm local economy. The question of the market price of the land has been left to the vagaries of the so-called ‘just price’. It is not hard to imagine that when a decision to turn agricultural land into real estate is to be taken, it is the speculator-developers who would buy up the lands at ‘market prices’ in anticipation that the prices will sooner or later hit the roof.
CONCLUDING OBSERVATIONS: EJ AND THE EMERGING TERRAINS OF RESISTANCE The foregoing analysis shows that at least a preliminary answer can be given to the question we raised at the beginning of this chapter, whether it is useful to look at the notion of EJ (both as a set of values and practices), in the perspective of social justice and human rights. The answer is clearly yes, it is useful and necessary. What does it mean to write on ‘environmental issues’ when those issues are never simply or only environmental? It appears that ‘environmental’ and ‘non-environmental’ entities are often so thoroughly co-implicated that it is simply misconceived to study them in isolation. Eco-centrists insist upon ecologically sound practices even when nature is not insulated. Some of them would also argue that in some cases socialists have not been as sensitive to nature as they ought to be. It may also be the case that certain versions of socialism are irreconcilable with ecological justice (Stevis 2000). In order to be more persuasive, however, deep ecologists must make explicit their vision of the social relations necessary or desirable in an ecologically just or sound society. My intention in this chapter has not been to dismiss deep-ecological versions of EJ on their face value, but to sound a note of caution to the effect that nature should not be used as a smokescreen, since it can have unfortunate results for both nature and social justice. In other words, implications of nature of social asymmetries, as in the case of India, are too profound and visible to be ignored.
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Whereas the EJ movement ought to be understood as a grassroots or ‘bottom-up’ political response, the sustainability agenda has emerged in large part from international processes and committees, governmental structures, think-tanks and international NGO networks. In this sense, sustainability as a policy approach can be understood as a more exclusive, ‘top-down’ phenomenon. Paradoxically, however, the implementation of sustainability is generally seen as possible primarily through local action. Perhaps the most important and successful outcome of the 1992 Earth Summit was the commitment to Agenda 21 and the Local Agenda 21 process worldwide. Despite the undoubted yet patchy success of this initiative, it is clear that, whilst there has been increasing recognition of justice and equity issues, in most cases, rhetoric is yet to be translated into action. The story of Bhopal, two decades on, is not merely one of a seriously botched litigation and a sequence of bureaucratic missteps. It is also one of the denials of information by a state to its citizens, when information could clearly have saved lives. Bhopal’s was no mere industrial disaster. It is a deepening institutional crisis for Indian democracy. There are encouraging signs, however, that a constructive dialogue is emerging in India, and it is my contention that this is both essential and overdue. In the main, this dialogue is restricted to progressive NGOs, academics and local community organisations. What is now needed is for governments at local, regional, national and international levels to learn from these organisations (something easier preached that achieved) and to seek to anchor the central principles and practical approaches of EJ into sustainable development policy. Whilst the Indian government, at various levels has adopted some kind of commitment to sustainable development, not many recognise perhaps the importance of placing this within a context of social justice, equity and human rights. The need to ensure that public policy—environmental or otherwise—does not disproportionately disadvantage any particular social group must be a precondition for a just and sustainable society. I have argued in this chapter that in societies such as India, marked by various kinds of overlapping hierarchies, EJ should be seen as integral to social justice. However, the governmental form of justice (such as welfare provisions, public interest litigation, positive discrimination, and so on), although important in so many ways, has serious limitations.
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Environmentalism has to be seen as inclusive of human political dimension. In a recent seminal study, Ranabir Samaddar (2007) points out succinctly that, ‘understanding and explaining the strategic games of politics requires continuous efforts to find out how issues turn into problems in politics.’ Furthermore, argues Samaddar, ‘understanding the materiality of politics requires an ever-critical gaze into the existing forms of politics. This is not the task of a single person. The enterprise must be conducted at several places and around several themes.’ In agreement with Samaddar, I have argued in this chapter that one such theme in the Indian context is EJ which follows from and leads towards an inclusive politics, which alone can ensure in an enduring fashion, humane governance and social justice in a diverse country with more than 1 billion people. It is quite true that beyond a few core principals there is much that fragments the EJ movement in India due to a lack of coherent theoretical framework. Diversity drawing people and organisations into an ecological movement they might not otherwise have connected to is not necessarily a problem. It is possible to argue that grassroots struggles bridging environmental with social justice concerns are increasing but they are not generally framed as EJ struggles. One of the reasons for this could be that the identity as environmentalist is still somewhat stigmatised and always in the danger of being securitised. Those who prefer the phrase ‘environmental security’ to ‘EJ’ should be aware that turning the environment into an object of national security risks undermining the positive forms of global environmental thinking and cooperation that have been emerging in recent years. The movement to preserve the habitability of the planet for future generations must directly challenge the tribal power of nationalism and the chronic militarisation of public discourse. Ecological degradation is not a threat to national security; rather, environmentalism is a threat to national security attitudes and institutions. When environmentalists dress their arguments in the blood soaked garments of the war system, they betray their core values and create confusion about the real tasks at hand. It is a truism that national security establishments need an enemy, and one might wonder as to who is the enemy when violence and instability are blamed on population pressures and resource scarcities? Implicitly, if not explicitly, the enemy becomes poor people, especially poor women, and the social movements which represent
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them (Hartmann 1998). It may be an ironic outcome of the scarcityconflict model that environmental groups are, themselves, targeted as security threats when they challenge the control and degradation of natural resources by local elites, governments and transnational corporations. Anti-environmentalist repression is already occurring in many countries. Witness the violent suppression of the Ogoni people in Nigeria who are trying to protect their lands from destruction by Shell Oil. Sooner or later, when their lands are rendered uninhabitable, they too will probably be written off as resource scarce. The time is now to challenge the population, environment and security trinity before it exercises a firmer hold on public policy and consciousness. The engagement and integration of critical social science research with the experiences and activism of environmental, women’s, peace and refugee rights movements can (and should) create a new and deeper understanding of the forces generating poverty, environmental destruction and violence. One inspiring example in this regard is the work of Paul Routledge (2003). Routledge analyses the conflict surrounding the construction of mega-dams along the Narmada river valley in central India. He examines various repertoires of resistance employed by the Narmada Bachao Andolan (save the Narmada movement, NBA) the principal protagonist resisting the Narmada valley development project. He shows how, on the one hand, various spaces of economic, cultural, ecological and political erasure are engendered by the construction of the Narmada dams, and how, on the other hand, the NBA articulates resistance, and engages in constructive development alternatives, in each of these spaces. The discursive articulations of resistance provide a crucial counterpoint to material expressions of struggle. Is democracy good for the environment and EJ? Is it possible to create conservation policy that does not deny the rights of vulnerable people to their habitat and its rapidly shrinking resource base? Questions such as these can be fully answered by examining more carefully the specific character of political institutions. Indeed, the convergence of these two approaches suggests the possibility of an everyday political ecology of the state, and of an ethnographic exploration of institutions in nature, hinted at in current work of both political geographers and political ecologists. The analytical and practical benefits of such a convergence are too important for critical scholarship to ignore. It is both timely and important to turn the
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critical gaze to the implications of corporate globalisation, race towards the privatisation and propertisation of genes, the human body, plants and new discoveries for EJ in India. Even though I have not dealt with these issues in this chapter, I believe that they will be enormously significant in the times to come. In the short to medium terms, in the shadow of Bhopal gas leak victims still waiting for justice and the dehumanised practice of scavenging yet to be fully eliminated, it is the ‘fragmentation’ of India in the form of SEZs that would demand and deserve scrutiny by all those concerned with socio-ecological justice in India.
ANNEXURE A Principles of EJ Preamble We the People of Color, gathered together at this multinational People of Color Environmental Leadership Summit, to begin to build a national and international movement of all peoples of color to fight the destruction and taking of our lands and communities, do hereby re-establish our spiritual interdependence to the sacredness of our Mother Earth; to respect and celebrate each of our cultures, languages and beliefs about the natural world and our roles in healing ourselves; to insure EJ; to promote economic alternatives which would contribute to the development of environmentally safe livelihoods; and, to secure our political, economic and cultural liberation that has been denied for over 500 years of colonisation and oppression, resulting in the poisoning of our communities and land and the genocide of our peoples, do affirm and adopt these Principles of EJ: 1. EJ affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction. 2. EJ demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias. 3. EJ mandates the right to ethical, balanced and responsible uses of land and renewable resources in the interest of a sustainable planet for humans and other living things. 4. EJ calls for universal protection from nuclear testing, extraction, production and disposal of toxic/hazardous wastes and poisons and nuclear testing that threaten the fundamental right to clean air, land, water and food.
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5. EJ affirms the fundamental right to political, economic, cultural and environmental self-determination of all peoples. 6. EJ demands the cessation of the production of all toxins, hazardous wastes and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production. 7. EJ demands the right to participate as equal partners at every level of decision-making including needs assessment, planning, implementation, enforcement and evaluation. 8. EJ affirms the right of all workers to a safe and healthy work environment, without being forced to choose between an unsafe livelihood and unemployment. It also affirms the right of those who work at home to be free from environmental hazards. 9. EJ protects the right of victims of environmental injustice to receive full compensation and reparations for damages as well as quality health care. 10. EJ considers governmental acts of environmental injustice a violation of international law, the Universal Declaration On Human Rights and the United Nations Convention on Genocide. 11. EJ must recognise a special legal and natural relationship of Native Peoples to the US government through treaties, agreements, compacts, and covenants affirming sovereignty and selfdetermination. 12. EJ affirms the need for urban and rural ecological policies to clean up and rebuild our cities and rural areas in balance with nature, honouring the cultural integrity of all our communities, and providing fair access for all to the full range of resources. 13. EJ calls for the strict enforcement of principles of informed consent, and a halt to the testing of experimental reproductive and medical procedures and vaccinations on people of color. 14. EJ opposes the destructive operations of multi-national corporations. 15. EJ opposes military occupation, repression and exploitation of lands, peoples and cultures, and other life forms. 16. EJ calls for the education of present and future generations which emphasises social and environmental issues, based on our experience and an appreciation of our diverse cultural perspectives. 17. EJ requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth’s resources and to produce as little waste as possible; and make the conscious decision to challenge and reprioritise our lifestyles to insure the health of the natural world for present and future generations. Adopted, 27 October 1991, in Washington, D.C.
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ANNEXURE B Kathmandu Declaration WHEREAS during the last decade there has been a global awareness and interest in the importance of indigenous herbs and other flora and fauna, which has led to various forms of exploitation of this heritage belonging to the developing nations. WHEREAS also noting that the South Asian Region has become a target of an international trade in toxics and hazardous waste, materials and technologies, which impacts the people and the environment of the land, and specially that of the poor. WHEREAS having firm belief in the cultural and natural heritage of the people of South Asia and the development in the protection of biodiversity and associated knowledge for the use and benefit of future generations. Also having greater confidence in the superior judiciary of the South Asian Countries in protecting the environment and biodiversity, common peoples right of access to justice, declaring environmental rights as fundamental rights, enforcing precautionary principle, polluter pays principle, applying principles of sustainable development, the doctrine of public trust and guardianship and affirming respect for international conventions treaties and legal instruments. WHEREAS we emphasise our commitment to the Universal Declaration of Human Rights and the UN Human Rights Conventions and Multilateral Environmental Agreements and recognise their close connection with sustainable development and upholding EJ and the Rule of Law and emphasising the critical connection between poverty, human rights and the environment. WHEREAS during the deliberations the participants of the South Asian countries who have attended the conference on EJ and Equity from June 21–25, 2004, organised by Forum for Justice in cooperation of the Supreme Court of Nepal, have observed with grave concern damage done to the people, environment, biodiversity and intellectual property rights relating to their region and that the disputes and issues in this context are usually unattended to the serious prejudice of the common men and women of this area, and therefore necessity has been felt for the constitution of a commission for this purpose. We resolve that a South Asian Judicial Commission comprising of the Judges and Jurists, aided and assisted by civil society, of the South Asian Countries namely Bangladesh, India, Nepal, Pakistan and Sri Lanka be set up for the promotion of EJ and evolve mechanisms for resolution of disputes
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and issues relating to regional interests including particularly matters of environment, bio diversity and intellectual property rights. We also resolve to improve the capacity of those involved in the process of upholding EJ, such as judges, prosecutors, law officers and public interest lawyers to carry out their functions on a well informed basis, equipped with all the necessary skills, information and materials. We further resolve that Forum for Justice should serve as the initial secretariat until the establishment of the South Asian Judicial Commission.
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Hudson, Barbara. 2003. Justice in the Risk Society. London: Sage Publications. Iliffe, John. 2006. The African AIDS Epidemic: A History. Athens, Ohio: Ohio University Press. Indigenous and Tribal Populations Convention (No. 107). 1957. Adopted by the General Conference of the International Labour Organization on 26 June 1957. Indigenous and Tribal Peoples Convention, (No. 169). 1989. Adopted by the General Conference of the International Labour Organization on 27 June 1989. IPCC. 2007. Intergovernmental Panel on Climate Change: Climate Change 2007: Impacts, Adaptation and Vulnerability. Working Group II Contribution to the IPCC. Iyer, R.R. 2002. ‘Linking of Rivers: Judicial Activism or Error,’ Economic and Political Weekly 37(46), 16 November. Kamal, Mesbah, Ishani Chakraborty and Zobaida Nasreen. 2006. Uttorbanger Adibasir Prantikatar Discourse. Dhaka: Divyaprakash. Kapur, Promilla. 1973. Love, Marriage and Sex. Delhi: Vikas Publishing House. Kelly, Paul (ed.). 2002. Multiculturalism Reconsidered. Cambridge: Polity. Kumar, Arbind. 2002. ‘Tribal Participation,’ Seminar 514, June. Kumar, Arun. 2003. ‘Violence and Political Culture: Politics of the Ultra Left in Bihar,’ Economic and Political Weekly 38(47), 22 November. Kumar, Sanjay and Stuart Corbridge. 2002. ‘Programmed to Fail?: Development Projects and Politics of Participation,’ The Journal of Development Studies 39(2): 73–103, December. Kumar, Sharat and Praveen Jha. 2001. Development of Bihar and Jharkhand: Problems and Prospects. New Delhi: Shipra. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Oxford University Press. ———. 2000. ‘Nation-building and Minority Rights: Comparing West and East,’ Journal of Ethnic and Migration Studies 26(2), April. Louis, Prakash. 2000. ‘Marginalisation of Tribals,’ Economic and Political Weekly 35(47), 18 November. Lucas. J.R. 1980. On Justice. New York: Clarendon Press, Oxford. Maharatna, Arup. 2005. Demographic Perspectives on India’s Tribes. New Delhi: Oxford University Press. Malhotra, Rajiv. 2005. ‘Right to Development: Where Are We Today.’ In Reflections on Right to Development, Arjun Sengupta, Archana Negi and Moushumi Basu (eds). New Delhi. May, Stephen, Tariq Modood and Judith Squires (eds). 2004a. Ethnicity, Nationalism and Minority Rights. Cambridge: Cambridge University Press. ———. 2004b. ‘Ethnicity, Nationalism, and Minority Rights: Charting the Disciplinary Debates.’ In Ethnicity, Nationalism and Minority Rights, Stephen May, Tariq Modood and Judith Squires (eds). Cambridge: Cambridge University Press. Medhini, Laya, Deepika Jain and Colin Gonzalves (eds). 2007. HIV/AIDS and the Law. New Delhi: Human Rights Law Network. Milton, K. 1996. Environmentalism and Culture Theory: Exploring the Role of Anthropology in Environmental Discourse. London: Routledge.
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Morello-Frosch, R.A. 2002. ‘Discrimination and the Political Economy of Environmental Inequality,’ Environment and Planning C: Government and Policy 20: 477–96. Mukherji, Partha N. and Chandan Sengupta (eds). 2004. Indigeneity and Universality in Social Sciences: A South Asian Experience. New Delhi: Sage Publications. Munda, R.D. and S. Bosu Mullick (eds). 2003. The Jharkhand Movement: Indigenous People’s Struggle for Autonomy in India. Copenhagen: IWGIA in collaboration with Transaction Publishers, New Delhi and BIRSA, Ranchi. Murden, Simon. 2005. ‘Culture in World Affairs.’ In The Globalisation of World Politics, John Baylis and Steve Smith (eds). New Delhi: Oxford University Press. NACO and UNDP Report. 2005. Macro-Economic Impacts of AIDS. NACO Report 2006. NACO. 2001. National Baseline High Risk And Bridge Population Behavioural Surveillance Survey: Report. Available online at http://www.nacoonline.org/ publication/42.pdf ———. (ed.). 2005. The Politics of Autonomy—Indian Experiences. New Delhi: Sage Publications. Nagaraj, R. 2000. ‘Indian Economy since 1980,’ Economic and Political Weekly 35(2). Narayan, B. 2001. ‘Heroes, Histories and Booklets,’ Economic and Political Weekly 36(41). Narayan, B. and A.R. Mishra. 2004. Multiple Marginalities: An Anthology of Identified Dalit Writings. New Delhi: Manohar Publishers. Nathan, Dev. 2004. ‘The Future of Indigenous Peoples,’ Seminar 537, May. Ojha, Nabaghana. 2004. ‘Schedule V Areas: Rights over MFP Still a Far Cry,’ Community Forestry 3(3): 4–7, February. Osmani, Siddiqur Rahman. 2005. ‘An Essay on the Human Rights Approach to Development.’ In Reflections on Right to Development, Arjun Sengupta, Archana Negi and Moushumi Basu (eds). New Delhi. Palshikar, Sanjay. 2005. ‘Understanding Humiliation,’ Economic and Political Weekly 40(51), 17 December. Peña, D. 1992. ‘The “Brown” and the “Green”: Chicanos and the Environmental Politics in the Upper Rio Grande,’ Capitalism, Nature, Socialism 3(1): 79–103. Prakash, Amit. 1999. ‘Contested Discourses: Politics of Ethnic Identity and Autonomy in the Jharkhand Region of India,’ Alternatives: Social Transformation and Humane Governance 24(4): 461–96. ———. 1999. ‘Decolonisation and Tribal Policy in Jharkhand: Continuities with Colonial Discourse,’ Social Scientist 27(7–8), July–August. ———. 2001. Jharkhand: Politics of Development and Identity. New Delhi: Orient Longman. Ramamurthy, V. 2000. Global Patterns of HIV/AIDS Transmission. Delhi: Authorspress. Rao, Nitya. 2005. ‘Displacement from Land: Case of Santhal Parganas,’ Economic and Political Weekly 40(41), 8 October.
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Rath, Govinda Chandra (ed.). 2006. Tribal Development in India: The Contemporary Debate. New Delhi: Sage Publications. Rawls, John. 1971. A Theory of Justice. Cambridge, Massachusetts: The Belknap Press of Harvard University Press. ———. 1972. A Theory of Justice. Cambridge, Massachusetts: The Belknap Press of Harvard University Press. Rose, H.A. 1991. A Glossary of Tribes and Castes of Punjab and N.W.F.P. Vol. 3. Delhi: Low Price Publications. Routledge, P. 2003. ‘Voices of the Dammed: Discursive Resistance Amidst Erasure in the Narmada Valley, India,’ Political Geography 22: 243–70. Sagar, Ravi. 2005. Forest Rights of the Scheduled Tribes and Forest Dwellers: The Gauhati High Court Judgement and the Central Forest Bill. Gauhati: North Eastern Social Research Centre. Samaddar, R. 2004. ‘Autonomy and the Requirements of Minimal Justice’, Chapter 5 in The Politics of Dialogue—Living under the Geopolitical Histories of War and Peace, pp. 108–58. Aldershot: Ashgate. ———. 2005. Indian Autonomies—Keywords and Key Texts. Kolkata: Sampark. ———. 2007. Materiality of Politics, Vols 1 and 2. London: Anthem Press. Scheduled Communities: A Social Development Profile of SC/STs (Bihar, Jharkhand & W.D.). n.d. New Delhi: Planning Commission, Government of India. Scott, J.C. 1986. Weapons of the Weak: Everyday Forms of Peasant Resistance in SouthEast Asia. London: Frank Cass. Scott, Jr., George M. 1990. ‘Group Solidarity: Towards an Explanatory Model,’ Ethnic and Racial Studies 13(2). Seminar: The Monthly Symposium. 2005. Special Issue on Forests and Tribals: A Symposium on the Proposed Bill Recognizing Tribals Rights on Forest Lands, Vol. 552, August. Sen, Nandini. 2004. Meanings and Identities of Citizenship: Study on Santhal Tribals in Jharkhand. New Delhi: PRIA. Sengupta, Arjun, Archana Negi and Moushumi Basu (eds). 2005. Reflections on Right to Development. New Delhi: Sage Publications/Centre for Development and Human Rights. Sengupta, Arjun. 1999. ‘The Right to Development as a Human Right.’ Paper written for the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health. ———. 2000. ‘Realising the Right to Development,’ Development and Change 31(3), June. ———. 2001. ‘Right to Development as a Human Right,’ Economic and Political Weekly 36(27), 7 July. Shah, Ghanshayam. 2004. Social Movements in India: A Review of Literature. New Delhi: Sage Publications. Shah, Vidya. n.d. Charting a Strategic Paradigm: Process Documentation for the Midline Review of TIs in West Bengal. Report prepared for WBSAPCS, Swastha Bhavan, Kolkata. Singh, K.S. 1992. People of India: Introduction. New Delhi: Oxford University Press/Anthropological Survey of India.
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Srivastava, S. 1937. Prayag Pradeep. Allahabad: Hindustani Academy. State of Forest Report. 2001. n.d. New Delhi: Forest Survey of India, Ministry of Environment and Forest. ———. 2003. n.d. New Delhi: Forest Survey of India, Ministry of Environment and Forest. Stevis, D. 2000. ‘Whose Ecological Justice?’ Strategies 13(1): 63–75. Sundar, Nandini. 2005. ‘Custom and “Democracy” in Jharkhand,’ Economic and Political Weekly 40(41), 8 October. Symonides, Janusz. 1998. ‘Cultural Rights: A Neglected Category of Human Rights,’ International Social Science Journal 50(158), December. Taylor, D. 2000. ‘The Rise of the EJ Paradigm: Injustice Framing and the Social Construction of Environmental Discourses,’ American Behavioral Scientist 43(4, January): 508–80. Tribal Land Rights and Industrial Accountability: Case of Mining in Dumka District of Jharkhand. 2004. New Delhi: PRIA. Umozurike, U.O. 1998. ‘Human Rights and Development,’ International Social Science Journal 50(158), December. UNAIDS Report 2006. ‘AIDS Epidemic Update’, December. Available online at http://data.unaids.org/pub/EpiReport/2006/01-front_matter_2006epiupdate_ eng.pdf. United Nations, World Bank and Asian Development Bank. 2006. ‘Tsunami-India Two Years After’. Available online at www.un.org.in/untrs/reports/Two_Year_ reports/Two_Year_Report_final.pdf. US EPA. 1992. United States Environmental Protection Agency. Environmental Equity: Reducing Risk for All Communities. Policy Planning and Evaluation. Volume 1: Working Group Report to the Administrator. Vasan, Sudha. 2005. ‘In the Name of Law: Legality, Illegality and Practices in Jharkhand Forests,’ Economic and Political Weekly 40(41), 8 October. West, Robin L. 2003. Re-Imagining Justice: Progressive Interpretations of Formal Equality, Rights and the Rule of Law. Aldershot: Ashgate. Winrock International India. 2004. EJ (a publication supported by the Ford Foundation, New Delhi). Zimmerer, K.S. 2000. ‘The Reworking of Conservation Geographies: Nonequilibrium Landscapes and Nature-society Hybrids,’ Annals of the Association of American Geographers 90(2): 356–69.
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About the Editors and Contributors THE EDITORS Paula Banerjee is the Chair of the Department of South and South East Asian Studies, University of Calcutta and a senior member of the Calcutta Research Group. She is an expert on Indo-American relations and studied in Cincinnati, Ohio. As part of her current work on borders and women, she has authored numerous papers on women in conflict situations in northeast India. She has authored a book on Indo–US relations, titled When Ambitions Clash (2003), and has co-authored a book, Women in Society and Politics in France. She is the recipient of a number of international fellowships including the Advanced Taft Fellowship (1991–93) and has been the recipient of the WISCOMP Fellow of Peace Award (2001). Some of her recent works include Autonomy: Beyond Kant and Hermeneutics, co-edited with Samir Kumar Das (2007) and Women and Peace Politics (2008). Sanjay Chaturvedi is a Professor of Political Science and Honorary Director, Centre for the Study of Midwest and Central Asia at Panjab University, Chandigarh. His area of specialisation is the theory and practice of Geopolitics, with special reference to polar regions and the Indian Ocean. He has been a recipient of several Visiting Fellowships abroad. Professor Chaturvedi is the Co-chair of Research Committee 15 (RC 15) on Political and Cultural Geography of International Political Science Association (IPSA), a member of the Steering Committee of International Geographical Union (IGU) Commission on Political Geography and a member of Calcutta Research Group. Some of his recent works include Partitions: Reshaping Minds and States (2005) and Security of Sea Lanes of Communication in the Indian Ocean (2008).
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THE CONTRIBUTORS Manish K. Jha is Associate Professor in the Centre for Community Organisation and Development Practice at Tata Institute of Social Sciences, Mumbai. He studied naxalite movement and caste violence in central bihar. He has written a book Human Rights: Agencies and Agenda and also contributed articles on ‘Hunger and Starvation Deaths’ and ‘Globalisation and Violation of Child Rights’ in reputed journals. Recently, he completed two studies, namely, ‘Impact Assessment of Resettlement Implementation under Mumbai Urban Transport Project (MUTP)’ for the Mumbai Metropolitan Regional Development Authority/World Bank, and ‘Cooperatives, Livelihoods and Communities in Ladakh’. Besides, he has undertaken several review and evaluation studies for GOs and NGOs. Presently, he is part of a core team which is involved in establishing a centre of the Tata Institute of Social Sciences (TISS) in the north east region which would offer M.A. course in Governance and Development. Badri Narayan Tiwari is a lecturer of Social History and Anthropology at Govind Ballabh Pant Social Science Institute, Jhusi, Allahabad, India. He is also the in-charge of Manav Vikas Sangrahalaya (the museum) and the Dalit Resource Centre placed within the Institutes Centre for Culture, Power and Change. He has been a fellow at University Grants Commission, New Delhi, ICHR and Indian Institute of Advanced Studies, Shimla. He also received fellowships from International Institute of Asian Studies, Lieden; visiting Professor, Massion De Sciences De La Homme, Paris, France; Fulbright and Smuts Fellowships. He writes on issues related with history, literature and other varied aspects of social sciences. His recent publication is Women Heroes and Dalit Assertion in North India (2006). Amit Prakash is Associate Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi. Earlier, he has also served as Assistant Research Professor at the Centre for Policy Research, New Delhi. He has published widely in national and international journals in the area of political analysis, discursive structures of the Indian state, electoral patterns and trends in India and some of its units.
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He is also the author of Jharkhand: Politics of Development of Identity (2001) and Politics and Internal Security (2004) and co-editor (along with Niraja Gopal Jayal and Pradeep K. Sharma) of Local Governance in India: Decentralisation and Beyond (2006). He has recently completed a research project on ‘Mapping Indicators of Governance for India’ funded by the Ford Foundation. In addition to this, his other forthcoming works include Good Governance and Development Policies: A Comparative Study of Uttar Pradesh and Maharashtra, and an edited volume on Globalisation: Social and Political Dimensions.
Index AIDS victims, in East and Northeast India, 33–34, 132 economic effects, of AIDS, 138 female sex workers (FSW), study on, 137–38 gender dimension of, HIV/AIDS, 135, 139 history and spread, of AIDS in Africa, 133–35 in America, 132–33 in India, 136–38 media perceptions of, HIV/AIDS, 140–45 porous border, and women’s sexuality, 140–42 responsibility on, marginal groups, 143–44 security forces, and vulnerability to AIDS, 144–45 Nagaland, politics of marginality and AIDS in, 151–52, 157–58 Dimapur, study on, 152–54 Kohima, situation in, 155–57 prevalence of, HIV infection, 137 separation of, high-risk groups from general population, 140 targeting of, sex workers, 145–47, 153, 155 sex-workers, of Kolkata, 148–51 tribal people, vulnerability of, 139 bataia suwar, 56–57 bataidari system, 56 Bhoomi Sena, 39, 49 Bhopal gas tragedy, 183, 186 chamain, 75 Chamar Vedas, 77
Dalits in UP, and concept of social justice, 31, 66, 91–93 Chamars BSP, role of, 80–81 glorification, of Charmavansh, 78–79 Nara Maveshi Andolan, and consequences, 77–78 oppression and humiliation, history of, 74–76 origin myth of, 76–77 poem, by Dr Ambedkar, 81 professional activities, 73 three generations, and concept of social justice, 82 younger generations, perspective and attitude of, 79–81 election campaign song, in Phoolpur, 67–68 ethnographic study on, 69–70 oral and print media, differences of perception in, 91–92 Pasis, 82–83 communities of, 83 Dalit movement of BSP, involvement in, 87–88 glorious past, story of, 86 humiliation and social injustice, history of, 84–85 occupation of, 83 origin, from Rishi Parashuram, 84 printed literature of Dalits, effects of, 87–88 reservation policies, support for, 88 younger generations, upward mobility in, 87 print media, role of, 80–81, 87, 89–90
201
Index rural society, need of social justice in, 68 perception of, 68–69 Shahabpur, geographical descriptions of, 70, 73 caste composition, of pattis, 70 colonial history, of pattis, 71–72 Damuha-Khagri massacre, 44, 51–52 Damuha village, 44 action and reaction process, 49–50 caste composition, 44 discrimination in temples, fight against, 50 economic injustice and humiliation, 48–49 electoral process, injustice and violence during, 47 gang of thieves, by Rajputs elimination of, 50–51 menace of, 50 injustice and exploitation, by zamindars, 46 mobilisation, process of, 49 fight against, deep-rooted injustice, 51 organisation and struggle, against injustice, 52–54 right to live with dignity, awareness of, 52–53 sexual exploitation, of Dalit women, 46–47 upper caste goons, in political parties, 47 Declaration on the Right to Development, 97–98 Disaster Management Bill of 2005, 172–74 dola pratha, 46 1992 Earth Summit, 183 EJ Networking Forum (EJNF), 165, 166 Environmental justice (EJ), 162–63 climate change, impact on poor and deprived, 178–80 definition of, 166
Disaster Management Bill, 2005, 172–73 pitfalls and major concerns in, 173–74 global warming, government response on, 180 and judicial activism, 176–78 Kathmandu Declaration, 188–89 manual scavenging, practice of, 174–76 National Policy for Natural Disaster Reduction, 171 nature and environment, relationship with, 167–68 origins and evolution of, 164–65 Principles of EJ Preamble, 186–87 SEZ project proposals and, 181–82 and social-ecological justice, 183–86 state, role of, 167 and sustainable development policy, 182–83 tsunami disaster and coastal communities, 169–70 Winrock International India Project, report of, 168–69 ethnic identities claims of, 101 and politics, 101–02 rights and ‘national’ identities right, 101 folk songs, and struggle for justice, 37–38 gohar, 50 Human Rights, 97 ILO’s Indigenous and Tribal Populations Convention, 1957 (No. 107), 98–99 and tribal rights, 99 Indian Peoples’ Front, 39, 40, 49 Indigenous and Tribal Peoples Convention, 1989 (No. 169), 99 Indira Aawas Yojana, 44 Individual and group rights, in Part III of Constitution, 95–96
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Inter-Governmental Panel on Climate Change (IPCC), 163, 178–79
Kathmandu Declaration, on EJ, 188– 89
jan-adalat, 42 Jehanabad, mobilisation and struggle for dignity in, 30–31, 38, 62–64 izzat (dignity) issue, and violence, 42–43 mobilisation of, low caste peasantry, 41 Naxalite groups, influence of, 39–40 political and social structure, 38–39 socio-economic exploitation, of lower caste, 39 senas, formation of, 39, 40 state machinery, failure of, 40–41, 43 struggle and recourse to violence, for social justice (see Damuha village; Noanwa village) violence, for justice, 41–42 weaker sections, condition of, 39 justice in India, study by Calcutta Research Group, 9–10, 20 dialogic route of research, 12 key texts, on justice, 19–20 law and justice, relationship between, 17–18 marginalities and issue of social justice, 18–19 marginal positions and social injustice, origin of, 21–22 method for study, 11 risk society governing in, 23 social justice in, 23–25 security considerations, and justice, 23 social justice and democracy, 10–11 issue, and sovereignty and democracy, 25–26 and political rationality, 21, 27 state of social justice in West Bengal, volume on, 12–17
Lorik Sena, 39 Manual scavenger, 175 nara maveshi, 77 Narmada valley development project, 184 National AIDS Control Organisation (NACO), 136 National AIDS Control Programme, 1987, 136 National Disaster Management Authority (NDMA), 172, 173 Naxalites movement, in Jehanabad, 39–41 Neel Manthan, 72 Noanwa village, 54 administrative failure, to provide justice, 59–60 behaviour of Bhumihars, change in, 60–61 caste/community composition of, 55 location of, 54 mobilisation and struggle, on issue of dignity, 58–59 social and economic structure of, 55–57 weapons and violence for justice, need of, 59–60 Nonhi-Nagwa massacre, 52 Panwara, 72, 85 Prayag Pradeep, 71 Ranvir Sena, 39, 42, 60 Right to Development (RTD), as human right, 98 Sahyog Mahila Mandal and Another vs State of Gujarat, 147 Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, 127
Index Joint Parliamentary Committee recommendations, 127–28 The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, 175–76 The Provisions of the Panchayatis (Extension to the Scheduled Areas) Act, 1996, 123 The State of Justice in India, 9 tribal population, right and social justice for, 32–33, 95, 104–05, 128–29 participation of STs, in developmental processes, 122–23 Panchayati Raj Institutions (PRIs), participation of STs in, 123–26 social justice, for tribals, 127–28 socio-economic development, status of right to, 105 demographics of, ST population, 105–08 displacement and rehabilitation, 120–22 literacy and education, 110–17
203 participation in, productive economic activity, 118–19 sex ratio, 108–09 tribal rights, 97, 102–03 and Constitution, 96 development processes and, 96– 97 ILO’s Indigenous and Tribal Populations Convention, 1957 and, 98–99 Indigenous and Tribal Peoples Convention, 1989, 99 and right to development, 98– 100 right to preservation of their sociocultural distinctiveness, 103 right to socio-economic development, 103–04 Universal Declaration on Human Rights, 1948, 97 VC Public at Large vs The State of Maharashtra and Others, 147
Gulamiya Ab Hum Nahi Bajeibo
Key Texts on Social Justice in India
1
2
Manish K. Jha
OTHER VOLUMES
IN THE
SERIES
Volume 1
Social Justice and Enlightenment: West Bengal, edited by Pradip Kumar Bose and Samir Kumar Das
Volume 2
Justice and Law: The Limits of the Deliverables of Law, edited by Ashok Agrwaal and Bharat Bhushan
Volume 3
Marginalities and Justice, edited by Paula Banerjee and Sanjay Chaturvedi
Gulamiya Ab Hum Nahi Bajeibo
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Key Texts on Social Justice in India
Compiled and Edited by
SANAM ROOHI RANABIR SAMADDAR
SAGE Series in State of Justice in India: Issues of Social Justice, Volume IV
Series Editor
RANABIR SAMADDAR
4
Manish K. Jha
Copyright © Mahanirban Calcutta Research Group, 2009 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2009 by SAGE Publications India Pvt Ltd B1/I-1, Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Ltd 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Inc 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 11/13 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. The assistance of the Ford Foundation in publication of the volume is hereby acknowledged. The views expressed, however, are not necessarily those of the Ford Foundation. Library of Congress Cataloging-in-Publication Data Available
ISBN: 978-81-321-0064-5 (India-HB)
(set of 4 volumes)
The SAGE Team: Elina Majumdar, Meena Chakravorty, Anju Saxena and Trinankur Banerjee Disclaimer: This volume largely comprises pre-published material which has been presented in its original form. The publisher shall not be held responsible for any discrepancies in language or content in this volume.
Gulamiya Ab Hum Nahi Bajeibo
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Contents Series Acknowledgement by Ranabir Samaddar Series Introduction by Ranabir Samaddar
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Section I: Development and Discontent: The Question of Injustice Introduction
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1. Ethnic Politics and Land Use: Genesis of Conflicts in India’s North-East Sanjay Barbora
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2. Contexts and Constructions of Water Scarcity Lyla Mehta
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3. Karnataka: Kudremukh: Of Mining and Environment Muzaffar Assadi
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4. Report of Investigation into Nandigram Mass Killings A Report by Sanhati
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5. Eroded Lives: Riverbank Erosion and Displacement of Women in West Bengal Krishna Bandyopadhyay, Soma Ghosh and Nilanjan Dutta
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Section II: Social Justice: The State and Its Perceptions Introduction
134
6. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005
139
7. The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
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8. The Right to Information Act, 2005
188
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Key Texts on Social Justice ManishinK.India Jha
9. The National Rehabilitation and Resettlement Policy, 2007 10. The Protection of Women from Domestic Violence Act, 2005 Section III:
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Justice: Law and Beyond
Introduction
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11. Illegality and Exclusion: Law in the Lives of Slum Dwellers 263 Usha Ramanathan 12. Illegal Coal Mining in Eastern India: Rethinking Legitimacy and Limits of Justice Kuntala Lahiri-Dutt
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13. Verdict on an HIV Case, Supreme Court of India Laya Medhini, Dipika Jain and Colin Gonzalves
324
14. An Indian Charter for Minority Rights Sabyasachi Basu Ray Chaudhury
334
Section IV:
Women and Marginality: An Issue of Gender Justice
Introduction
374
15. Gender: Women and HIV Laya Medhini, Dipika Jain and Colin Gonzalves
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16. National Policy for the Empowerment of Women (2001) 425 17. Women, Trafficking and Statelessness in South Asia Paula Banerjee Section V:
442
Justice: Marginal Positions and Alternative Notions
Introduction
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18. Voices from Folk School of Dalit Bahujan and Marginalised to Policy Makers People’s Vigilance Committee on Human Rights
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Contents Gulamiya Ab Hum Nahi Bajeibo
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19. Social Assessment of HIV/AIDS among Tribal People in India NACP III Planning Team
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20. Caste is Dead: Long Live Caste G P Deshpande
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21. Tehelka Debate: Beyond Caste Puroshottam Agarwal
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22. Report from the Flaming Fields of Bihar: A CPI (ML) Document
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Section VI: Freedom and Equality, Rights and Social Security: Building Blocks of Justice Introduction
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23. Jungle Book: Tribal Forest Rights Recognised for First Time Nandini Sundar
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24. Informal Sector in India: Approaches for Social Security
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25. Arguments, Protests, Strikes and Free Speech: The Career and Prospects of the Right to Strike in India Rajeev Dhavan
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26. Democracy and Right to Food Jean Drèze
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About the Editors and Contributors Index
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Manish K. Jha
Series Acknowledgement
T
he publication of this series on The State of Justice in India: Issues of Social Justice is the outcome of a two-and- half-years long research and dialogue programme conducted by the Calcutta Research Group (CRG) on the theme of social justice. The research work particularly gained from the dialogues which were painstakingly noted down, edited and later on produced in the form of a report. The report was distributed widely, besides being circulated among the hundred odd persons who participated in the dialogues. The editorial team thanks Kazimuddin Ahmed, Shreyashi Chaudhury, Dolly Kikon, Amites Mukhopadhyay and Pritima Sarma for the work. It also thanks in particular Debdatta Chaudhury, Ishita Dey and Rita Banerjee for their painstaking assistance in producing the volume. In 2003, CRG—with the assistance of the Ford Foundation— embarked on a research programme on some of the critical questions facing post colonial democracies, such as India. Since then CRG has conducted collective research into issues of autonomy and social justice. Three volumes came out of the research programme on autonomy, namely, Indian Autonomy—Keywords and Key Texts (2005), The Politics of Autonomy (2006) and Autonomy—Beyond Kant and Hermeneutics (2007). The method of combining collective research and dialogues continued in this work. While we have already noted that the second research programme followed from the preceding one, this programme was designed in a specific way. It was not meant either to be a philosophical inquiry or a pure political research: the emphasis was on combining critical legal inquiries with detailed ethnographic studies, intended to find out popular notions of justice and their interface with the dominant legal forms. Of course, appropriate theoretical conclusions have been drawn in due course, and these conclusions reflect on relevant philosophical issues as well. Readers will be happy to find that, as on the previous occasion, we have again prepared a collection of key texts—this time on social justice. Besides, soon there will be an online compendium of Keywords on Social Justice.
Series Acknowledgement Gulamiya Ab Hum Nahi Bajeibo
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The editorial team collectively thanks Ford Foundation and Bishnu Mohapatra in particular for their support all through this exacting and at the same time exciting work, including this publication. Finally, the team thanks the authors and all those who participated in the review discussions. Their mutual encouragement, discussions and suggestions were critical for this difficult enterprise. Ranabir Samaddar Calcutta Research Group, Kolkata
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Series Introduction The State of Justice in India RANABIR SAMADDAR
I
T
his four-volume series is a report on the state of justice in India. In the by now established mode of collective research, which is dialogic, empiricist, yet imaginative, and has thus become well known within a relatively short period of time, the Calcutta Research Group (CRG) has come out with another study on post colonial democracy, this time on the aspect of justice obtained in democracy, that is to say, the limits within which democracy will permit justice, social justice in particular. Readers can take this study as a report card on social justice in India, titled as The State of Justice in India: Issues of Social Justice. Readers, in pursuing this four-volume series on justice, may, at times, think that we are conflating democracy with justice; they may also think that we are confusing justice with rights, or at times with law or with equality. Or, they may even think that we are overwhelming the idea of justice with our notions of social justice, burdening it with too many ideas, realities and expectations. In thinking of the CRG study in this way the readers are not all that wrong. In fact this thinking reflects a reality of our time, namely, that if the society of the propertied weighs everything with money and transforms everything with the Midas touch of money, the society of the subjects weighs everything with the criterion of justice—law, government, delivery mechanisms of administration, punishment, peace, war, reconciliation, revenge, reprove, relation with the rulers, historical memory, everything that affects the subject’s individual–collective life fraught with different socio-political issues. The idea of justice, we can say, is the great supplement of our time. Hence, the theoretical and empirical extent of this
Series Introduction
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inquiry into the state of justice in India makes the inquiry tantalising. It approaches the various spheres of justice, yet recoils from defining what social justice is; likewise the terms of reference in this research are clear, yet the inquiries are always leading to unexpected paths. On going back through the volumes, particularly the documents collected in the fourth volume, it seems to me that the study leaves a sense of something still remaining undefined, un-enumerated, and therefore the entire series is, as if, delicately perched on an abyss between the governmental notions of justice and the popular notions of the same. If we were to be faithful to the realities of justice, we could not have quarrelled over its definition beyond a point and laboured it to death. Is justice then fundamentally a response to what is perceived as injustice, as reaction or as an idea better understood as a negative notion (the other of injustice), or understood properly only when taken as response to injustice? The volumes suggest to certain extent such an answer, hence is the prominent idea of the inexhaustible nature of the phenomenon, as the various ethnographic and analytic commentaries testify. Yet there is something to this manifold nature of justice, which we can put concretely only to its forms, such as attainment of dignity, or reconciliatory, or retributive, or say, instant, restorative, restitution, distributive, allocation-centric, pardon, sentencing, redress of historic injustice or rational. These forms indicate the particular ways in which ideas of justice respond to various conceivable situations, where these ideas bring to mind certain injustices committed as well as some positive principles and practices forming the foundations of these forms. Hence we have decided to cast our explorations in an agenda of four engagements: The first volume is titled Social Justice and Enlightenment: West Bengal. The second volume is titled Justice and Law: The Limits of the Deliverables of Law. The title of the third volume is Marginalities and Justice. Volume four is titled Key Texts on Social Justice in India. Cast in an archaeological mode of inquiry, we wanted to see the layers in the practices and discourses on social justice, and how time, place, history, perceptions, arrangements or apparatuses (such as legal, judicial, constitutional, administrative apparatuses) play significant roles in influencing the regime of social justice, that is, the ideas and practices making this regime. We also wanted to find out the conflicting discourses and actions in securing justice, and see how the
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conflicting terrain of social justice makes conventional democracy unstable, because while democracy depends greatly on mass uniformity, constitutional unity and primacy of rule of law over other modes of regulating life, the contentious politics of justice creates deep fissures within these uniformities and primacies. Archaeological inquiry brings out these forms, fissures, levels, overlapping and conflicts. To say the least, these four volumes establish that the field of social justice is extremely contentious, hence dynamic. But these volumes make a more significant point, in fact a lesson for democracy, that is, that conventional democracy (in the sense of conventional democratic theory or in a regime sense, that is, the institutional profile of standard Western democracies) had little room for considerations for justice, while it had more room for liberty, fraternity and equality (that is to say, a theory and institution of membership of a national society, called citizenship, and formal equal membership of a collective). Yet post colonial experiences of democracy show that the widening and deepening of democracy take place through the dynamism that can be sourced to yearnings for social justice. This is the milieu in which rights have appeared always as claims for justice and collective politics has revolved around issues of injustice/justice. In this milieu, freedom, equality, liberty, care, protection and similar other principles of political society are weighed on the scale of justice. Yet, democratic theory has no clue to the way this can be theorised adequately. These researches not only point out the fundamentally unsettling nature of the question of justice, but also the possible ways in which democracy can take the issue of justice as one of its essential parts, which can, as a consequence, propel democracy towards becoming more democratic. For such a research agenda, studying liberal institutions and liberal theories would not have been enough; nor would setting up of prior principles for a positive notion of justice have been the appropriate way. Historical as well as ethnographic studies are needed in order to know the details of popular notions and practices of justice, the discursive reflections, the contrasting realities of governmental and popular justice and, most important, the variety of marginal situations which produce ideas and claims for justice. Taken as a whole, this series is an argument for an appropriate method, on which we can here comment a little more. The fact is that justice in high philosophy has been ever a prestigious theme. It has signalled the inscrutable philosophers’ and logicians’
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argumentations about nyaya (logic, principle, justice, equity, fairness, and so on) or as in the West, from Plato to Rawls and beyond, a discourse of order and management of inequalities and stations in life. The question faced in the beginning is: is this high route appropriate for the archaeological task we set for ourselves? We chose a more historically and ethnographically oriented route that was suitable for our task of mapping the various existing notions and practices of justice and their respective backgrounds, and our method as demonstrated here can be at best called guerrilla work in philosophy, because it subverts many philosophical assumptions without it putting on a philosophical garb. These ethnographic-historical studies have produced analysis from within. We did not adopt any pre-meditated analytical strategy. Thus several unexpected questions came out of our justice dialogues, which formed an essential part of our research mode, and they determine to a large extent the plan of this publication. In fact the three dialogues held at various places of the country influenced the research agenda, procedure, findings and consequently this fourvolume report.1 Those who have accessed the report will have an idea of how this dialogic route of research influenced the study.
II I do not want to anticipate here the editorial introductions to the four volumes. But we can briefly take a look into the features of our inquiry as contained in these four volumes. The first volume presents four chapters on the state of social justice in West Bengal. Based on ethnographic studies, they present scenarios of injustice, which not only form the context of justice and shape the specific local discourses of order, governance, rights, claims and justice but also mark two significant themes characterising our entire inquiries. The first is the theme of the local. The volume tells us that, while we can always say that there is a general regime of justice (particularly when we look at the scenario from the capital city, where we find the seats of the court, the main organs of the rule of law, administration, government, schools of justice, juridical training and so on), the local acts itself out at times, violently, and local perceptions of in/justice may be modelled spatially precisely along the line of distancing from the metropolitan. Rule of
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law as the main mechanism of justice makes little sense to these specific local practices. But this takes us to an even more significant point. Why is it that in West Bengal, known as the land of enlightenment, a standardised language exercising hegemony over the entire state, domination of the upper and middle castes quite well spread over the state, and a long established court system (the place where the colonial rulers established the first seat of the highest court in India) we have these pronounced assertions of the local? Or, why is it that, notwithstanding this enlightenment, of which citizens of West Bengal are justifiably proud, the archaic rule of law remains fundamental in state governance so that nobody is held accountable for hunger deaths, or caste discrimination, or the deep backwardness of the minorities, marking large areas falling outside the core rice producing areas of the state (the core rice producing areas are: Burdwan, Hooghly, North and South 24 Parganas, Nadia, Murshidabad and East Medinipur)? We have thus incorporated in this volume the study of a colonial act that still persists. It seems that West Bengal presents for us two classic questions on justice, namely, what constitutes the social of social justice? And therefore, what is in this idea of social justice that cannot be exhausted by governmental gaze on justice? Also, what are the contests that mark the field of the social? Clearly, there is a strong disjunction between the political career of enlightenment, on which the constitutional Left in West Bengal has thrived for several decades, and the career of the idea of social justice. Indeed, the West Bengal experience demonstrates that while democracy may widen as in several parts of the country, including West Bengal, through mass entry of workers and peasants and the rural and urban poor, and this may indeed facilitate long denied political justice for them (like rights of unionisation and so on), this does not ensure social justice per se. What is more ironic is that the champions of political democracy, like the official and ruling Left parties in West Bengal, may not even recognise, and therefore acknowledge, that political democracy does not ensure social justice automatically. They may even say, as recent experiences of the state verify, that the struggles and contentions for social justice are counter-productive for the democracy they guarantee, because these contentions target the hegemony of the political class, overwhelmingly coming from upper/ middle caste, liberal, leftist background. This hegemony they think
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is essential for the democracy they have ushered in, or have widened. They may also say that ‘narrow’, local ideas of justice actually injure celebrated concerns and ideas of national progress and security. In this perspective we can recall the situation in West Bengal in September 2007 when unrest over the inadequacy of essential supplies of food grains in fair price shops spread over a significant part of rural Bengal. The unrest brought before us these two worlds: one of enlightened concerns about the nation, and so on, and other of local, immediate, material concerns—concerns that are articulated as demands of justice. The events dramatically demonstrated the bifurcated world of concerns of the nation and the very immediate concerns of justice. Reports spoke of a man being killed and dozens of people injured in the district of Birbhum in the last week of September 2007 after hundreds of people clashed with police, accusing authorities of hoarding food stocks meant for the poor. Poor villagers said that subsidised food grains and sugar meant for them were being diverted to regular markets and sold at huge premiums by corrupt PDS officials. At least 100 people, including dozens of policemen, were injured in clashes in the week in late-September–early-October 2007 in the state during protests against what locals said was widespread graft in the government’s public distribution system (PDS). One report quoted Peeyush Pandey, the district police chief of Burdwan, where trouble broke out in that week, ‘We have deployed a massive police force and are trying to bring the situation under control.’ Witnesses said one protester was killed when the police opened fire to disperse a mob, but police said they were still investigating how he died. The incident occurred in Ketugram in Burdwan district when irate villagers laid a siege on ‘ration dealers’—as PDS agents are commonly referred to—and demanded compensation from them for insufficient supplies of wheat and rice. A police contingent rushed to the spot and rescued the ration dealers. Angry at the police action, the villagers attacked the houses of ration dealers and hurled stones at the police. They also set fire to police vehicles. As things went out of control, police first resorted to a baton-charge and then opened fire. Ayub Sheikh, a protester, was killed in police firing outside a block office in Lavpur area of Birbhum district, when political leaders inside were discussing the spreading agitation. Arson, looting and ransacking of ration shops were reported from several areas in the district, around 128 km from Kolkata.
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The same report quoted the police as saying, ‘Ration dealers and their families are being given adequate protection.’ Protests against corrupt ration dealers continued to rock the heartland districts of Birbhum, Bankura and Burdwan. Trouble had first broken out on 16 September, and then rapidly spread. Everywhere PDS dealers were accused of privately selling off government-subsidised wheat and rice at higher rates. In Mayureswar of Birbhum district, about 250 km from Kolkata, the houses of six ration dealers were set ablaze and their families assaulted. Villagers also looted property and food grain. One political party, the Socialist Unity Centre of India (SUCI), called a 12-hour strike in the district to protest against corrupt ration dealers, but it was later withdrawn at the behest of local leaders. Protests were also reported from Bankura district. Security forces led by Inspector General of Police (Western Range) Arun Gupta tried to cope with the situation even as consumers looted the shop of a ration dealer near Kirnahar bus stop in Birbhum district. Reports also spoke of villagers trying to set fire to grain storage depots and police vehicles, saying they were starving. Dozens of PDS franchisees surrendered their permits out of fear and police said they were investigating all allegations of hoarding. In this context it should be recalled that earlier that year, an inquiry by the Central government found that most of the rural poor in five states were not getting subsidised food supplies regularly. It found that only 10 percent of the rural poor were getting regular supplies in dozens of remote villages of West Bengal. Yet it also has to be recalled that around that time, one newspaper reported the Chief Minister as saying that Bengal would have two more small airports soon (Business Standard, 3 October 2007), and that Air France was keen to operate flights out of city. Yet, in the wake of the trouble in the countryside, the same newspaper also reported that West Bengal’s poor track record on the theft of public grain was second only to that of the northern state of Uttar Pradesh, and Reliance, the giant conglomerate of everything saleable, had cut its troubled retail plans further. The irony was clearer when faced with shortage of food, the people of a village in Bankura let out their anger at a protest rally organised by the CPI (M) against the nuclear-deal, saying they wanted food and not nonsense. Villagers also beat the local Left leaders. Nearly a thousand villagers clashed with police, forcing the latter to open fire.
Series Introduction
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A schoolboy (16) and another man (23) were injured in the police firing. Nine other villagers were injured in the baton-charge. They were admitted to hospital. As the news of violence at the CPI(M) meeting spread, violent protests against ration-dealers were reported from elsewhere in the district. State CPM Secretary Biman Bose admitted that the Left’s stand against the Indo-US nuclear deal lacked the force of bread-and-butter issues and would be difficult to sell as a campaign issue to an electorate. Meanwhile, what was happening in the official world of politics and the academia? The ruling party, the CPI(M) accused the Trinamul Congress, Congress, BJP and the Naxalites of deliberately trying to disrupt the ration system in the state. The welfarist, liberal, developmental economist, Professor Amartya Sen, found nothing wrong in forcible acquisition of land of the peasants by the West Bengal Government, and assured the people that in due time industrialisation would solve basic poverty as it had done elsewhere, even if meanwhile poverty increased due to forcible dispossession of land. 2 The question that comes out of all these reports is: what do the ‘ration riots’ in West Bengal, as they are remembered now, signify for the discourse of justice, particularly social justice? Readers will have to go through all the four studies presented in the volume to get a fuller answer to the question posed here. The second volume works on the relation that exists between law and justice in India. Once again, the strategy has been to go into specifics that will tell us of the formations in which justice and law have hitherto related to each other. Therefore, the second volume begins with a description of how in the moment of constitution making our legislators had engaged in the discourse of justice in a particular manner that enabled them to separate the issue of justice from other issues of democracy, political power and citizenship, so that the Indian Constitution, while it spoke of justice, never integrated it with other issues of the political society it was building. Therefore provisions of justice—and this is a point that CRG brought out in its researches on autonomy also (Banerjee and Das 2007, Basu Ray Chaudhury et al. 2005, Samaddar 2005)—remained as an adjunct, a provision of special nature not applicable to all, and therefore thematically sub-merged in many other things belonging to the constitutional domain or
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theoretically dissoluble in the mainstream of constitutional thinking. The Constitution insofar as it laid down the profile of fundamental legal justice was the other scene of that reality where political justice made sense only when it had addressed issues of social justice, and popular politics made sense only in the mirror of popular perceptions of justice. All these can be termed as the phenomenon of the ‘justicegap’, which means a gap between claims for justice and governmental (including legal and juridical) regime of justice. The volume thus, as if in a continuing narrative, takes up the issue of reservation in a major way through two long contributions—one documenting the history of reservations in India in the context of political contentions, mass politics, elections, judicial activism and policy games, and the other that shows how the policy game goes on in the language of courts and law. Yet both of these contributions indicate how the issue of justice remains inextricably bound up with the issue of expansion of democracy—a ‘state of exception’ for democracy, because democracy widens not, as we are told historically, through calls for liberty or laissez faire or economic liberalism or individual freedom or even nationalism, but through calls and claims for attaining or ensuring social justice. Indeed, the volume demonstrates that a legal system, whose main task is to rationalise, encode and enforce sovereignty, cannot deal with calls for social justice in its manifold forms, including the form that calls for an end to the repression of sexual freedom under a patriarchal legal regime, or for delivering justice in transitional situations which often make the dispossessed (dispossessed in the wake of the so-called transition to industrialisation and globalisation) the victim. Can we say then, on the basis of this report on the state of the relation between justice and law, that the gap remains never fully bridgeable; and to the question then of what constitutes the social in social justice, can we say that the social (in the context of justice) is what remains beyond what is governmentally constituted, administratively constituted or constituted by considerations of rule (that is, considerations of territory, security and streamlining of people into population groups)? May be that too is social justice, yet clearly in the domain of social justice we have no consensus. Conflicts abound. On the question of what constitutes the social of social justice, the mystery deepens and then resolves in the third volume, which is
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on marginalities and justice. Marginalities indicate marginal situations, marginal actors, processes of making segments marginal, techniques of producing marginal situations, the asymmetric power play in society, but more than all these, marginalities indicate strategies of inclusion, exclusion, differential exclusion and, most important, techniques of turning spaces into marginal enclaves—and all these in the interest of effective government. In this dynamic field (because while the government addresses one issue of marginality, its governing techniques produce other marginalities), the claim for justice is a product of marginality. Power meets its other in the issue of justice. In the social imaginary of justice, governmental politics is thus apprehended as its other, as its absence, as the void in a relation that was producing power. Marginality produces counter-power—and this is a play produced purely through the diagram of space configured through disciplinary and governmental apparatuses. Marginal positions are positions marginal to operations of power—positions that are produced by the operations of power. Therefore, issues of public health suddenly bring to surface situations and positions of marginality in relation to operations to govern society. Dalit communities may have marginal positions within. Marks of violence may signal the marginal positions in society, because only violence may indicate how the marginal may strike back at the heart of the empire. In short, as the third volume demonstrates, justice may emanate from the dynamics of marginality, and this not a spatial given once and for all, but a spatial dynamic produced incessantly from the operation of a grid of power that wishes to rationally govern the society by compartmentalising it, disciplining it and controlling the flows that mark it. Therefore the same governmental techniques which, to some extent, may address issues of social justice, such as positive discrimination, may produce marginal positions out of their operations. Justice is thus, what I indicated in the beginning, something that tells us of the existence of a remainder; it characterises a void; it demonstrates what remains outside the operations of governmentality. It speaks of arrangements of social spaces. The remarkable chapter on AIDS, marginality and issues of social justice addresses the heart of the matter. The fourth volume is a compendium, whose nature is again governed by the framework of this research. It contains certain key texts.
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These texts hopefully will bring out the relational nature of justice, as also the fragmented nature of its existence. They will also tell us as to why we cannot retain in our political idea the full-blooded nature of sovereignty when we want that society should fully ensure justice. This is of course a problematic posed by the paradoxical relation between law and justice. Each document, say, is an appeal for justice—appeal to the state to ensure justice, appeal to ensure effective legal delivery mechanism; on the other hand, each document is a manifesto that law is not ensuring justice, that state actions fall short of ensuring justice, indeed state actions cause injustice. You need order that will be the form of justice; yet this order will soon appear to the society of subjects as causing injustice to some sections therein, specifically those sections that find themselves now marginally situated consequent to the operation of order. Justice is perched on that great meeting point— of the operation of law and order and the process of subjectivation, when the claims of the subjects must take the form of being just, that is to say, these claims will have a permanent relation to law and order, yet will always seem to emanate not from order, but from what lies beyond, that is, in ethical-political claims. With attainment of rights, thus, subjects can say that justice has been done, in fact with the right to justice, the subject has attained agency. With claims for social justice, we can say, the subjects of justice have made their political intention of going beyond the legally mandated nature of political society even more clearly. This four-volume report aims at telling its readers the conjunctional nature of justice in India. In the framework of enlightenment, law and social marginality the report shows how justice fares. This is a selective approach. Even 10 volumes, structured along the line of describing the state of justice in India state by state or issue by issue, or institutional organ by organ, or form by form, would not have been adequate; not even 20 volumes. We have gone for a select report. However, this method should now prevent us from coming to grips with the issue of social justice in a democracy, which would mean, to repeat, finding out what constitutes the social of social justice, how law fares in delivering justice, how violence becomes an essential part of the popular notion of justice and how the dynamics of justice is linked with the emergence of marginal situations, and therefore in the light
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of all these, how to read texts of justice. All in all, this is a report on the conjunctional nature of justice in India, and the specific questions that it poses for democracy. The fourth volume is particularly meant for future researchers and students, who hopefully will benefit from the work already done by CRG in this field. It follows the standard practice of CRG in setting up its research goals.
III Yet, the summary of these findings is not just a summary—it leads to something more to which we can move our attention. The principal one of the specific questions—and I have hinted at quite a few in the beginning of this introduction—is namely, if democracy is destined to be tied in the near foreseeable future to the rules of governmentality, how can it inhere justice at the same time, whose foundations are perched, as these volumes show, on the intersection between governmental forms and the forms that lie beyond the politics of government? Social justice is that genre of justice that is not exhausted by the prevailing governmental forms of justice, namely all those that are enumerated by law, administrative order, court order, policy resolution in official circles—in short, what is termed as ‘political rationality’. If we have tried to engage with the question as to what is social in social justice, here is another engagement marking this inquiry you may say from the opposite angle, namely, what makes this social an issue of justice, which can mean fairness, equity, verdict, guarantee, recognition, dignity, punishment, pardon, reconciliation, compensation and, in cases, even innovation—all these forms depending on the particular ways in which these two components of the appellation called social justice (social and justice) are being defined at the moment of the meeting of the governmental and the supplementary forms. In fact, as the chapters on AIDS (Volume 3) and the court discourses on reservation (Volume 2) show, some of the issues of our life become social because they raise the question of marginality and therefore, of justness. Likewise, these issues become issues of justice because they have refused to be exhausted by governmental (which includes the juridical) ideas
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and practices, and have become social. In this contentious dialectics we can locate our histories of social justice. This probably needs to be explained a little more. How do marginal positions arise? The governmental obligations of modern rule, as Michel Foucault showed, arise from the necessity of governing effectively the sites of the ungoverned, therefore turbulence and risk, namely one’s own soul, family, kingdom, territory and people. Governing the soul results in the science of ethics and morals; governing the family adequately results in economy; governing the territory results in security, and governing the people results in the sciences of the population (namely economics, demography, statistics, juridical science, political science, human geography, urban studies and so on) (Foucault 2007). I think for us what is instructive in this observation is not that this just happened, but that the dictates of the sciences of caring of the self, governing the family well, similarly ruling the territory, taking care of security considerations and, above all, the population, resulted in a massive reconfiguration in the power diagram where marginal positions would be created with each act of governing, because governing would become essentially a fragmenting and dismembering task, the calculation of rational means and ends in this way producing and meeting its dead ends. Since the sovereign would not now intervene at each and every stage, for that would be impossible given the complexities of a modern society (economy, food production, ‘overpopulation’, right size of territory, right kind of people, public health, public education, equal conditions, individual freedom coupled with social segmentation, social stratification, class, caste, race and gender divisions, and so on), the art of governing would have to ensure justice also, even if that meant producing social injustice. Thus, while during the colonial time, the cry for freedom reflected the demand for justice, by the time the Constitution was being made, the nature of the demand for justice had changed. The Constitution could not be content with saying that attainment of freedom was justice achieved, it had to now demonstrate in its body of provisions as how justice had been or was being vindicated in each of conceivable marginal position—thus you have references to caste, problem of equality, just division of resources, just exceptions, just compensations, just policies towards minorities, and so on, so that the Constitution could
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claim that freedom meant justice for marginal positions. In a sense then, we have here the age-old question of politics: can the sovereign be content with dealing with obedience and the problems of control, or will it have to devise ways of governing people, habitations, circulation of people, money and commodities and, with all these, the territory in which the population resides, habitations exist and circulation of money, goods, labour, capital, information, and so on, takes place? It seems, for instance, from a primary reading of the Indian Constitution, that the issue of justice appears to the sovereign as an extraneous one, not intrinsic to rule, though advices to the sovereign have been always that the sovereign must be just towards his subjects. Thus the problem for the Indian Constitution was not simply laying down certain advice to the sovereign, but also erecting rules of government, which meant among others the rules for ensuring justice for those who occupy marginal positions. It is in this moral framework that the great encounter between the governmental forms of justice and the popular ideas of justice takes place. In a more precise and institutional sense, the court, the executive, the legislature, the bureaucrats and the policy makers—all start discovering the limits to ensuring justice. All start saying now in defence of the limits that justice must be balanced with considerations of security. Security means taking care of and avoiding risks. But that means calculating certain possibilities as risks. What is risk? There can be inflation, food crisis, weakening of borders, infiltration, depreciation of currency, bank failure, weapon failure, intelligence failure, spread of gun and criminal activity, environmental catastrophe, weather failure, climatic disorder, widespread entry of travelling mass diseases such as the Severe Acute Respiratory Syndrome (SARS), brain drain and internal disorder leading to civil strife. All these are risks to the government. Governing in risk society would mean engaging with risks, reorienting policies, ensuring security, so that risks can be calculated and mostly avoided. This is precisely the governmental business that proceeded from the 1950s in India. The governmental frenzy with risks of course reached its climax in the late 1990s when in the span of a decade it came out with at least seven policies (rehabilitation and resettlement, information, food, minimum wage, agricultural insurance, national security and coping with national calamities) aimed at coping with risks flowing from nuclearisation
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of weaponry, opening up of the national financial and commodity markets and liberalisation of controls. But this task of taking care of security would soon come into conflict with the other task of governing, namely ensuring justice. To the government the question meant, what would constitute justice in a risk society? As a result we have now endless debates as to how these two considerations can be balanced. In a fascinating chapter on Jharkhand (Volume 3) the research shows how what years ago was a cry for justice, namely self-determination of the Adivasis and thus the demand for separate statehood for Jharkhand, now changes with time and today the cry for development has become the other name for justice. But if this shows how in many cases the governmental form acts as the model, the volumes also show that social justice is often perched on the intersection of the two varieties, which in a conflictual combination make up the philosophical and moral framework, within which justice—its manifold perceptions, practices and institutions—operates. One thing is true at any rate that demands for social justice go against economics and the very economic idea of free circulation of merits, men and resources. We have in this corpus of writings a genealogical account of the Land Acquisition Act (Volume 1), which shows how, on the strength of economic logic, naked dispossession of people of their land and other resources have continued for the last two centuries, and the enabling instruments have been this Act and its preceding and following legislations. The economic logic would be to allow freedom to begin because freedom does not begin anywhere by itself. But the economic logic and the governmental obligation to institutionalise freedom, however, soon comes up against other governmental obligations, one of which is to keep the society calm so that the risk of civil disturbances does not become immense. Hence, you may have the declaration of a National Emergency as in India in 1975—a classic risk situation—when the government is faced with the risk of social inequalities and social protests going out of hand, and therefore cannot allow the society to continue along the lines of laissez faire, the cornerstone of liberalism, and has to intervene in a pronounced way. Indira Gandhi’s Twenty Point Programme was an attempt to combine the sovereign’s power and governmental responsibilities. The sovereign has to keep the territory and the population secure under its
Series Introduction
25
unquestioned power and control, the government has to ensure that all relations that affect the rule, that is, behaviour or conduct of the subjects, are governed properly. Governmental justice, the classic example of which was the Twenty Point Programme, emerges in such a milieu, its apparatuses are forged under such condition, and if we recall the ideas of developmental administration and judiciary that emerged in the mid-1970s in India, we can see the permanent dilemma for the government. Courts too swing in mood in that dilemma: should they be an apparatus of security (of the sovereign, interpreted as the nation) or should they help the task of governing? They cannot, of course, avoid either of these two tasks. Hence, the periodic convulsion in juridical thinking with which we are now all too familiar. Because social justice cannot be bought by market mechanism (individual justice can be—if you have money you can escape caste discrimination in an Indian village or town and settle elsewhere), the government is therefore ever at a dilemma—how to intervene, how much to intervene, how to control, how much to control, how to leave and how much to leave to economic mechanisms? Administration of things is thus never an easy task for the government, who has to know the correlates of evil and freedom, and is thus always in the need of knowledge of something we can call as the physics of power. The general form of mechanisms of security and normalisation are never enough in such a conundrum. We shall eternally ask, should the criminal be kept long enough in jail to keep the society free of crimes, or should the criminal be set free once he has been indicted of crime, since thereby we have satisfied the requirement of justice ?3 What would social justice mean in a risk society, which requires government of all relations and themes in a micro-regulated way? From the point of normalisation then social justice becomes a hindrance, though precisely for this reason, social justice becomes a motor for popular democracy. It disturbs the relation between politics and strategy, government and the sovereign, responsibility and freedom and normalisation and risk. Considerations of social justice mean, as these researches show, reflections on the sovereign, ways of rule and the sciences of government. But more significantly, these considerations would mean at least openness of the discourse for claiming redress for the wrongs done—a recognition of the wrong, a provision of redress, a
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guarantee that the wrong would not be repeated, custodianship of the corrections done, and an attitude of innovation or openness towards creating new mechanisms to act as guarantee that the wrong would not be repeated. This is what I have described elsewhere as minimal justice (Samaddar 2004). The argument for minimal justice has implications for the theory of sovereignty. Democracy could not make a dent in the theory, possibly that was not its purpose also. Nationalism and popular sovereignty— both closely related with the history of democracy—brought the juridical form of sovereignty into sharper focus, though both brought the imperative of government also closer home, as under nationalism and popular sovereignty the sovereign was to be close to the people, and was obliged to constantly explain that the sovereign was for the subjects, and intended their welfare. Yet, we must remember that even though democracy grew up under the aegis of these two, governance was never strictly its main occupation. It was a science to be practised by the experts employed by the sovereign. Democracy occupied itself with the issues of rights and law, but left the matter of ‘administration of things’ to the government. Thus democracy never raised the issue of the sharing of sovereignty—realising those forms, which would enable democracy to install popular governance at the lowest level in each sphere of life, autonomous arrangement for self-rule and an interaction of autonomies in a society reorganised along the lines of autonomies. With the clamour for social justice now marking democracies, the liberal theory of the state cannot easily incorporate those demands within its theory of sovereignty regarding the state, or within its theory of government based on a view of laissez faire, in which market mechanisms must be given as much space as possible to keep things flowing or circulating with ease. Social justice does not eliminate the problem of sovereignty; on the contrary it makes the problem more acute than ever. It now obliges the sovereign to become the great trustee of a mechanism called the administration of justice. Its freedom is curbed. It now has responsibility and an obligation to explain. This is where sovereignty and democracy start parting ways, because social justice, as these volumes show, raises issues ranging from legal pluralism to development, dignity and compensation, to contests around marginal positions. The art of government cannot save the sovereign from the challenges facing it.
Series Introduction
27
In a way through the emergence of the issues of social justice that now mark politics in a big way we have a reconstitution of the history of sovereignty. The state of justice, born in the feudal age and characteristic of the territoriality of that time, corresponded to the society of customary and written law. Then came the state of regulation, government, laws and controls, which mark the modern time, corresponding roughly with the society of industrialisation, mass population, developed trade and market mechanisms and risks about our biological lives stemming from famines, starvation, security threats, currency crisis, mass disasters and so on. This state of regulation and government would be happy to be engrossed with issues of security and population. But the question of justice becomes a question mark in this neat history of transformation of the state. The reason is that issues of social justice on one hand do not allow the sovereign to leave everything of daily administration in the hand of the government; it has to intervene as an exceptional power to ensure justice (once again recall the proclamation of National Emergency in India in 1975); on the other hand, the government is compelled to devise newer and newer techniques—based on a combination of legal and semi-legal modes—to satisfy the demands for justice, which its own governmental forms had in the first place given rise to. Neither the elevation of government to a sovereign position nor the governmentalisation of the state proves to be the solution. Social justice presses democracy to escape the closure imposed upon it by these two transformations—one or the other. The sovereign, suzerain, lord, landowner, priest, master, administrator, legislator and the judge—all have had their own specific ideas of how to administer justice, and governing justice has become a specific activity. In this, the policing, prosecuting, trying, sentencing, jailing, interning, expelling, imposing penalty and finally killing—all have specific roles. All these are meant to combat risks of delinquency, murder, theft, illegalities, violence and all that threaten life and society. If this is the reason of the state and governance, it is clear that reasons of both the sovereign and the government lean heavily on functions of security so that social circulation continues unimpeded (Recall the confinement of the AIDS patients). As I have pointed out, this in the long run injures the legitimacy of the sovereign, because the sovereign
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was to rule for the benefit of the subjects. Social justice shows that police and justice, meant to go together, cannot go together. Political rationality fails, because the co-existence of the reasons of the sovereign and those of the government is disturbed with the emergence of the issues of social justice. Social justice is thus a specific domain—perched on the cleavage between the two rationalities—of analysis and knowledge on the one hand, and intervention on the other. The truth of justice cannot make peace with the truth of politics. Governmental negotiation of issues of justice is shown in this collective research as not something transcendental. The more governmental power assumes microform to settle issues of justice, the more justice eludes the governmental regime (even enlightened administration, as shown in Volume 1, cannot escape the paradox of governmentality while it thinks it has addressed the issue of justice satisfactorily) and becomes an issue that is even more marginal in its position in society. That is why this series required a combination of case studies built on the theme of law and democracy’s engagement with issues of social justice—issues that owe their genesis to marginal positions in society and have not been exhausted by governmental rationality.
NOTES 1. For an account of the CRG dialogues on social justice, please see, http://mcrg. ac.in/Dialogues_on_Justice.pdf. 2. I am drawing from reports in several newspapers published at that time. The particular report I have referred to in the preceding two paragraphs is from the bulletin archives of
[email protected] (n.d.) 3. See for instance the discussion in Hudson (2003), especially, pp. 203–26.
REFERENCES Banerjee, Paula and Samir K. Das (eds). 2007. Autonomy—Beyond Kant and Hermeneutics. New Delhi and London: Anthem. Basu Ray Chaudhury, Sabyasachi, Samir K. Das and R. Samaddar (eds). 2005. Indian Autonomics—Keywords and Key Texts. Kolkata: Sampark.
Series Introduction
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Foucault, Michel. 2007. Security, Territory, Population—Lectures at the College de France, 1977–1978, trans. Graham Burehell, pp. 55–114. Basingstoke, Hampshire: Palgrave MacMillan. Hudson, Barbara. 2003. Justice in the Risk Society, pp. 203–26. London: Sage Publications. Samaddar, R. 2004. ‘Autonomy and the Requirements of Minimal Justice’, Chapter 5 in The Politics of Dialogue—Living under the Geopolitical Histories of War and Peace, pp. 106–58. Aldershot: Ashgate. ——— (ed.). 2005. The Politics of Autonomy—Indian Experiences. New Delhi: Sage Publications.
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Gulamiya Ab Hum Nahi Bajeibo
SECTION I
Development and Discontent: The Question of Injustice
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Introduction
T
he end of 20th century saw the weakening of the discourse on one of the dominant Western models of development and simultaneously saw the emergence of another model based not so much on class conflict (and certainly not excluding it), but one that is based on the discourses of environmental protection, human rights and social justice. Increasingly, many are challenging the current linear neo-liberal model of development, with many voices articulating alternative approaches to development in many regions of the world—regions that have been forced to confront a wide variety of losses, calamities and disasters brought about by this dominant model of development. For example, in India and South Asia, development projects that convert the lands on which people live and work, into dams, reservoirs, irrigation schemes, mining operations, especially dedicated cities and townships, and recreation areas and other large scale forms of use favouring global interests have been increasingly criticised by communities affected adversely and the public organisations working with them. Noticeably, for a large part of the past two decades, most of the conversations about development have essentially taken place among elites. But the counter discourse that has emerged today comes from a substantially broader and more diverse base. While both sides of the discussion share to some extent similar rhetoric of social justice and material well-being, they differ markedly on the deeper philosophical meaning of development as a social goal and the means by which that goal should be achieved. The meanings, means and implications of development in the discussion reflect the internal heterogeneity of both the development industry and those who propose alternative visions. The discussion about development is no longer simply a top-down approach mainly proposed by the elites, but rather an argument based on protest and resistance from many sectors and many regions. In this chapter, through the selection of a few pieces we have attempted to get a glimpse of some of these voices of protests and alternative vision. Sanjay Barbora in the article ‘Ethnic Politics and
Introduction
33
Land Use’ analyses conflicts in the North-East and also takes a closer look at the wider debates on the issue of ethnicity. While official and administrative policies generate impoverishment and ethnic conflict, ethnic claims of territorial integrity put forward by different groups also exacerbate the situation. This chapter seeks to relate ethnic politics, to the growing importance of land relations and land use, by focusing on changes in land use patterns and social control over land in the North Cachar Hills. Lyla Mehta’s chapter focuses on the case of ‘water-scarce’ Kutch in India and its relationship with the controversial Sardar Sarovar Project (SSP). The study argues that access to and control over water is usually linked to prevailing social and power relations which influence how it is used or abused. The chapter on Kudremukh, deals with the recent Supreme Court verdict on Kudremukh Iron Ore Company (KIOCL). While the associated discussions on mining by KIOCL are coming to a close, the environmental movement it had spawned has raised several other issues to address, and importantly, has raised the question of creating spaces for a larger debate from within. The fourth chapter in this section is a part of the report brought out by Sanhati on the uprising in Nandigram over acquisition of farmlands for SEZs. It traces the beginning of the discontent till the killing of the unsuspecting people there on 14 March, and recounts many stories that reported the horror of the massacre and its aftermath. The last chapter is a CRG report titled ‘Eroded Lives: Riverbank Erosion and Displacement of Women in West Bengal’. It talks about how shifting river affects the lives of people—in this case in the district of Malda, Cooch Behar and Murshidabad—negatively, eroding not just livelihoods but life itself, rendering thousands as homeless. The water level keeps rising; people remain worried about the extent of land that will be lost when the waters recede and the state is found in a deliberate state of stupor, since the worsened condition of the shifting river is the outcome of the state’s own skewed understanding of development, where big dams (like the Farakka barrage) are symbol of state power and development. All the chapters have a thread running in common. They speak of loss, of injustice and how the local people are fighting in their small ways to rectify this loss. One of the voices increasingly heard today is that of people displaced and resettled by development projects. Uprooting and displacement have been among the central experiences of modernity. In many ways, the experience of development has meant for millions
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Key Texts on Social Justice in India
of people around the world a separation of local life from a sense of place. Development induced displacement and resettlement (DIDR) is, in many ways, a clear expression of the state with its monopoly on the management of violence and its ambitious engineering projects, freed from other constraints of non-political power or institutions of social self-management, and able to exert control over the location of people and objects within its territory. Conversely, to be resettled is one of the most acute expressions of powerlessness because it constitutes a loss of control over one’s physical space. Although in the last decade there have been calls for including social, cultural and political elements, development, as it has been generally and broadly conceived and applied, is the process through which the productive forces of economies and supporting infrastructures are improved through public and private investment. While the paths that this process follows at the ground level are numerous and varied, at the institutional level, they can generally be subsumed into the two large scale transformative trajectories of increased integration into the state and the market. People who remain outside or only partially within the threshold of these institutions are considered underdeveloped, or, at best, undeveloped. Economists give us the impression that there can only be one way to develop, which involves encouraging those who have resources to invest, increase production, goods, sales, jobs incomes, and so on. It is very important to realise that this conventional approach to development is only one path, and that the pursuit of this path raises the issue of fairness, which lies at the core of justice.
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1 Ethnic Politics and Land Use Genesis of Conflicts in India’s North-East* SANJAY BARBORA
An analysis of conflicts in the north-east entails also a closer look at the wider debates on the issue of ethnicity. While official and administrative policies may generate impoverishment and ethnic conflict, ethnic claims of territorial integrity put forward by different groups are also often ranged against demands for a greater homeland demanded by others. This paper seeks to relate ethnic politics, to the growing importance of land relations and land use, by focusing on changes in land use patterns and social control over land in the North Cachar Hills.
E
thnicity is an important factor that influences the complex social and political relations in north-eastern India. However, the various struggles for self-determination and events like the unprecedented protests against the extension of the Indo-Naga ceasefire in Manipur and Assam, seem to lend credibility to politically expedient notions that dismiss ethnicity as reactionary, inward looking and ultimately destructive element in democratic politics. Ethnicity is seen as the last bastion for veiled parochialism and insular chauvinism.1 For instance, one has seen the debate over the issue of a ‘greater homeland’ for the Naga peoples coincide with the competing legitimacy of other ethnic
∗ This article has already been published in Economic and Political Weekly, 30 March 2002.
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groups in the region that lay claims to the ‘territorial integrity’ of their respective homelands. The long-pending deliberations on how ethnic relations between communities develop the language and politics of ‘exclusion’ are overdue. At the core of this development or transformation of ethnic relations lies the fact that certain basic questions, relating to socio-political rights of the indigenous peoples, have not been resolved in the north-east. With the transformation of ethnic relations and development of further conflicts, it has been easier to defer the fundamental contradictions that have come about as a result of the existing policies of the state in dealing with ethnic groups, in the seven states in the region. This paper attempts to relate the ethnic politics of the region, to a growing importance of land relations and land use, by focusing on the changes of land use patterns and social control over land in a portion of North Cachar Hills.2 The paper is based on fieldwork and secondary data collected in NC Hills district, mostly amongst the Dimasa. The attempt is not to bolster or add credence to the claims of one (ethnic) group against others in the district. Instead, by focusing on the internal and external changes one hopes to arrive at the manner in which certain processes have affected social relations within the larger Dimasa community and by extension, between the Dimasa and other ethnic groups in the region. More importantly, one hopes to apportion responsibility where it is due. Official and administrative policies need not be the only factor that generates impoverishment and ethnic conflict. Subjective factors, such as years of communal distrust or contested histories may also add to this conflict. Yet, it is at the level of administrative and official policy that one finds a greater lack of debate and accountability. This is a condition that needs to be rectified at the earliest. North Cachar Hills district was formed in 1971. Prior to that, in 1951 it formed an integral part of an autonomous Hills districts (of Assam) known as United Mikir and North Cachar Hills. This district was formed after ‘taking out’ the Mikir Hills from Nowgong (Nagaon) and North Cachar from Cachar districts respectively (Danda 1997: 88). According to statistical information obtained from the Census of India 1971 there exists only one town and 503 villages in the district of NC Hills. Of the 503 villages, 281 had primary schools; 17 had middle schools, while only four villages had high schools. The whole district had 11 health dispensaries, five health centres and one
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hospital. None of the villages had maternity, child care and family planning centres. The communication system was poorly developed with eight metalled roads, 474 gravel roads and 13 post offices in the whole district. The district had a total scheduled tribe population of 52,583 (Census of India 1971). Relative little had changed in most areas (except population figures) by the time the results of the 1991 Census were declared. The total population in NC Hills had risen to 1,50,801 by the time the 1991 Census results were declared. Of these, 1,16,316 were situated in the rural areas. The number of high school graduates in the active workforce also showed a decline (Census of India 1991). More than half the population was classified under the ‘illiterate’ category with 1,620 urban and 750 rural graduates. The lack of any industrial development also meant that most of the people were shifting cultivators.
SOCIAL HISTORY
OF THE
DIMASA PEOPLE
As one may guess, the setting described above is almost ideal for generating a debate on the nature of the peoples who inhabit an underdeveloped region such as NC Hills. The Dimasa are by far the most dominant indigenous group in the district. They are by no means the only ethnic group in NC Hills. The region also has a sizeable population of Karbi, Jaintia, Hmar, Kuki, Naga and other indigenous groups classified as scheduled tribes. Amongst the non-tribal population there is a small population of ethnic Assamese people and relatively larger numbers of Nepali, Bihari and Bengali people. Most of the non-tribal people are engaged in petty trade and cultivation although some (non-tribals) are also employed by the Autonomous Council in the small service sector that exists there. When many ethnic groups exist in a contiguous area where resource allocation remains a problem, it is only to be expected that certain myths of origin, or historical claims (of sorts) become an area of contest for social groups. For the Dimasa, the ‘myth of origin’ is also a matter of great pride and it serves to define the community’s cultural identity. It has to be mentioned that this identity itself is something that can best be understood in the ‘normative’ sense, inasmuch as it refers to what the members of the (Dimasa) society ‘imagine’ to be their shared symbols or codes of
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cultural communication, that characterises them in contradistinction from other communities in the area (Das 1997: 37–57). The Dimasa belong to the greater Tibeto-Burman linguistic and ethnic community. They are mentioned in the Ahom ‘Buranjis’ (chronicles) at different periods as ‘Cacharis’.3 Historically, the TibetoBurman peoples are said to have been the earliest inhabitants of the region (Gait 1926: 248). In the 13th century they held sway over much of the region on the south bank of the Lohit (Brahmaputra) river, including the Dhanseri valley and the Barail ranges. According to oral traditions that have been interpolated with Hinduised traditions, there seem to have been two branches of the Cacharis, the eastern branch living around the present-day area of Sadiya and the southern branch, who had an established centralised system of governance based in Dimapur (Devi 1968: 91). During the first two centuries after the advent of the Tai-Ahom ethnic group from the Shan region in the 13th century, the sporadic conflicts with the Cachari groups in the east resulted in the consolidation of Ahom rule in the areas marked off by the Namdang and Dhanseri rivers. In the early part of the 16th century, wars between the Ahom king—Hsu’hungmung and the Cachari kingdom reached a point where territorial expansion was seen as the only means to consolidate the Ahom kingdom (Devi 1968: 96–99). The Cachari king, ensconced at Dimapur (referred to as ‘Itanagar’ in the Buranjis) had to cede the territories around Marangi to the Ahoms. After this, the Koch general—Csilarai, marched against the Ahoms and after defeating them, he then turned his attention to the Cachari kingdom. This event did much to loosen the stranglehold that the Ahoms seemed to have had on the Cachari kingdom. In the beginning of the 17th century, the Cachari king, Jasa Narayan annexed a part of the Jaintia kingdom. By this time, the Cachari capital had shifted to Maibong. The Jaintia king went to the Ahoms for help and the latter sent in their armies yet again to lay siege to the capital town of Maibong. Shortly afterwards, the Ahoms were compelled to sue for peace with the Cachari king due to the impending threat of war on the western front. Sporadic wars with invading armies from both the west (Mughals) and east (Burmese) dictated a series of treaties between the Ahom and Cachari kingdoms for a larger part of the 17th century. Thereafter, in the early part of the 18th century, under king Hsuk’rungpha (Rudra Sinha) the Ahoms again went to war with the Cachari kingdom and sacked the capital of Maibong
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(Saikia 1997: 101). Later, in 1750, following pressures of attacks and several incursions by the Jaintias, the Dimasa Cachari kingdom had to shift its capital from Maibong to Khaspur (in Cachar). The British annexed the Dimasa kingdom in 1832 when the last king died. However, his commander-in-chief, Senapati Tularam was allowed to remain in possession of the North Cachar Hills sub-division.4 Upon his death, the British formally annexed North Cachar Hills and added it to Nagaon district in 1854. These series of incursions and cooperation between two ethnic groups of the region is actually quite important. The Cachari kingdom evokes a sense of temporal validity to claims of territory, despite the fact that the boundaries of the medieval Cachari kingdom were redrawn several times as one can see. In a region like the north-east, the fortunes of the Cachari kingdom cannot be contested and to a large extent, it is the subject matter of what informs social relations between different ethnic groups. In 1886, a portion of NC Hills was conceded by the British administration and made a part of the Naga Hills (Misra 1990: 192). Between 1880 and 1881 another re-demarcation saw a part of NC Hills being added to Cachar district as a sub-division. Following the transfer of power, one again saw the district become a sub-division of the United Mikir and North Cachar Hills and, as mentioned in the text above, in 1971 the area was formally made a full-fledged district. These vagaries of fortune notwithstanding, it is important to take stock of the political exigencies that fuelled the periodic re-demarcation of the area. Until 1961, the Dimasas were treated as a ‘subtribe’ of the greater Kachari (or ‘Cachari’) tribe. In the 1961 Census, they were classified as a separate tribe. Repeated migrations had isolated the community. Despite (or perhaps due to) this, a pan-Dimasa identity was seen emerging during the early part of the 1960s. As early as 1947, a section of the Dimasa elite had joined hands with the other tribal leaders of the region and helped in the formation of the Tribal Council, under H.M. Haflongbar. This middle class had intimate contact with the traders and contractors coming from the plains and was themselves the suppliers and business partners in ventures with the peoples of the plains. The Tribal Council submitted a memorandum to the Bordoloi Committee and demanded the appointment of a boundary commission to fix the boundaries of NC Hills, so that the Dimasa living in adjoining areas might be brought together under one administrative unit. The council also demanded that only the bonafide inhabitant of the area
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be permitted to participate in the politics of NC Hills and the laws of the Indian parliament and state legislature could only be applied to the Hills areas with the approval of the Member(s) of Legislative Assembly (MLAs) of the area. They also demanded the protection of the cultural life of the tribal populace of the NC Hills area (Datta Ray 1989: 41–43). During the first 20-years of the District Council the Dimasas could not make much headway in the field of cultural assertion and protection. Though this was the expressed desire of the leaders of the community, it failed to translate itself into concrete programmes for the promotion and protection of Dimasa identity and culture. Perhaps an intra-group rivalry arising out of trading interests and resource sharing had a lot to do with this. Several glaring examples that highlight this condition can be cited. For example, though there was a strong demand for the introduction of Dimasa language at the primary school level, the district council could not implement it. Dimasa textbooks for the primary classes were published by the Assam Text Book Production and Publication Board but many of these remained in the godowns of the district council. The budget allocation for cultural affairs often remained unspent and there was little official patronage for the promotion of Dimasa art and culture. The intra-group rivalry notwithstanding, there could have been other factors responsible for this neglect. The first chief executive member of the district council was a non-Dimasa and the executive member in charge of education, was also a non-Dimasa. Hence, while the Dimasa youth of the region demanded the introduction of Dimasa in primary schools in NC Hills, the district council encouraged the replacement of Bengali and the introduction of English in these schools. Consequently, a large number of non-Dimasa tribal job seekers, who knew neither Dimasa nor Bengali, were appointed in these schools (Misra 1990:194). As a matter of fact, most state-run primary schools at the village level in NC Hills still use Bengali as the medium of instruction, even today. This itself is a source of subterranean tensions. In order to protect and promote the cultural identity of the community, the ‘Dimasa Jalairaoni Hosom’ was formed in 1972. It demanded the preservation of Dimasa historical monuments and adoption of the Dimasa language in the schools of the area. It was a non-political organization that had its headquarters in Haflong. Since its inception it demanded the preservation of Dimasa historical monuments and adoption of Dimasa at the primary level in NC Hills. The front also began to engage in oppositional politics
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when, in 1978 the district council ‘gave’ some new settlements to a few non-tribals. Following this act, the Dimasa Jalairaoni Hosom resolved to move the appropriate authority to stop the settlement of traditional lands by outsiders. In 1979, Dimasa National Organisation was formed. On March 11, 1979 it demanded the proper preservation of the ancient Dimasa relics and monuments. Many important Dimasa leaders were part of the organisation. The membership of the first executive committee shows that Dimasa leaders, both from the plains and hills, were actively engaged in the concerns of the organisation. This organisation attempted to unite all the Dimasa people living in the plains and hills and also in the different states. It tried to provide a common platform to work for a social and cultural unification of the Dimasa. Even ethnic Dimasa delegates from Nagaland pledged to work for this cultural and social unification. This organisation proved to be some kind of benchmark for other organisations that were to be formed by the Dimasa progressive elite. The trajectory of its concerns and that of organisations that followed it seems to travel through a well-beaten path. During the early period after their inception the organisations articulate broader cultural concerns of the community. The need to identify with an insurmountable process underlines the articulation of cultural identity itself. These processes range from the lack of control over the medium of instruction in primary schools, to the acute problem of land alienation. Hence, it is not surprising to know that even the armed organisation that seeks to represent Dimasa aspirations—the Dima Halam Daoga, has itself been through the process of transformation from ‘aggressive protection of culture’ to the inevitable position of ‘armed resistance’. At every step, political formations seem to be confronted by a series of hurdles that aid in their transformation to organisations that articulate political positions which force (these) organisations into a critical face off with the state machinery.
SPECIAL PROVISIONS, SIXTH SCHEDULE SOCIAL STRUCTURE
AND
At this point a legitimate question as to why this condition occurs with alarming regularity in the north-east may be asked. The fact that the
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Constitution of India has special provisions for the tribal people does not explain the reason why conflicts occur, despite the ‘protection’ assured under these provisions. A closer look at the Sixth Schedule that is applicable to the NC Hills region offers a few clues. The structural implementation of the Sixth Schedule is contingent upon the public notification of inclusion/exclusion of an area inhabited by scheduled tribes, by the governor. While the NC Hills region seems to offer no problem in its being notified thus, one has to consider its complex ethnic composition in order to understand the fact that the Sixth Schedule does not deal with the relations between such groups. Under this set of provisions, it is supposed to be the district council, a corporate body that comprises members of existing tribes within the notified area. It is however the governor who is empowered to make rules that provide for the composition of the council; qualifications for being elected as members of this council; term of office and the procedure and conduct of business of the council, amongst other incidental things. The district councils then have the powers to make laws with respect to the allotment of land, its occupation and use; management of forests; regulation of shifting cultivation; social customs and importantly—the succession of chiefs and headmen. What is significant is the fact that the council does not have the powers to block the acquisition of land (occupied and/or unoccupied) by the government of the state concerned. This fact is important in the light of the fact that ‘outsiders’ are not allowed to buy and sell land in a notified Sixth Schedule area. The council has certain powers to make regulations for the control of trade by non-tribals in the area. Regardless of the fact that these powers exist, one still sees the economy of the region being in the control of people who do not fall under the category of scheduled tribes. Moreover, with regard to the powers to assess and collect land revenue and impose taxes in the area, the council is empowered to collect such taxes that arise out of the entry of goods and services. With regard to the administration of justice in these areas, the councils are supposed to work in tandem with the village councils and headmen, who in turn derive much of their authority from the council itself. The trial and suits that arise between parties who are classified as members of the scheduled tribes fall within the jurisdiction of the district council and the village courts. The high court (in Guwahati) however exercises the jurisdiction over suits that fall under the ambit of the Code of Civil Procedure, 1908 and the
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Code of Criminal Procedure, 1898, except in a few cases, the details of which are vested on the person of the governor. Thus one can see that the extent to which the traditional council can exercise its powers is restricted. A system of checks and balances within the framework of the Sixth Schedule ensures that when the matter of political disputes arises, the powers allocated to the councils prove to be inadequate. This is important to bear in mind because it is not as if these powers are then transferred to the judicial equivalent of the high court, but to the appointed representative of the central government—the governor. More importantly, in the case of changes in the land use and transfer of land, only those cases that arise between persons (or corporate groups) classified as scheduled tribes, can be resolved by the village council. If, for example, a Dimasa person has a problem with the acquisition of her or his land by the government, her or his appeals to the village council would be futile. At the same time, the district council is empowered to make certain changes in the pattern of land use in the area. This is more than just a discretionary power that has been vested on the council. In effect, it is a power that carries the obligation to change the very livelihoods of the people of the area. The point that these changes are meant for the overall development of the region is a little dubious. There is very little to substantiate the fact that the people themselves have made informed choices regarding the changes. Yet these are changes that the people have had to learn to live with. Needless to add, such a process has had problems of its own. The problems in turn are fuelled by the social and political structures within which the dynamics of change take place, creating a series of real or imagined adversaries (Baruah 2002). Most villages in the region are small and the inhabitants are largely subsistence farmers. Some villages have primary and secondary schools. Although the district council has the responsibility of running the schools, the long-standing demands of the Dimasa for instruction in their own language, has not yet been fulfilled. The medium of instruction in such schools is most likely to be Bengali. The schools also generate employment for a very small number of people within the village. Within a village, authority is centred around the persona of the ‘gaon burha’ (village headman). Amongst the Dimasa, the institution of the village headman is almost hereditary. The villages belong to different clans. Yet, there is a system by which a certain clan is accorded the privilege of being the ‘first clan’ to have cleared the
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forests. The gaon burha is the final authority on matter related to land and the individual (or group of individuals) first approach him before they select their plots of lands for cultivation. As is the case with areas that are notified to be within the Sixth Schedule, land is the property of the community. This is not surprising given the fact that the basis of social organisation in these areas centres around shifting cultivation. Hence, the issue of a permanent lease is not a rational condition in cases where the individual can move from one place to another, depending on the agricultural demands for the season, with the community. If, however, a person (or group of persons) want permanent ownership they have to first approach the gaon burha, who in turn ‘sanctions’ their application for a ‘patta’ to the council. The council in turn confers ownership rights to the person concerned. The matter is full of ironic twists. As is evident, the political structure invests a lot of authority on the gaon burha. This is in keeping with the spirit of ‘preservation of traditional authority’ and the council seems careful not to erode the authority of the headman. For instance, in the village of Lamadisa, the headman is always chosen from amongst the members of the ‘Hafila’ clan. In other villages, the clan origins play the major role in determining who can be the headman. That this structure is susceptible to manipulation for the benefit of a section of the community, is further clarified when one sees the process by which a tea farm was established in Gunjung. The village headman was approached by a member of the ‘Daolagapu’ clan for individual ownership rights to land to start a tea plantation back in the early 1990s. The claimant was a prominent businessman from Haflong whose family originally came from Gunjung village. The headman forwarded his request for land to the council, who in turn granted the claimant the right to possess an individual patta for the land. The exact area however was to be negotiated (in principle) with the villagers and the headman, who is the final authority in such matters. The claimant was then granted permanent ownership rights over roughly 700 acres of land, much of which was actually land that was used by the villagers for ‘jhum’ (shifting) cultivation, grazing their livestock and collection of forest products. The ‘deal’ here was that the villagers in the adjoining area (and Gunjung) would be able to reap the benefits of ‘development’ once the tea farm was established. This happened back in the 1993–1994 and today there is enough tension within the
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community to suggest that some sort of horizontal cleavage is taking place. For one, growing of tea has only been done on 25 acres of the allotted 700. To most of the villagers this seems like an enormous waste. Moreover, of the 40 odd workers who work in the farm, none are locals and all have come from the plains. The work conditions are not very good. Most workers are not willing to stay for long due to the lack of amenities and fear that their relationship with the local villagers might lead to conflict in the near future. Their contacts with local villagers are also severely restricted. However, one was also told that the people of Guliabra were more accommodating than their counterparts in Gunjung. This was because the former were sometimes employed as casual workers for clearing the land in the tea farm, during the lean agricultural season. In any case, the management of the tea farm (represented here by a young non-tribal person) was not in favour of the workers mixing with the local villagers, as the chances for conflict and arrests were very high. In the past, trouble has cropped up between the Dimasa villagers and some of the workers. The latter allege that they are also threatened by the presence of armed opposition groups in the area. As is expected, the set of players involved in this complex network of social negotiations, play conflicting roles themselves. For instance, although it is an advantage to approach a headman from the same clan, the political composition of the council also comes into play when the final patta is granted. Most political parties, ranging from the Congress(I), to the Autonomous State Demand Committee (ASDC), have a stake in the functioning of the district council. The gaon burha too is influenced by his political affiliation. Hence, a change in the composition of members in the council affects the relations on the ground in the village itself. In the case of the tea farm, the gaon burha belonged to the Congress party and in the early 1990s, the composition of the district council also tilted in favour of the Congress. It is easy to see why the claimant’s request was passed through with relatively little problems being encountered along the way. During the course of time, the composition of the district council tilted away from the Congress, in favour of the ASDC. As a result, it was easier for whatever simmering dissent there might have been in the village, to take a political colour. The people of Gunjung, who were directly affected by the presence of the tea farm, were amongst the first to question the decision of the gaon burha. The argument offered by those who were at odds with the gaon burha’s decision was
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that while the owner of the farm got to use all the common resources, he himself had done precious little for the villagers. Although this is not the only case of conflict that exists in the area, it still serves to show how localised issues have a larger political context and by extension, a larger socio-economic dimension.
THE DEVELOPMENT GENIE
AND ITS
SPONSORS
As mentioned earlier, the power to allot, occupy and use land is vested in the district council under the provisions of the Sixth Schedule. As an offshoot of these powers, the council is also obliged to regulate the practice of jhum and other forms of shifting agriculture. It might therefore seem that there is some degree of acquiescence between the tribal people and the authorities, as to how land is going to be used and managed. In truth there is no such process. Most of the local inhabitants of the villages in NC Hills practice shifting cultivation not out of choice alone, but also out of necessity. In the absence of agricultural and/or labour markets of any significance, the Dimasa villagers of the area are forced to continue with this mode of land use. The returns from shifting agriculture are very low and because it requires a comparatively larger area of production, it is often said to be ‘unproductive’. The administration and their allied technocrats endorse this view. A lot of energy is expended by the proponents of agricultural development, to dissuade the farmers from practising this form of cultivation and alternatives are thrown at them almost every season. Despite this, the social life of a vast majority of the Dimasa people (in the NC Hills area) continues to be determined by the agricultural cycles of ‘jhumming’. It is precisely such practices that the authorities want to alter. However, in doing so, little attention is paid to the issue of sustainability and fall-out of the alternatives. Whether by accident, or by design, community ownership of ‘jhum’ land is seen as the unwanted remnant of a past that is incompatible with any form of rational agricultural development. In most cases, the transition from shifting cultivation to other forms of agricultural regimes comes at a price. The growth of individual ownership rights over land is almost seen as a pre-requisite. This itself is very problematic. In the first place, it accentuates the gap between agricultural
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technologies and in fact adds to the notion that ethnic groups like the Dimasa, are being threatened by their ‘backwardness’. Secondly, the council’s policies rarely take into account the ethnic relations on the ground. Even though there is more than enough evidence to suggest that the outcome of the policies will benefit a chosen few and leave many discontents in their wake, the alternatives chosen continue to be pushed forward as part of the overall development strategy. In a sense, the historical sensibilities of the Dimasa are not on the minds of the policy planners. Instead, what comes out as the principle motive is the need to regulate the land use to suit the needs of a select few from within the community. While it is possible to focus attention on the outcomes of direct interventions made in the name of ‘development’ by the council, the role of other players in the changes in land use (and ‘agricultural development’) is somewhat more complicated. A sizeable amount of funds for agricultural development have been introduced by the Coffee Board, Tea Board and the Rubber Board. In the late 1980s the council encouraged farmers to contact the Coffee Board to see if the land could be used for coffee cultivation. The (Coffee) Board consolidated enough land in and around certain villages to begin commercial cultivation. The villagers pooled in the common land which was then placed under the managerial supervision of an employee of the Coffee Board (usually a non-tribal). For a few years this experiment seemed to be going well. The board supported the farmers by buying the beans at a fixed rate. The beans were then sent to Guwahati from where they were transported to other places for processing. However, not a single factory for processing the beans exists in NC Hills. Nor is there a ready market for the raw product. In the latter part of the 1990s, when the prices (of coffee) fell, the board felt that it could no longer support such ventures and withdrew its support to the farmers. As a result, today there are numerous ‘ghost coffee plantations’ that dot the hills along the road to Haflong. Most managers have since left yet some remain in the hope that board will reopen the plantations when the prices are favourable. The local Dimasa people who participated in this experiment hardly have any back up to be able to pick up the pieces from this economic tragedy. The story would be similar for those who experimented with other plantation crops like rubber and tea. The International Fund for Agricultural Development (IFAD) also began major interventions in the region in the mid-1990s. IFAD has its
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work cut out in the region. Its interventions range from promoting tea in certain areas, to providing loans to farmers to raise pigs, in others. While IFAD aided interventions seem to incorporate a wide range of agricultural activities, there is an overall sense of déjà vu that seeps into any developmental effort in the region. In other places of the world, IFAD along with other transnational donor agencies, has promoted the concept of ethnodevelopment, as model that may be followed for encouraging ethnic minorities to join the larger global (or national) market. This form of development supposedly takes into account the conditions that lead to alienation and exclusion of ethnic minorities by focusing on the principle of involving the communities in the process of development. Most governments have joined this effort as it seems to be a plausible solution in terms of a qualitative engagement with political issues (Clarke 2001: 425–29). If NC Hills is anything to go by, ethnodevelopment is an experiment that is not doing too well. IFAD’s programmes are an important indicator of how and where the government (and non-governmental voluntary organisations) plans to focus on, in the endeavour to administer the NC Hills. There is all too much attention being focused on the fact that existing systems of land use are not ‘rational’. Along with that is the fact that the alternatives themselves do not seek to question the basis on which the system is applied, namely—the larger issue of the communities sense of its civil and socio-political destiny—in a situation that deteriorates everyday. Even with the alterations and interventions in the land use and land holding patterns, one has to remember that the average Dimasa village in the region is still devoid of basic amenities. Education facilities in the villages are dismal and while this may be true all over India, rarely has the question of identity been so closely linked to education, livelihood and culture, as with the Dimasa. There is little to suggest that the development initiatives have had much effect on the ground. The weekly markets (‘haats’)— in Gunjung and elsewhere, are almost embarrassing in the functional hierarchy of individuals and their occupations. Most of the traders who sell essential items are non-tribals. The buyers are mostly Dimasa villagers from nearby areas. Prices at the ‘haats’ are exorbitant, but that does not seem to detract the buyers. This is because, for goods that are reasonably priced, the villagers would have to make the arduous trip to centres like Haflong, Maibong and Lanka. The travel
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costs incurred in such an endeavour are quite significant. None of the agricultural restructuring programmes seem to address this at all. The fact that the markets, in an economy where cash transactions exist alongside with the barter system are almost totally dominated by those who do not engage in primary production, negates the ‘protective’ clauses of the Sixth Schedule.5 In such a situation, the lack of debate amongst the proponents of land restructuring and agricultural development, on the issue of deprivation and creation of new hierarchies amongst members of different ethnic groups, is remarkable. In reality the questions that arise as a result of this process, are often raised as those coming from a position of siege. The proponents of ethnodevelopment and other assorted models of livelihood pattern alterations do not seem to be conscious of this. In such a situation, the manner in which these questions are resolved is also a matter that adds to the complexity of social relations between different ethnic groups. The most important one is taken up for a brief discussion below.
THE
MILITARISATION: GEOGRAPHICAL AND POLITICAL REALITY
The political space for negotiation of issues related to resource sharing and cultural aspirations in NC Hills has not been anything that would make one proud of democratic tradition within the region. As discussed above, this condition can be partly attributed to the failure of constitutional provisions guaranteed to the ethnic minorities in India. However, militarisation remains the greatest impediment in fostering meaningful ties between different ethnic groups in NC Hills. One uses the term to specifically denote a sociopolitical condition that is characterised by the propensity to use military force as a substitute for political settlement of concerns of a civil society. It also includes the ‘threat of the use of military power’ (Dreze 2000: 1172). The militarisation of NC Hills may be attributed in part to its geographical location. For the British colonial administrators, it was the strategic location of the Barail Hills that determined their extended stay in the district. The area forms a contiguous part of the Shillong plateau that covers much of Meghalaya and extends to the Naga Hills that finally
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join a portion of the Arakan Yoma spine that forms India’s boundary with Myanmar. If one were to consider the pressing task at hand for the British in their manic 19th century rush to expand the territorial area of colonial production, then the geographical terrain would provide some concrete answers. Colonial investment and enterprise in the 19th century was centred on the regions that fell within the Lohit (Brahmaputra) and Surma valleys. Tea and oil formed the principal products that were extracted from the area. The investments were by no means meagre. Indian Tea Association figures of 1914 state that a nominal capital invested in joint stock companies producing tea in India amounted to a sum of Rs 302.3 million, of which only about Rs 43.1 million were accounted for by companies registered in India. The rest was shown as investments made by ‘sterling’ companies, situated mainly in England [Bagchi 1974: 10–30]. Most of the shareholders were settled in India though. They were usually functionaries of the colonial government, or else European businessmen in India. To coax the inflow of foreign capital, the colonial state did everything in its power to create certain conditions that would prove conducive for such investments. They encouraged the acquisition of land in the Lohit valley by formulating the Wasteland Rules in 1838. While the mad rush to grab land and the business of setting up large tea plantations went on in both the valleys, the British took extreme care to protect these interests from possible incursions by ‘wild tribesmen’ from the hills (Reid 1942: 100). The systematic policing of the hills was necessitated in part by the volume of investment in the valleys. The other option would have been the introduction of standing troops in the form of the Imperial army. The latter move might have been a little cumbersome, as it involved the transportation of troops and material from other parts of south Asia to a region that was culturally and geographically distinct. The newly annexed regions were nevertheless subjected to the sustained control by paramilitary forces. What was more important in the case of NC Hills was the manner in which this surveillance took place. It is the ‘strategic importance’ of such a surveillance that is of great interest. Even today, the major road that links the largest, most important urban centre—Haflong, remains the lifeline for the people of the region. The Assam Police Battalion has a huge garrison at Sontilla, a few kilometres before one actually reaches Haflong itself. All along the
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road, right from the foothills at Diyungbra in the north, through the passes and back down to the Cachar plains in the south, police and military posts form are situated strategically so as to ensure that all traffic movement can be regulated. In addition, there is also a police training centre for the Special Services Branch (SSB) in Haflong. The area is extremely poor and one is hard pressed to consider the probability of criminal activity that warrants such a police/military presence in an area such as this. It could well be the fact, that despite low levels of capital investment, NC Hills remains a strategic area from a politico-military perspective. This, in itself, creates the foundation for perpetuation of injustice. In early February 2001, an Assam Police battalion was ambushed on this road by armed members of the Dima Halam Daoga. Nine policemen were said to have been killed. In response to this attack, the police, paramilitary organisations (including the Central Reserve Police Force) and sections of the Assam Regiment stationed at Umrangshu went on a rampage and began conducting evening raids in all villages along the highway. Moreover, people from certain villages were made to perform two days of forced labour that included clearing the jungle along the highway. This disruption of daily life during the beginning of the jhum season was further exacerbated by daily reports of torture, beatings and arbitrary detentions (MASS 2001).
CAUSES
THAT
GENERATE CONFLICT
This is merely an example of how the military option is the preferred option in most areas of the north-east. What it does to issues of accountability to rule of law is itself quite devastating. There is very little that the average villager can do to secure justice in instances where the armed forces are involved. This is even more important when one considers the fact there is little that the armed forces are not involved in. In addition the council itself is not empowered to take up such cases for review. All authority actually lies with the local commanders of the police, paramilitary and military forces. Of course, bureaucrats who are the ubiquitous presence in any such situation are also important in considering the mode of justice to be meted out
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after such events. In the final instance, such a synchronised process of surveillance and control by the state agencies, only help to reinforce the feeling that the community itself is being threatened by external forces. Added to this is the fact that the administrative structure itself is unable to address the insidious process of the fast growing disparities amongst the ethnic groups (both internally and externally) in the region. More than anything else, it is this that lends weight to voices within the community that seek to define their engagement with political issues, as a series of insurmountable oppositions from the outside. The changes in land use are but one instance that show how ethnic relations and politics affect one another. The state apparatus, that includes the autonomous council administrative structure, has actually been less than imaginative in diffusing ethnic tensions in the NC Hills region. If the recent dissent on the issue of the ceasefire extension amongst the Dimasa people of the region are anything to go by, then a serious revaluation of the development strategies adopted thus far, as well as, the process of militarisation, needs to be addressed simultaneously. Political theorists over the years have sought a clear distinction between the nature and role of the state and that of the civil society—the state, as represented by those in government and the civil society, as composed by the governed. It has, however been found that in a democracy, though the nature of the two groups and their roles may be different, their characteristics and aspirations are largely the same and even interactive. Since the state, under a strict compliance with the rule of law and essential principles of democracy derives largely from the civil society. Thus, those in government execute the collective aspirations of the civil society, having derived their authority and legitimacy from it; while the civil society in turn, aside from willingly offering its loyalty, also plays very active roles in the governance of the state by ensuring that the state is held responsible and accountable to it at all time (CLO 1998). The soul of the civil society amongst ethnic groups in NC Hills lies in its ability to organise for a collective purpose and at any point in time capable of determining its fate. But like it has been variously argued, militarisation itself implies the systematic dissolution of the civil society and its reconstruction in the image of the military, and correspondingly, the fostering upon the population, the ideology and culture of the military. Under the military, the civil society in NC Hills
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and the northeast as a whole, has been inflicted with immense chaos, inertia, mass apathy, frustration and helplessness, mental and physical fatigue and alienation, not only from the state but also from itself. These conditions cannot be considered conducive for the development of any form of democratic politics. While the restructuring of land use and land relations may offer a limited relief, with the promise of development, the fact that they are often divorced from existing civil and political realities, negates the essence of their interventions.
MOVING AHEAD To sum up the issue, in north-east India, ethnicity is not just a matter of articulating a variant of ‘identity politics’. It is true that notions of identity are not static and undergo changes every now and then. The presence of ‘Autonomous District Councils’ may lead one to think that the best possible way to regulate conflict is to ensure that provisions of the Sixth Schedule are applied uniformly to tribal areas. Such a view is self-defeating in the light of severe shortcomings within the ‘ethnic homeland’ framework itself. Be it the Sixth Schedule, or other constitutional variants like Article 371a (in the state of Nagaland), one has to take into consideration the reality of political manoeuvring that goes into the process. This manoeuvring forms a ‘structural predisposition’ (on the part of the state apparatus) that has at least five important elements. In the first place, the protection that is assured to the indigenous tribes actually has their intellectual and ethical roots in the administrative policies of the colonial British state. Secondly, the demand for some form of protection from the process of slow and allpervasive impoverishment is as real as the feeling of threat amongst the indigenous peoples. Thirdly, given the available political discourse, the possibilities for solutions to this impoverishment are themselves limited by the fact that the solutions are often meant to ‘manage’ the possibility of conflict. Fourthly, this ‘management’ usually results in the state apparatus appropriating more power, including the threat of violence by its armed wing. Lastly, while it may seem that the state is giving in to populist demands of the indigenous peoples, the continuing instances of impoverishment-related conflicts, suggests that its
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efforts are directed more towards containing insurgency, rather than resolving economic and social inequalities in a democratic manner. Given such a structural predisposition on the part of the policy-makers, it is difficult to envisage how ethnic relations can be resolved by means other than the militaristic mobilisation of different ethnic groups. Still, the need for resolving these conflicts is felt by all sections of society in the region. Non-militaristic solutions, to conflicts arising out of sharing of resources and hardening of ethnic identities, have come from non-state actors working at the grassroots.6 If further conflict between the different ethnic groups within the region is to be avoided, the voices of civil society, in the form of local protest groups, human rights bodies, disenchanted individuals and other political formations need to be taken very seriously by development agencies and the state apparatus. More often than not, these voices articulate fundamental grievances that are civil and political in nature—such as the right to self-determination. Yet, in the haste to muffle these issues, the course of containment that the administration has embarked upon, seems to end in the overall impoverishment of the indigenous people and accentuation of the ethnic tensions amongst them. Only a sustained engagement with the issue, coupled with a heightened public perception of the complexity of ethnic relations within the region, can act as a catalyst for nonmilitaristic change in the existing system.
ACKNOWLEDGEMENTS The author wishes to thank Lachit Bordoloi, Sanjib Baruah, Gautam Navlakha, Dolly Kikon and Walter Fernandes for their comments and ideas in formulating the issues outlined in this article. The usual disclaimers apply.
NOTES 1. H. Srikanth has reiterated this point in his EPW article (Vol. XXXV, No 47, November 18-24, 2000). He arrives at this conclusion by treating media reportage and social histories of the region to a somewhat uncritical subjective reading. The
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2.
3.
4.
5.
6.
flaws with such a method are rather obvious as they do not take into consideration the effects of state policies on the social construction of ethnic identities and adversaries. North Cachar Hills (NC Hills) is one of the two districts of Assam, where the Sixth Schedule rules apply. Interestingly, sections of it have been ‘claimed’ by Naga nationalist organisations as a constituent part of ‘Greater Nagalim’. The district is home to various other ethnic groups, mainly the Dimasa, who articulate an equally strong claim for the district to be included in what it calls ‘Dimaraji’ or ‘Dimasa homeland’. The term ‘Cachari’ (or ‘Kachari’) was used by the Ahom chroniclers to denote a definite group of people on the basis of their cultural and historical otherness. Over time, the usage assumed a pejorative connotation and the renunciation of the term itself could be seen as the assertion of a ‘positive’ identity. Senapati Tularam remains an iconic figure for the Dimasa progressive elite. His village in Gunjung, about 30 kilometres from Haflong, has a school named after him. Interestingly, the Jesuit Mission based in Kohima currently manages the school. The ownership of the land on which the school, hostel, and so on are situated still belong to the villagers of Gunjung although the management have been given the ‘right’ to use this land and its resources for the betterment of the community. The person employed as the teacher in the village school, need not be a local inhabitant of the village. Sometimes, the lack of suitable local candidates necessitates the induction of persons from a different village. A random biography of the local teacher at Lamadisa village shows that even though he was from a different village, he was given land for his homestead and for farming, within the traditional boundaries of Lamadisa itself. Actually, even in the area of primary production there is also the recent phenomenon of nontribal agriculturalists acquiring long-term leases from Dimasa owners. The lands that non-tribal agriculturalists cultivate are usually in the foothills, near Diyungbra. A few initiatives have been undertaken by community leaders and human rights groups in other parts of the north-east. Most recently, elders of the Lotha community of Wokha district invited human rights groups and individuals from Assam for a ‘people-to-people’ dialogue on micro- and macro-level issues that affect the people adjoining Wokha, on December 31, 2001. Such initiatives are not patronised by politicians and administrators and seem to be purely civil society initiatives. They have helped diffuse a lot of tension amongst different ethnic groups in the area.
REFERENCES Bagchi, A.K. 1974. Private Investment in India 1900 to 1939, Cambridge University Press, Cambridge.
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Bakshi, P.M. 1991. The Constitution of India: With Comments, Universal Book Traders, Delhi. Baruah, Sanjib. 2002. Citizens and Denizens: Ethnic Homelands and the Crisis of Displacement in North-East India. 1st V. Venkata Rao Bordoloi, B.N. (ed.). 1986. Alienation of Tribal Land and Indebtedness. Tribal Research Institute, Guwahati. Census of India. 1971. Assam District Handbook, North Cachar Hills District, Part X-A, Village and Town Directory, Part X-B, Primary Census Abstracts, Government of India, New Delhi. ———. 1991. Series 4-Assam, Economic Tables, Directorate of Census Operations, Assam. Civil Liberties Organisation (CLO). 1998. The Sacking of Civil Society, Civil Liberties Organisation, January–March, Vol. 9, Issue 1, Lagos. Clarke, Gerald. 2001. ‘From Ethnocide to Ethnodevelopment? Ethnic Minorities and Indigenous Peoples in South-East Asia’ in Third World Quarterly, Vol. 22, No. 3, pp. 413–35. Danda, Dipali. 1997. ‘Some Observations on the Dimasa Ethnic Identity’ in R.K. Bhadra and S.R. Mondal (eds), Stratification, Hierarchy and Ethnicity in NorthEast India, Omsons Publications, New Delhi, pp. 85–96. Das, Samir Kumar. 1997. ‘Ethnic Insurgencies in North-East India: A Framework for Analysis’ in Barrister Pakem (ed.), Insurgency in North-East India, Omsons Publication, New Delhi, pp. 37–57. Datta-Ray, B. 1989. Tribal Identity and Tension in North-East India, Omsons Publication, New Delhi. Devi, Lakshmi. 1968. Ahom-Tribal Relations (A Political Study), Lawyer’s Book Stall, Guwahati. Dreze, Jean. 2000. ‘Militarism, Development and Democracy’, Economic and Political Weekly, Vol. XXXV, No. 14, pp. 1171–83. Gait, Edward. 1926. A History of Assam (second edition), Spectrum, Guwahati. Gopalakrishnan, R. (ed.). 2001. Research Priorities in North-East India: With Special Reference to Assam, North Eastern Regional Centre—Indian Council of Social Science Research, Shillong. Longchari, Akum. 2001. ‘Stories of the Voiceless’ in Indigenous Affairs 2/01, International Work Group for Indigenous Affairs, Copenhagen, pp. 9–13. Manab Adhikar Sangram Samiti (MASS) (2001): The Voice of MASS, July 2001, MASS Publication, Guwahati. Memorial Lecture to NE India Political Science Association, North Lakhimpur, January 5. Misra, P.S. 1990. ‘Identity Consciousness among the Dimasa of Assam’ in B. Pakem (ed.), Nationality, Ethnicity and Cultural Identity in North-East India, Omsons Publications, New Delhi, pp. 191–98. Reid, Robert. 1997. (reprint): History of the Frontier Areas Bordering on Assam from 1883 to 1941, Spectrum, Guwahati. Saikia, Sayeeda Yasmin. 1997. In the Meadows of Gold: Telling Tales of the Swargadeos at the Crossroads of Assam, Spectrum, Guwahati.
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Samaddar, Ranabir. 1997. ‘Reflexive Nationalism and the Indian North-East’ in Barrister Pakem (ed.), Insurgency in North-East India, Omsons Publication, New Delhi, pp. 128–37. Srikanth, H. 2000. ‘Militancy and Identity Politics in Assam’ in Economic and Political Weekly, Vol. XXXV, No. 47, pp. 4117–24.
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Manish K. Jha
2 Contexts and Constructions of Water Scarcity* LYLA MEHTA
What makes water scarce? This chapter argues that water scarcity is both ‘real’ and ‘constructed’. While manufactured through political and policy processes, a combination of socio-political, discursive and institutional factors, water scarcity is experienced in terms of real, tangible effects. By focusing on the case of ‘water-scarce’ Kutch and its relationship with the controversial Sardar Sarovar Project, this chapter argues that state discourses and programmes essentialise scarcity as a natural phenomenon that enables the political legitimisation of large dams. In the process, they also marginalise local knowledge systems and livelihood strategies that are adapted to conditions of uncertain and limited water supply.
INTRODUCTION
W
ater scarcity is considered one of the most pressing problems confronting the survival of humankind in the next century. But what is it that makes water scarce? Is it the rapidly dwindling aquifers? Is it the billion-plus people who lack access to clean water? Clearly, water supplies are limited and finite, but does this make water scarce in absolute terms? By focusing on the case of ‘water-scarce’
∗ This article has already been published as a part of a special issue of Economic and Political Weekly entitled ‘For a Cultural Politics of Natural Resources’ which was then produced as a book entitled Baviskar, A. (ed.) 2008. Contested Grounds. Essays on Nature, Culture and Power, pp. 38–59. New Delhi: Oxford University Press, 29 November 2003.
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Kutch in India and its relationship with the controversial Sardar Sarovar Project (SSP), the chapter argues that access to and control over water is usually linked to prevailing social and power relations which influence how it is used or abused. The chapter demonstrates that water scarcity can be constructed differently by different social and political actors, often to meet political ends. Through a detailed empirical and multi-sited examination of both actual practices and discourses around scarcity in the Kutch region of western India, the chapter argues that scarcity is both ‘real’ and ‘constructed’. It analyses the ‘real’ aspects of scarcity—dwindling groundwater aquifers, increased salinity—while also revealing the means by which scarcity is ‘constructed’ or ‘manufactured’ through political and policy processes. State discourses portray scarcity as natural (rather than humaninduced) and chronic (rather than cyclical). The external ‘essentialised’ notions of scarcity generated by state discourse and state programmes are often quite different from local people’s knowledge systems and livelihood strategies that allow them to adapt to the unpredictability and temporary scarcity of water. This chapter begins by discussing the multifaceted nature of scarcity and then provides an overview of Kutch, its water resources and the links with the SSP. It then analyses the dominant discourses of scarcity and demonstrates what they obscure. It then examines local responses to scarcity and ends with a discussion of how socio-political, discursive and institutional factors have successfully combined to naturalise scarcity in Kutch.
MULTIFACETED NATURE
OF
SCARCITY
From once being considered an abundant resource, water is increasingly seen as a ‘scarce’ resource, which needs to be managed judiciously. The statistics are well known: only 3 per cent of water on earth is fresh and most of this is locked away in the ice caps of Antarctica and Greenland or deep in underground aquifers. As a result, only 0.3 per cent of global water is available for human consumption (Gleick 1993: 3). Water scarcity, as it is constructed in global declarations and debates, is often presented in absolute and monolithic terms, obscuring the complex nature of scarcity and its linkages with ecological, socio-political, temporal and anthropogenic dimensions. Let us review some of them.
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One, unlike other environmental resources such as forests and coal, water is a renewable resource, which means that its availability is constantly subjected to variation depending on its state in the hydrological cycle. (One exception is groundwater, which is less renewable than other water sources.) Not only is its state variable (for example, solid, fluid or in gas form) but it is also variable across time and space, depending on factors such as climate, season and temperature. These are the biophysical and ecological attributes determining water availability. Two, water scarcity has temporal and cyclical dimensions. People living in arid and semi-arid regions have long since recognised the temporal nature of water scarcity as the case study demonstrates. Periods of dearth are interspersed by periods of abundance. Water availability, thus, is characterised by uncertainty in many parts of the world. However, while the contingency on factors such as rainfall, vegetation and grass cover make water availability uncertain, it would be fallacious to see water scarcity as something that is constant and permanent. This is because supplies do become abundant in favourable seasons and climatic conditions. Thus, water supplies are relative to exogenous factors such as rainfall. The third dimension is the distributional and relational aspects of scarcity. There is tremendous inequality in access to and control over water resources. Scarcity is not felt universally by all. In water scarce western India, irrigation pumps work 24 hours a day, while poor women find their drinking wells run dry. In arid parts of the world, people consume 10 litres of water per day while an average American, by contrast, uses over 700 litres a day (Gleick 1993: 375). The fourth dimension concerns the anthropogenic dimensions of scarcity. While water scarcity tends to be naturalised today, its anthropogenic dimensions are whitewashed. It is well known that the degradation of the Aral Sea and the Caspian Sea are largely due to human intervention. Furthermore, many of the silted up dams, broken hand-pumps and defunct water pipeline schemes are indicative of bad management practices and/or a failure to encourage or create supportive institutional arrangements to govern water supplies. In sum, it is wrong to conceive of water scarcity in absolute terms, but instead, there is an urgent need to link water scarcity with sociopolitical, institutional and hydrological factors.
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WATER SCARCITY AS SOCIAL POLITICAL CONSTRUCTS
AND
…the whole human development, at least up to now, has been a bitter struggle against scarcity. —Jean-Paul Sartre1
Scarcity is frequently considered a ‘given’ factor of human life and an existential reality. It is also one of the main premises of modern economic thought. Even some sociologists have been seduced by these ideas and see the combat against scarcity to be the basis of social action (cf. Balla 1981: 225). However, has it always been so? Nicholas Xenos in the work Scarcity and Modernity (1989) systematically shows how certain attributes of modernity have given rise to the universal notion of scarcity. Today unshaken belief in paradigms promoted by neo-classical economics makes scarcity out to be a ubiquitous and permanent feature of the human condition. The etymological roots of the word ‘scarcity’ go back to the Old Northern French word escarcté which meant insufficiency of supply. Until the late 19th century, scarcity connoted a temporally bounded period of scarcity or a dearth. Scarcity was experienced cyclically, dependent usually on poor yields. After the industrial revolution which led to cataclysmic changes creating new needs, desires and the frustration of desires, the concept acquired a new meaning which culminated in its ‘invention’ in neo-classical economic thought of the 18th century (Xenos 1989: 7). From scarcities, which were temporally bound and spatially differentiated, came the scourge of scarcity, ‘a kind of open-ended myth’ (ibid: 35) from which deliverance was sought. Scarcity, not a scarcity or scarcities, was essentialised and its simplistic universalisation led to the obscuring of ambiguities and regional variations.2 In modernity, the elusive twin of scarcity is abundance, making scarcity ‘the antagonist in the human story, a story with a happy ending; vanquishing of the antagonist and a life of happiness ever after and abundance for all’ (ibid: 35). Deliverance from scarcity could only take place, philosophers argued, via progress. Shades of this are still found in theories of modernisation which promote unilinear paths from ‘underdevelopment’ to ‘development’. Progress became the focus for social critics such as Marx and Mill whose theories argued that abundance was the pre-requisite
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for the full realisation of human capacities. These models continue to be ‘evoked today by those who take refuge in the hope of an abundant future to assuage their sense of the injustices of present-day scarcity’ (ibid: 36). In the international discourse on water resources management, water scarcity is taken to be a given and starting point for policy agendas (Postel 1994). Until very recently, the supply-oriented nature of water resources management focused on meeting the ever-growing and competing needs of industry, agriculture and domestic use. The perversity of these needs, for example, growing water-guzzling sugarcane in times of droughts or prioritising cement plants over drinking water schemes, is rarely questioned in state discourse. Even the recent demand-oriented notion of water as an ‘economic good’ does not question the universalised notion of water scarcity (for example, Winpenny 1994). From being a ‘free-good’ pillaged by free-riders, water is converted into an ‘economic good’ that needs to be managed by dam builders and water bureaucrats. It would be an ontological fallacy to deny that there is no such thing as water scarcity or water shortage.3 The ever-increasing length of time spent by women on water collection and the visible decline of groundwater reserves in aquifers are clear indications of one aspect of the problem of water scarcity. There are, however, many other intangible and ambiguous aspects of the problem leading to different types of scarcities felt by a wide range of actors. Hence, the responses to ‘scarcity’ are also varied and there is need to understand their relational aspects. Over and above the understanding of the tangible and physical evidences of the problem (that is, dwindling water levels), the paper also seeks to understand what scarcity means for different actors. The focus is also on how certain actors in Gujarat have constructed a naturalised and essentialised notion of scarcity. In doing so, I follow Yappa’s urgent plea to ‘include the very intellect that helped us to conceptualise’ the problem in the first place (Yappa 1993: 225).
CASE
OF
KUTCH
The crescent-shaped peninsula of Kutch is the largest district in Gujarat and has an area of 45,612 sq km constituting 23 per cent of
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the state. Kutch is like an island as it is bound by the sea to the south and west and by the ‘Ranns’ (salt marshlands) in the east and north. It has nine talukas or administrative sub-districts: Bhuj and Nakhatrana in the north; Lakhpat and Abrasa in the west; Mandvi, Mundra and Anjar in the south and Bachau and Rapar in the east. Apart from its very heterogeneous social and ethnic composition, the region has nine ecological zones (Gujarat Ecology Commission 1994). Kutch has an arid to semi-arid type of climate. Temperatures range from 45 degrees centigrade in the summer to two degrees in winter. Humidity and evapotranspiration are high throughout the year. In some areas, groundwater supplies are abundant, but increasingly, the levels are dropping. Overexploitation of the aquifer combined with sea water ingression has led to salinity in the water and soils and a sinking water table. The groundwater table sinks at a rate of a metre a year and, in two talukas in the district, falls under the over-exploitation category (Gujarat Ecology Commission 1994: 14). Rainfall is erratic and variable and averages about 350 to 370 mm. There is high regional variation, ranging from 440 in southern Kutch to 338 mm in western Kutch (Raju 1995: 10). It only rains a few days a year (15 on an average) with significant intra-district variations. In official discourse, Kutch is considered drought-prone, with droughts taking place every 2–3 years. Scarcity conditions in Kutch are often attributed to dwindling rainfall (Mehta 2001). However, this is a myth, both in Kutch as well as in other parts of the world (cf. Falkenmark et al. 1990). Rainfall data of the past 60 years prior to 1997 indicate that while there have been erratic variations in the quantity of rainfall, there is no evidence to suggest that precipitation rates have changed. A t-test, comparing the rainfall in Kutch over 30 years (1968–1997) with the previous 30 year period (1938–1967), revealed no significant difference (tobt. = –.28, p > 0.052-tail). Inference tests using rainfall data for the talukas of Abrasa, Bhuj and Rapar over a longer period (120 years) were conducted to compare rainfall differences between four 30-year periods (1878–1907, 1908–1937, 1938–1967 and 1968–1997). A repeated measures analysis of variance revealed no significant differences over these periods (Sinclair 1998). Kutchi identity is moulded around water, or the lack of it. Villagers across the length and breadth of the district say that the lack of water is the cause of their misery, the depopulated villages and mass migration
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out of Kutch. Water scarcity is attributed to low rainfall, everdecreasing rainfall and perennial droughts. There is a widespread belief in Kutch that due to the harsh climate, erratic water supply, declining groundwater sources and frequent droughts, the only solution is to get water from the rivers of Gujarat (Kutch Development Forum 1993). That is why all hopes are being pinned on the Sardar Sarovar Project (SSP) which is also made out to be Gujarat’s lifeline (Raj 1991). It is also projected by many to be the only hope for Kutch.
POLITICS
OF
SCARCITY: KUTCH
AND THE
SSP
Plans to provide water for Kutch from the river Narmada have a long history and are no less complicated than the history of the Sardar Sarovar dam itself.4 Though the project was conceived almost a century ago, actual work has been stalled due to inter-state conflicts such as the height of the dam, the extent of submergence and the sharing of benefits. Different committees were set up to resolve all these interstate conflicts, including the Khosla Commission of 1965 and the Narmada Water Disputes Tribunal of 1979. Kutchis maintain that the government of Gujarat did not represent their interests adequately and was biased towards obtaining benefits for central Gujarat despite its more favourable water endowments. As a result, Kutch successively lost out in the several rounds of negotiations. From an original plan of three canals, the Narmada Water Disputes Tribunal sanctioned only the canal along the coast in 1979. Instead of allowing for the irrigation of 9.45 lakh acres of land in Kutch, only 95,000 acres of land were to get irrigation (Kutch Development Forum 1993). In this way, less than 2 per cent of Kutch’s area stands to benefit from the Kutch Branch Canal. The hurdles of the past, however, are few compared with future chances of getting water to the region. Water can only enter Kutch after the Narmada main canal is constructed. Once diverted into the main canal, the water will traverse 500 kilometres before it enters into Kutch. Along the way the canal will cross major rivers such as the Mahi, the Sabarmati and the Banas and their valleys. Before entering Kutch, it will also cross the Little Rann. Here high evaporation is expected. The quantum of water entering into Kutch will almost be
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that of a small river. Consensus still has to be reached on whether the lift or gravity method will be used. No work has started as yet on the proposed Kutch Branch Canal (KBC) as the alignment line has not yet been fixed. The present plan envisages a canal of 200 kilometres in Kutch passing through a tiny coastal strip in eastern and southern Kutch. In this way five talukas stand to benefit: Rapar, Bachau, Anjar, Mundra and Mandvi. Only two of these talukas, namely Rapar and Bachau, are considered to be drought prone. The other three are richer in groundwater endowments and are considered to be part of the belt that has experienced the Green Revolution in Kutch. The industrial belt of Kutch in the Kandla-Gandhidham area is also located in the command area. Thus, the needs of industrial residents and rich farmers may be met more than those of needy farmers in other drought-prone areas. The SSP, if realised, may also intensify the existing class divide in the district. In short, the project of providing water from the SSP to Kutch continues to be embryonic and promises to be a protracted process. It is ironic that water-hungry Kutch should be used by the dam proponents to justify the project, given how unlikely it is that Kutch will benefit significantly from it. Recently a pipeline brought Narmada water to Samakhiyari village in Kutch, some 600 km north of the Sardar Sarovar dam. It remains to be seen whether work on the canals will continue and whether the dam will indeed assuage Kutch’s water needs. The propaganda machinery used by the state as well as decades of political promises has succeeded in ‘manufacturing’ perceptions or myths that reinforce the idea of SSP as bounty. In their book Manufacturing Consent, Herman and Chomsky describe the role of the media in mobilising support for the special interests that dominate the state activity. In Gujarat, the state has manufactured one dominant perception of water scarcity, namely, the Narmada project as the magic bullet. In doing so, political and business interests all over the state are being served.5 Additionally, the discourse on water resources management is overwhelmed by this one project. The focus on externally-supplied water has prevented water-harvesting schemes from gaining widespread acceptance in Gujarat. Officials of the Gujarat State Land Development Corporation (GSLDC) feel that their work is marginalised in water resources departments in Kutch and in Gandhinagar. Their efforts are stymied due to the state-wide
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obsession with the Narmada project. An official of the GSLDC in Bhuj said: If all the 177 watersheds in Kutch would be developed, there would be no need for Narmada water. But our work is not taken seriously. Everybody is obsessed with the Narmada project, but what should the people do until the water comes? We lack human power, our offices are understaffed and during scarcity years, all our work comes to a standstill because our schemes are converted to relief sites. In areas where we have worked, wells have been recharged and water conservation has increased. The need for relief has gone down. But this is a long and protracted process, which cannot take place overnight.
Villagers in the research village also echo these sentiments. Every year they watch helplessly as water flows unchecked into the Rann due to Kutch’s topography. Due to the sharp gradient, all the 97 rivers and streams of Kutch are non-perennial and have a high run-off rate. The limited rainfall flows off in streams and rivulets into the sea or the Ranns. Thus there is great potential for rainwater harvesting and catchment area treatment. However, in the late 1990s, Kutchis had largely bought into the grand narrative of SSP as a ‘water wonder’. They felt that it would solve all their problems and make up for the injustices of climate and history, especially the trail of broken promises made by politicians.6 The widespread ‘manufactured’ nature of debates around the SSP also helped obscure the anthropogenic nature of scarcity to which I now turn.
ANTHROPOGENIC DIMENSIONS
OF
SCARCITY
While the actual volume of rainfall might not have changed, the severity of drought or scarcity is felt more acutely today than in the past. Scientists and local people maintain that the intensity of drought has increased (cf. Murishwar and Fernandes 1988). There are several factors at play. The first factor is increasing de-vegetation, which has certainly occurred due to increased commercial logging in the last five decades. Prior to Kutch’s integration into the Indian Union, the Maharaos had instituted a policy of afforestation. Areas known as rakhals were set aside, where tree cutting and grazing were prohibited. The rakhals were used as game sanctuaries, grass farms
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and for experiments at reforestation. Despite their elitist nature, the rakhals succeeded in experimenting with the types of trees suitable for Kutch’s unique requirements and considerable forest cover was created (Rushbrook Williams 1958: 29). After 1948, institutional restrictions on rakhals ceased to exist and there was a boom in unchecked logging. Cut trees were smuggled out of Kutch into Gujarat for coal, resulting in serious loss of vegetational cover. The wild growth of ‘ganda bawal’ (‘Prosopis juliflora’) has also led to loss of grass cover and the undermining of indigenous tree species. Moreover, it is believed that ‘ganda bawal’ neither attracts rain nor gives moisture to the soil even though it might conserve water within its own system. Bad water management practices have also played a role in vegetational reduction. The world famous grasslands in northern Kutch, for example, have suffered considerably due to the damming of Kutch’s northern rivers. The damming stopped the annual inundation and natural fertilisation by the silt traditionally brought by the rivers. The grasslands are now dependent only on rainfall for their rejuvenation (Ferroukhi 1994: 41]). Another dimension to anthropogenic scarcity is the overexploitation of groundwater aquifers. Access to and control over groundwater in Kutch is marked by tremendous inequality. In my research village, higher castes such as the Rajputs and Jadejas comprise less than 30 per cent of the population, but they control about 65 per cent of the land. They also own most of the wells in the village. Well ownership goes hand in hand with land ownership. Those who have access to land, control the water below them. The rich irrigators in rural areas (popularly known as ‘water lords’) are often responsible for depleting vast amounts of groundwater resources. They tend, however, to attribute declines in the groundwater to climatic change which again obfuscates the real problem: namely, rapidly increasing groundwater use (cf. Olsen 1987). This can only dry out local wells and ponds and has far-reaching effects on biomass regeneration and the water recharging capacity of soils. Clearly, water extraction exceeds water recharging. Consequently, the water table is declining by about one metre every year in Kutch. Groundwater is Kutch’s most precious, yet, most abused resource. Its control lies in the hands of powerful landed owners and irrigators for whom it is the most important form of material capital in their local communities (cf. VIKSAT nd; Shah 1993). These water lords overcome groundwater constraints
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by their willingness and financial ability to invest in annual or even monthly well digging, broadening and deepening operations. They are also successful at circumventing legislation and making the best of institutional loopholes.7 The groundwater crisis, hence, is not just one of dwindling water levels, but instead a crisis of access and control over scarce resources. Irrigators in the region often tend to think short-sightedly. This manifests itself in their willingness to tap scarce water resources during droughts to grow water-hungry crops as the next sections demonstrate. The above discussion should make it clear that the growing water ‘crisis’ in Kutch is largely human-induced. However, in popular discourse, the anthropogenic dimension of water scarcity is obscured. The culpability of large farmers, bad water management practices and state policies is denied. The story of ‘dwindling rainfall’ obscures the fact that water has been misused and regulations constantly circumvented. The power of the water lords remains unquestioned and their greed is exonerated. The water problem is seen as ‘natural’, something beyond human agency, even though rainfall and drought patterns are characterised by high uncertainty and variability. Projects such as the SSP are evoked as the only solution to set right what nature has ostensibly disturbed.
DIFFERENTIATED RESPONSES
TO
SCARCITY
I now turn to village level experiences of water scarcity by drawing on findings from a village which I call Merka in eastern Kutch. The village is situated in the potential command area of the SSP. It is a mediumsized village with a population of 3,463. It has been declared a ‘no source’ village by the state which means that existing water supplies in the village are not sufficient to provide water to its population. Water is, thus, supplied by the Gujarat Water Supply and Sewage Board either by tanker or by pipeline. Merka is a multi-caste village. Caste is the basis for most social interactions and also plays a crucial role in local water resources management practices. Merka’s castes range from the erstwhile feudal lords (jadejas) to rajputs (warrior castes), pastoralists (rabaris, bharvads) and dalits (scheduled castes). Sources of water comprise tanks around
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the village where rainwater is collected, wells with groundwater and ‘virdas’, holes in the riverbed [see Mehta 2005 for details on caste politics and water]. In rural Kutch, the outcome of every year is uncertain. Periods of abundance are interspersed with periods of dearth and impoverishment. Rainfall is largely characterised by uncertainty and can be seen to be ‘regularly irregular’. What are the institutional arrangements that deal with this uncertainty and scarcity? Livelihood strategies display a high degree of flexibility. Let me begin with dryland agriculture and pastoralism and the links between the two. Dryland agriculture employs a wide range of risk minimisation strategies such as the spreading of land assets over different land parcels distributed over a variety of soil types. Decision-making regarding field preparation is often an innovative response to an everchanging environment. For example, if villagers sense a lean year, they are likely to plant drought-hardy crops. If the year appears promising, they invest in millet or cotton. Crop-related decisions are not just dependent on exogenous factors such as the rainfall. Personal need, practicalities and collegiality towards field neighbours are also important factors. Thus, agricultural practices are flexible responses to situations at a given time and given place. They are adaptations to the year, particular soil conditions and to highly specific contingencies arising within the social world. For example, it is usual to confer with field neighbours and collectively negotiate on crops to be grown in a particular vicinity. To borrow Paul Richards’ useful analogy, all these factors make agriculture in Kutch an ongoing performance which is a ‘sequential adjustment to unpredictable conditions’ (Richards 1989: 41). Clearly of course, not all cultivators have uniform strategies. Large landowners with irrigation facilities enjoy the maximum buffer against uncertainty. By contrast, dryland cultivators and marginal farmers face the knocks of scarcity more. The same resource base is also used by herders, since the livestockbased economy has always been one of the most important sources of livelihood in Kutch. The district’s semi-arid to arid type of climate encourages a vegetation of short annual grasses ideal for livestock rearing. The pastoralists are usually sedentary but, during the lean years, the uncertainty of rainfall and forage availability in the village environs makes migration necessary. Those with large herds can
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afford to migrate for about 400 kilometres. Migration thus allows pastoralists with large herds to adapt to a variable and heterogeneous environment. Due to this mobility they can exploit and access different social and ecological patches across the range. One always hopes, quite literally, that the grass is greener on the other side. Each site has its own set of forage opportunities and restrictions. The water situation is always different, as is the reception from the host community. The institutional arrangements need to be highly flexible and entail constant decisions that respond to unexpected contingencies. Those with fewer animals (under 100) cannot afford to migrate and have to make do with locally available grasses. Migratory pastoralism is possible only due to the wide support and social networks spread out over a wide area, indicating the embeddedness of institutions in wider social structures. These social networks include kinship ties amongst other pastoralists but also reciprocal relationships with farmers that have been built over several generations. The relationship between cultivators and pastoralists who use the same resource base has largely been synergistic. Landowners appreciated the manure provided by the pastoralists and they were allowed to pitch camp on fallow or harvested fields during their migratory routes. Recently, however, changes in agricultural patterns have made the relationship less symbiotic, with pastoralists losing out. State policies and interventions have tended to offer agricultural subventions to cultivators, leading to the introduction of double and triple cropping. The migration of pastoralists is actively discouraged with pastoralists being fined or areas being sealed off. Kutch has no state policies that foster pastoralists’ rights to pastures. The diverse ways in which different resource users use the same land and CPR resources are not appreciated. The institutional flexibility displayed by cultivators and pastoralists as they adapt their livelihoods to deal with uncertainty has been undermined, leading to a general worsening of ties between the two groups. Of course, the diversity in livelihood strategies in drought-prone Merka is also shaped by people’s occupational status and wealth assets. I now explore two different households’ experiences of drought in 2000 in the course of a three-year drought cycle. I focus on a rich irrigator family with 100 acres of land and a labouring family with 5 acres of land.8
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TWO HOUSEHOLD PROFILES Raghubhai and his sons and their families live in a majestic old house with a large courtyard. Together they own about 100 acres of land (spread out across the village and under various names). The patriarch is one of the richest men in the village. About 20 acres of land are irrigated by four wells with saline water. Their prize is the 25 acres of land adjacent to a small check-dam from which they extract sweet water which they use to grow commercial crops such as cumin and castor. These activities have actively contributed to depleting the water in village communal tanks. Since this family is the patron of about twenty families spread out over the village in every quarter and caste, these activities do not meet with much resistance. The family has the financial clout to constantly deepen, broaden and extend their wells. This ensures good yields in a dry year. The family grows subsistence crops such as bajra, mug and tal in fields all around the village. In addition they grow fodder crops such as lucerne and jowar on irrigated fields in the dry months. In this way their cattle are assured of fresh green fodder. Cotton and cumin are their chief cash crops, grown on irrigated land. In good years, they can make about Rs 4 lakhs with a profit of about Rs 2 lakhs. Cotton can grow with saline water from their wells. However, cumin cultivation is only possible with sweet water for which they use village communal tanks, often without permits. This family does not suffer tremendously due to the drought. There is no change in their diet and milk continues to be drunk by all members, including women and girls. Even during the drought year of 2000–2001, the third year of the drought cycle, their large land assets and irrigation facilities ensured a modest yield (3,000 kilos of grain and cereal which would last a year and 4,000 kilos of cumin). They somewhat managed to break even against their initial investment of Rs 2.5 lakhs. Drought for this family means fewer yields and fewer profits which mean not having the cash to build a house or celebrate a wedding. In no way does drought entail misery or loss. By contrast, drought means debt, hardship and a somewhat reduced intake of milk and milk products for the household of Kasiben and Khimjibhai, two dalits. They have eight children and earn most of their money through seasonal labour and cultivation. Khimjibhai’s
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father’s land is shared between four brothers. It is so insignificant that Khimjibhai considers himself, for all practical purposes, to be landless. Against a payment of Rs 10,000, the family acquired land from a pauperised darbar which they now cultivate in partnership with him. They have two parcels of land—one is near the Rann and the other is close to one of the dams of the village. They usually grow cotton and castor in one field and grains and cereals in another. In a good year, they can harvest about 400 kilos of grains and cereals. They keep about eight months’ worth and sell the rest. Unlike Raghubhai, their surpluses are not stored and no seeds are stored. Buying seeds can be difficult following a drought year. When the season is favourable, they can earn about Rs 40,000 a year from agricultural activities, largely from cotton sales. In a bad year, their yields are very limited and last for barely a month or so. In 1995, Khimjibhai borrowed money (interest-free) from Raghubhai. In 2000, the three consecutive years of drought had taken their toll and Kasiben had pledged her jewellery to the moneylender against a loan of Rs 6,000. In 2000–2001, they reported that the first two rains were good but the last crucial shower failed. Hence the entire year was disappointing and there was no hope of any profits, but Khimjibhai felt that he would break even. They also could not irrigate one of their fields near the dam because Raghubhai’s family used up all the water in the tank. Since their relationship is one of patronage and dependence, they could not afford to be overtly critical. The effects of drought are far more pronounced on this family and the periods of dearth are more extreme than for the large farmers. During drought periods, the pernicious trap of being indebted to the money-lender is a constant worry, the intake of milk produce is drastically decreased and the dependence on casual labour and relief is strong. But even this family does not compromise on food intake during the drought. They continue to eat pulses, grains and vegetables, largely purchased from the shop. Clearly, without relief work and other employment opportunities this dalit family would encounter far more deprivation than it does currently. These household profiles demonstrate two things: one, livelihood and drought-coping strategies in Merka are quite diverse and adaptable; two, they are highly dependent on wealth and assets
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which explains the vast differences between the two families; three, there is a high correlation between wealth and security. Secure livelihoods are maintained by large farmers who also have irrigation facilities which they enjoy, often to the detriment of poorer households’ well-being. For example, their over-exploitation of the water in the communal tanks prevents the poor in the village from enjoying a minimum level of irrigation. By contrast, the dalit family with its meagre assets experiences high insecurity. Their dependence on statesponsored relief measures is very high. Thus, scarcity and drought mean different things to different resource users and their experiences and perceptions are largely linked with people’s wealth, assets and social positioning. I experienced drought in Merka in 1995–1996 which was a semiscarcity year and in 2000, at the end of the three year drought cycle. In 2000 Merka’s rainfall was better than the Kutchi average and those with irrigation facilities were not doing too badly. But the three years of drought had visible manifestations: unlike in 1995–1996, people clearly seemed to be weighed down by fodder scarcity, low agricultural yields, debts and problems with ‘ganda bawal’. They also complained about the lack of liquid cash flow and few or no off-farm employment facilities. But, the relative normalcy of drought, no matter how difficult and hard, was also evident. In response to my questions about drought, people would laugh: We are used to drought. Two years are bad and one year is good. This is our life. When it’s bad we disappear from the village. When the rains come, we race back. This is our home and we are happy here.
But this acceptance of the cyclical nature of drought and scarcity may not always persist. Even the highly adapted, flexible and diverse livelihood strategies of both cultivators and pastoralists will not always be able to withstand the problems of dwindling groundwater aquifers, depleted vegetation, and soil degradation. There are limits to local resilience. I do not want to overly glorify ‘adapting to and living with scarcity and uncertainty’. However, understanding their dynamics will help planners and policy makers overcome their ‘dryland blindness’ (Mehta 2000) and promote interventions that contribute to mitigating scarcity, instead of naturalising it.
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Largely, planners have not built on local people’s coping strategies vis-à-vis scarcity. Instead of promoting dryland agriculture or agropastoralist occupations, they have neglected them. They do not view scarcity as a temporally bound phenomenon. Instead, Kutch is made out to be permanently drought-prone and cursed by scarcity. Statesponsored water interventions have not succeeded in mitigating scarcity. In fact, some of them have exacerbated the water problems in certain areas, making scarcity indeed ever-present and all-pervasive. These flawed interventions arise because of the prevailing world-views and experiences of policy makers—their dryland blindness—and because of institutional weaknesses in water management programmes. At one level, the people of Kutch imagine and experience scarcity as something that is cyclical, periodic and part of their lives. Increasingly, however, scarcity has become naturalised and all-pervasive, due to a combination of discursive, socio-political and institutional factors. As long as this situation persists, scarcity and its accompanying ‘scarcity and relief industry’ will dominate life in Kutch.
DISCUSSION This paper has argued that scarcity as a concrete period of dearth either of water, milk or fodder, which is felt acutely by the human and livestock population in rural areas, has always been a part of Kutch. Scarcity is not permanent, but interspersed with periods of abundance and bounty. Several strategies, rooted in local knowledge systems and practices, exist to cope with seasonality and uncertainty and rural livelihoods have adapted to the variable and uncertain nature of Kutch’s rainfall. The coping strategies against scarcity are highly differentiated. The wealthy of the village tend to have the most options and can resort to a wider range of coping strategies than the poor. To a certain extent, social forms of differentiation such as caste and gender also legitimise unequal access to and control over scarce resources. Powerful discourses of scarcity have largely served the interests of elites (e.g., politicians, business constituencies and irrigators). They have obscured the fact that there is highly unequal access to and control over land and water resources in Kutch. They also succeed in
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essentialising scarcity in Kutch and making it seem ‘natural’, thus ignoring its anthropogenic nature. Scarcity is also used to legitimise the controversial SSP by evoking notions of its bounty and potential contribution to Gujarat’s development. With respect to the large dam, there appeared to be unambiguous consent all over Gujarat that the SSP was the only way to mitigate the problem of water scarcity. However, this consent was largely ‘manufactured’ due to the sociopolitical processes discussed. Thus, there emerges the need to analyse water scarcity at two levels: one, at the discursive level and two, at the material level as a biophysical problem. On the one hand, de-vegetation, dwindling groundwater aquifers, soil salinity and the general undermining of local strategies to cope with scarcity result in the rural poor feeling the impact of drought more severely. These are ‘real’ manifestations of the biophysical problem of water scarcity and they are different from narratives of scarcity which have a ‘manufactured’ nature. Hence, it might be useful to distinguish between ‘real’ and ‘manufactured’ scarcity (see Table 2.1). ‘Real’ scarcity is a biophysical phenomenon with ecological and social dimensions (e.g., dwindling aquifers, the depletion of water resources in a communal tank or a longer trudge for rural women). It is, however, usually cyclical given that periods of abundance are interspersed by periods of dearth. It is highly dependent on resource TABLE 2.1
‘Real’ and ‘Manufactured’ Scarcity Real Scarcity
Manufactured Scarcity
Biophysical Phenomenon with Ecological and Social Consequences
Constructed Problem
e.g., dwinding aquifers • Declining grass cover • Fodder problems • Longer trudge for women (marginalised groups particularly disadvantaged) • Cyclical (periods of abundance and dearth) • Relative to agricultural, meteorological and hydrological factors
• Scarcity is universalised • Scarcity as natural • Anthropogenic dimensions are whitewashed
• Relief and drought industry • Powerful stakeholders benefit from ‘scarcity’
• Scarcity as permanent
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availability and exogenous factors such as rainfall and climate, which are variable and erratic. Real scarcity is relative to several hydrological, meteorological, agricultural factors and is also linked with social inequality. This complexity is obscured by ‘manufactured’ scarcity, which is a discursive construct. Scarcity is essentialised and universalised. Seen as permanent, the cyclical dimensions of scarcity are ignored. Scarcity is made out to be ‘natural’, thus ignoring the anthropogenic areas of culpability. The ‘manufactured’ nature of scarcity legitimises controversial schemes such as the SSP and also unequal access to water and land resources. Why is this distinction useful? The paper has demonstrated that environmental problems such as water scarcity are created and reproduced at both the discursive as well as at the biophysical levels. What is the nature of their interaction? The ‘manufacture’ of scarcity at the discursive level obscures several important aspects of ‘real’ scarcity. One, inequalities often shape access to and control over water. Two, water scarcity is not natural, but instead, largely due to anthropogenic interventions, resulting from bad water management and land use practices. The naturalisation of scarcity at the discursive level does not help mitigate the symptoms and causes of ‘real’ scarcity. In some cases, ‘real’ scarcity might be exacerbated due to the popular narratives (e.g., water tables might continue to decline if the decrease in groundwater resources is attributed to climate change rather than to uncontrolled extraction). Furthermore, the ‘manufacture’ of scarcity might not result in the creation of solutions appropriate to local needs and conditions.
CONCLUSION I have used the case of Kutch to highlight the multifaceted nature of scarcity and how it is socially and politically constructed to meet certain ends. This paper largely focused on how scarcity was used to legitimise the construction of large dams and create a ‘scarcity’ industry. Internationally (unlike in India, China and elsewhere), the rhetoric of large dams and scarcity may be on the wane but it is rapidly
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being replaced by a new mantra. We are currently witnessing a new twist to the currents in the water domain. The key issues today are cost recovery, the need to recognise water’s economic value and the need for private sector involvement as a means to efficiently manage water and provide it to ‘all’ (Mehta 2000, 2002). As I discuss elsewhere, scarcity is used to justify these policy directives too (see ibid). It is telling that at the WSSD in Johannesburg, world leaders failed to endorse commitments to reduce wasteful consumption of nonrenewable energy, not least due to the powerful lobbies of the energy and oil sector in the US. However, almost as a way to show that there was a consensus on something, global actors with some reluctance acknowledged a looming water crisis and pledged commitments to the millennium targets around sanitation. Without diminishing the importance of commitments to enhance access to water and sanitation to the billions who lack it, some questions begged to be asked: does the rhetoric around ‘water crises’ and ‘water scarcity’ help to mitigate current water problems? Or are important aspects merely obscured? The default position since the 3rd World Water Forum at The Hague is that more needs to be done: more money spent, new largely ‘private’ actors roped in, new institutions created. But the existing actors hardly resemble an effective cast and their understanding of the script is still somewhat shaky. Thus, we have ideological leaps preceding rigorous analysis, driving an industry of self-justification and, most dangerously, presenting ‘evidence’ that is only partial fact. The huge interests, both financially (consider the emerging global market for water services especially in urban areas and the push towards water privatisation by the World Bank and the IMF) and developmentally in terms of poverty reduction (the billions who lack adequate domestic water and basic sanitation) make the stakes extremely high. Watch this space…
ACKNOWLEDGEMENTS Research was conducted in Kutch in 1995–1996 for which funding was provided by the Overseas Development Institute, London.
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Subsequent research took place over short visits in 1998 and 2000. I am grateful to Annette Sinclair, Himanshu Thakkar and the Institute of Desert Ecology for providing the rainfall data and helping with the analysis, P. Kaul for suggesting I read Hermann and Chomsky (1994) and Oliver Burch for his help. Most of all, I express my thanks to the Sanghvi family, all my interview partners and my friends and quasi ‘family’ in the village ‘Merka’ where I conducted my detailed fieldwork. I will always be grateful to them for their continual cooperation, understanding, warmth and inspiration.
NOTES 1. Jean-Paul Sartre in Xenos (1989). 2. Modern economics is premised on human needs and their satisfaction: an increase in human needs leads to scarcity of goods; institutions such as property and markets mediate transactions with these scarce goods. In this way, the enterprise of economics is legitimised and the concept of scarcity is universalised (Xenos 1989: 71). 3. See Matthew Gandy (1996) for the ridiculous dilemmas that emerge out of the relativist trap in viewing environmental problems. 4. It is not possible to present all the controversies of the SSP here. Please refer to Mehta (2001), Fisher (1995) and Morse et al (1992). 5. For example, the Gujarat government has been promoting industries coming up along the ‘Golden Corridor’, largely situated in the SSP’s command in Central Gujarat. It has attracted investments worth Rs 75,000 crore for this purpose (Desai 1995). 6. I suspect that their experiences with shoddy resettlement and rehabilitation after the earthquake has probably further reinforced their sentiments of mistrust and resentment of Gujarat’s politicians. Today the obsession with the SSP is less than what it was before due to the problems encountered with survival since the earthquake. 7. Gujarat was the first state to pass a groundwater law in 1976, which dealt with the regulation, and licensing of tubewell construction and control of groundwater use. Its implementation, however, has been difficult given the strong political opposition and because rights to use groundwater go hand in hand with land ownership (VIKSAT nd: 11). The skewed pricing of electricity contributes to uncontrolled rates of water extraction. 8. For reasons of space, I cannot provide ethnographic data on pastoralist households and coping strategies. For details on the livelihood strategies of a pastoralist family with moderate livestock and land assets and on pastoralist livelihoods more generally, see Mehta (2005).
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REFERENCES Balla, Balint. 1981. ‘Ressourcenknappheit und Soziales Handeln’ in Friedrich Rapp (ed.), Naturverstaendnis und Soziales Handeln, Wilhelm Fink, Muenchen, pp. 214–27. Desai, Bharat. 1995. ‘Narmada Dam will not Help Save Kutch’, The Telegraph, New Delhi, May 19. Falkenmark, M., J. Lundqvist and C. Widstrand. 1990. ‘Coping with Water Scarcity, Implications of Biomass Strategy for Communities and Policies’, Water Resources Development, 6 (1): 29–43. Ferroukhi, Lyes. 1994. An Ecologically Sound Water Harvesting System under Threat: A Case Study of the Banni Pastoralists’ Knowledge in the Grasslands of Kachchh District, Gujarat State, India, Swedish University of Agricultural Sciences Working Paper 266, International Rural Development Centre, Uppsala. Fisher, William (ed.). 1995. Towards Sustainable Development?: Struggling over India’s Narmada River, ME Sharpe, Armonk. Gleick, P.H. 1993. Water in Crisis: A Guide to the World’s Fresh Water Resources, Oxford University Press, Oxford. Gandy, Matthew. 1996. ‘Crumbling Land: The Postmodernity Debate and the Analysis of Environmental Problems’, Progress in Human Geography, 20(1): 23–40. Gujarat Ecology Commission. 1994. Current Ecological Status of Kachchh, GEC, Vadodara. Herman, Edward and Noam Chomsky. 1994. Manufacturing Consent. The Political Economy of the Mass Media, Vintage, London. Kutch Development Forum. 1993. A Demand for Review of Water Allocation to Kutch, Recommendations, Observations, Extracts, From Report of Review Group on Narmada, KDF, Bombay. Mehta, Lyla. 2000. ‘Drought Diagnosis: Dryland Blindness of Planners’, Economic and Political Weekly, 35: 27. ———. 2001. ‘The Manufacture of Popular Perceptions of Scarcity in Gujarat, India: Dams and Water-Related Narratives in Gujarat, India’, World Development, 29(12): 2025–41. ———. 2002. ‘Struggles around ‘Publicness’ and the Right to Access: Perspectives from the Water Domain’ in Inge Kaul et al (eds), Global Public Goods: Making Globalisation Work for All, Oxford University Press, New York. ———. 2005. The Politics and Poetics of Water: Naturalising of Scarcity in Western India. Orient Longman, India. Morse, B. and Thomas Berger. 1992. Sardar Sarovar: Report of the Independent Review, Futures International Inc, Ottawa. Murishwar, Joy and Walter Fernandes. 1988. ‘Marginalisation, Coping Mechanisms and Long-Term Solutions to Drought’, Social Action, 38: 162–78. Olsen, W. 1987. ‘Manmade ‘Drought’ in Rayalaseema’, Economic and Political Weekly, 14 March, 441–43.
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Postel, S. 1994. Dividing the Waters: Food Security, Ecosystem Health and the New Politics of Scarcity, Worldwatch Paper 132, The Worldwatch Institute, Washington. Raju, K.C.B. 1995. ‘Strategies to Combat Drought in Kutch’. Workshop on Strengthening of Community Participation in Disaster Reduction and Role of NGOs, 13–15 January, New Delhi, Vivekanand Research and Training Institute, Mandvi. Raj, P.A. 1991. Facts, Sardar Sarovar Projects, Narmada Nigam Limited, Gandhinagar. Richards, Paul. 1989. ‘Agriculture as a Performance’ in Robert Chambers, Arnold Pacey and Lori Ann Thrupp (eds), Farmer First, Farmer Innovation and Agricultural Research, Intermediate Technology Publications, London, pp. 39–42. Rushbrook Williams, L.F. 1958. The Black Hills, Kutch in History and Legend: A Study in Indian Local Loyalties, Weidenfeld and Nicholson, London. Shah, Tushaar. 1993. Groundwater Markets and Irrigation Development: Political Economy and Practical Policy, Oxford University Press, Bombay. Sinclair, Annette. 1998. ‘A Statistical Analysis of Rainfall Data in Kutch’, Mimeo, Institute of Development Studies, University of Sussex, Brighton. VIKSAT (nd): Debating the Options: Groundwater Management in the Face of Scarcity, Gujarat, India, VIKSAT, Ahmedabad. Winpenny, James. 1994. Managing Water as an Economic Resource, Routledge, London and New York. Xenos, Nicholas. 1989. Scarcity and Modernity, Routledge, London. Yappa, Lakshman. 1993. ‘What are Improved Seeds? An Epistemology of the Green Revolution’, Economic Geography, 69(3): 254–73.
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3 Karnataka: Kudremukh Of Mining and Environment* MUZAFFAR ASSADI
With the recent Supreme Court verdict on Kudremukh Iron Ore Company, the associated discussions on mining by KIOCL are coming to a close. However, the environmental movement it spawned has several other issues to address, and importantly, the task of creating space for a larger debate from within.
T
he Supreme Court’s verdict on mining by the Kudremukh Iron Ore Company (KIOCL), a profit-making public sector company in the Kudremukh region of Karnataka, has brought to an end several uncertainties. The verdict came at a time when Karnataka was witnessing agitations on the Cauvery issue in districts like Mandya and Mysore. Even though much importance has been attached to the Cauvery issue, as it was identified with the politics of the dominant Vokkaligas caste and the ruling party, the Kudremukh issue remains a major concern for many, including environmentalists, ecologists, intellectuals and civil society groups. It also has larger implications for workers, tribals, the ecology and sustainability of a larger population in the districts of Chikmagalur, Shimoga, Dakshina Kannada and Udupi. Further, the Kudremukh issue also combined important issues
∗ This article has already been published in Economic and Political Weekly, 7 December 2002.
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with regard to the national park, leasing ecologically sensitive lands to the company and final settlement of tribals. In the process, it has also become the issue of identity, culture, capitalism, life after modernity and environmental crises. One thing is fairly clear, that in the larger context, issues need to be located in the secondary contradiction between ecology/environment on the one hand, and capitalism on the other. Interestingly, there are ideological arguments which largely came from environmental groups, and some of them are sympathetic to the radical left too. This gave the movement a radical tone. One cannot, however, deny the presence of non-radicals in the movement or in the discourses. Kudremukh is spread out between Chikmagalur, Udupi, Dakshina Kannada, and Shimoga districts. Its name is derived from the ‘horse face’ of the Western Ghats region, which is rich in iron ore. In fact, the Western Ghats is known as one of the 18 hotspots of biodiversity. It is also ‘“a part of the Global 200” regions identified by WWF for concentrating conservation efforts’ (Nagarika Seva Trust 2001). The Kudremukh region is also known as the origin of three important rivers, Thunga, Bhadra, and Netravathi. However, iron ore mining has completely changed the landscape of the region. The presence of iron ore was known during the colonial period in the early 20th century. However, no serious attempt was made to extract iron ore till the 1960s. During the colonial period, iron ore was largely extracted from Kemmannu Gundi in Chikmagalur to be supplied to the Bhadravathi Iron and Steel factory. It was in the 1960s that the National Mineral Development Corporation evinced interest in extracting the iron ore and leased in 5,128 hectares (ha) (DYFI 2001) of land for 30 years from the government of Karnataka. In 1972, the NMDC returned nearly 613 ha of land back to the government with the understanding that in due course the latter would allow extraction of iron ore in the leasedout land. At the time of forming the KIOCL in 1976, the NMDC transferred 4,605.02 ha of land to the company. This land includes forest land of 3,203.55 ha, other government land of 1,220.03 ha, and company’s private property of 181.44 ha. However, what prompted the formation of KIOCL was the keen interest shown by the late Shah of Iran. Iran agreed to invest $ 630 million to establish the mining industry in this eco-sensitive area; in return, the iron ore in concentrated form was to be exported for industries in Iran. The company came into existence with the intention
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of producing an average of 7.5 million tonnes of concentrated iron. Prior to the agreement with Iran there was an attempt to establish mining extraction industries in collaboration with US and Japanese companies. However, since the iron content was less—about 30–33 per cent—the agreement fell through. However, during the 1970s, the establishment of a company in the Western Ghats region and export of iron ore was seen as a part of modernity—it opened up a large number of new avenues of capital for the coastal belt. A new township came up in Kudremukh, a port called New Mangalore Port was established, this was followed by fertiliser companies, and the state highway was laid. In fact, during the 1970s, the very name Kudremukh symbolised the modernity of the region. During this period, no voices were heard against the company, and issues of ecology/environment were not mentioned. This euphoria was jolted by the collapse of the Shah’s regime in 1979. However, Rumania came to the rescue of KIOCL and agreed to establish an iron pellet unit. This helped the company enter into a larger market at the global level during the 1980s. At present, KIOCL exports 82 per cent of its production to Japan, Iran, China, Australia, Bahrain, Turkey and Indonesia. The balance, 18 per cent, is sold within the country. It is in this context of interacting with the global market that the contradiction between ecology/environment and capitalism became apparent. This contradiction sharpened with environmentalists opposing further extension of the initial leasing period, which ended in July 1999. It was then extended for a year. Even the central government pleaded for an extension of five years. With the Supreme Court verdict going against it, the company’s fate is finally sealed. KIOCL is accused of violating environmental norms, causing cultural displacement, and disrupting social life. All these translated into the environmental movement in the Kudremukh region. Even though the movement is almost 10 years old, it has sharpened in recent years. The second important issue that created space for the environmental movement was a government order declaring the Kudremukh region as a national park by clubbing together five important reserved forests. Meanwhile, the government’s decision to de-notify 3,703.55 ha from a total of 60,032.38 ha of national park to facilitate KIOCL also created problems. It also led to debates on whether forcible eviction of tribals is justifiable in the name of the national park, whether they should be allowed to live in the deep forests or whether they should
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remain ‘premodern’, and finally, on how to rehabilitate them. It is in this context that the argument that the tribals destroy the forests is untenable. They have a symbiotic relation with nature. Their culture, identity, and lifestyles are identified with the forest. However, they have been the victims of the state, through the operation of the state machinery. This is evident in the way tribals are denied the right to collect forest produce, subject to restricted movement inside the forest, and are victims of false charges. The state is now attempting to evict more than 20,000 tribals living inside the forest to the periphery, ostensibly in the name of the national park. This has consequences on tribal life: tribals have to struggle for new identities, their cultural practices will undergo changes leading to cultural loss, and they would perpetually remain as victims of the state both inside the forest and outside it. The third important issue is the ecological disaster that the mining industry is bringing, mainly to rivers and to the biodiversity. The Kudremukh region is well known for the Shola forest. There is an apprehension that mining would not only affect irrigation, but in the longer run it will also change the cultural practices of the people. Besides, it will erase memories of the presence of rural culture in due course. This is because the river water is identified with cultural practices, civilisation, identity, and lifestyle. More than two lakh farmers, with 8,300 ha of agricultural land, depend on river water in the Kudremukh region. Any loss of river water is construed as a loss of lifestyle or identity. Therefore, the opposition to mining, including the extension to KIOCL, came from far-flung areas along the course of the river. A large number of intellectuals have joined the anti-mining/ environmental movement against Kudremukh. One such well-known intellectual is U.R. Ananthamurthy, winner of the Jnanapeetha award. He led the ‘Thunga Ulisi’ (‘Save Tunga’) agitation a few months back, and had earlier opposed mining by KIOCL and demanded ‘a new look for development’. However, he was not the first literary figure to enter into the debate or the environmental movement in Karnataka. During the 1980s, another Janapada award winner, Shivram Karanth, was involved in the Kaiga struggle in the Uttara Kannada district. He also unsuccessfully contested a Lok Sabha election. Nonetheless, Karanth’s concern was expressed both in his literary work and active support to the environmental movement; his famous novel Mookajjiya
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Kanasugalu (‘Dreams of Mookajji’) deals with ecological issues. In his literary works he also tried to construct the symbiotic relation between the environment, culture and gender. U R Ananthamurthy, in various novels, as well as in his editorials in Rujuvathu, also expressed his concern about mega projects, and destruction of forests (such as his position on the Silent Valley). Therefore, his concern for ecology becomes an extension of his own readings of or about culture/naturemodernity (‘life after modernity’)—identity paradigm. This paradigm quite often mediated through the defence of indigenous populations or a critique of modernity and/or complete identification with social movements such as the ‘Thunga Ulisi’ and the anti-mining agitation. However, what changed the course of the environmental movement was the participation of Medha Patkar on May 3 in a rally in Sringeri and the subsequent attempt by the ‘new Hindutva’ to disrupt the movement and the rally. This came in handy for the state government to break the movement, which obviously made Hindutva and the state strange bedfellows. Nonetheless, there are others too who ‘existed but not enlisted’ in the environmental movement in Karnataka. They are unknown beyond the state, including the intellectual discourse on environment. One important name that requires space in the intellectual discourse is the late Kusuma Sorab, a doctor, who died four years back while returning after filing a stay order against mega-projects in Uttara Kannada. Sorab, popularly known as ‘Kusumakka’, was a Gandhian, participated in the ‘Janandolan’ of Medha Patkar, and Chipko movement of Bahuguna. She established the Uttara Kannada Parisara Koota (UKPK) and fought against the projects at Sharavathi, Kaiga, Bedthi and Taj Resort. She was also involved in the ‘Save Western Ghats’ movement and initiated the joint forest plan. As a Gandhian, she established schools for the mentally retarded, night schools, mahila mandals and laboratories for rural medicines in several places in Uttara Kannada. The ‘Uttara Kannad Ulisi Andolana’ (UKUA), which she led, came out with 20 demands, including declaring Uttara Kannada as a forest-agriculture-fisheries district, shelving the tourism plan, giving up privatisation of Karwar and Ankola ports, reconstruction of forestry, stopping Kaiga nuclear plant, and rehabilitation of those displaced by Konkan Railway and other projects. It is here that Kusuma Sorab becomes important: as an ecologist/environmentalist she understood or analysed the issues from the larger context of
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globalisation/western capitalism, but at the same time she remained within the domain of Gandhian values/liberalism. She richly deserves a place in the intellectual discourse on the environmental movement in Karnataka in particular, and India in general. Other than individual intellectuals, Karnataka also witnessed many environmental movements in its post-colonial history. One movement that received much acclaim was the ‘Kittiko Hattiko Chaluvali’ or popularly called ‘Kusanur Horata’ in Dharwad district in the late 1980s. This struggle began when the Karnataka government leased out 30,000 ha of land to the Harihar Polyfibre Company to plant eucalyptus saplings. It began the grand design of social forestry, which later on was converted into monoculture. ‘Samaja Parivarthan Samudaya’ took up the cause of the peasants who were displaced and rendered unemployed. On November 4, 1987, peasants destroyed thousands of saplings in Kasanur village. As a result of the struggle the government ordered the closing down of the company. During the same decade, Uttara Kannada enacted the ‘Appiko Chaluvali’ (‘Hug the tree’) campaign, which started from Balegadde village, and continued for 38 days. The ‘Against Bedthi Project’ movement also started during the same decade, as did the agitation against big projects like Congentrix; the latter withdrew from India recently. However, environmental issues were also clubbed or embedded in the larger discourse of other social movements. One such was the peasant movement under the Karnataka Rajya Raitha Sangha (KRRS). It took up issues such as social forestry, mining, dumping, urban space, air pollution, and in recent days, its concern for environment mediated through its resistance to Bt cotton and patenting biodiversity. Even dalit movements raised issues through opposition to monoculture in social forestry. These issues, however, did not contribute to the growth of a broad-based environmental movement by involving different ideological streams, discourses and categories. The recent struggle in Kudremukh was able to cut across the boundaries of class and ideological streams, discourses and categories. There are three important issues other than opposing any extension of mining lease. All these are linked to and revolve around the larger issues of ecology/environment: declaring Kudremukh area as a national park, and issues of tribals and their rights, and ‘Thunga Ulisi’ (‘Save Thunga’). All these became part of a larger struggle against the Kudremukh Iron Ore Company. They are inter-connected and have given rise to different discourses and perspectives.
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ENVIRONMENTALIST ARGUMENT Within the environmental movement there are two streams other than the intellectuals who had sympathised with the larger issues of the movement. Dakshina Kannada Parisarasktara Okkuta (DKPO), Environment Support Group, Wildlife First, Kalpavriksha, Environment Action Group, Green Watchers Association, Nature Conservation Guild represent one stream. All these belong to critical modernist, liberal/Gandhian, civil society groups. Their opposition to any further extension of mining came largely on the grounds that the company perpetuated ‘ecocide’ from time to time, that it is creating serious ecological problems, is involved in violating the laws of the land on pollution, conservation and environmental protection. Their opposition also came because the company was said to be causing serious damage to the irrigation potentiality of the Bhadra river, an important lifeline of Karnataka and Andhra Pradesh; the slurry leak from the pipeline caused damage to the ecology. Further they argued that [Saldhana et al. nd] ‘the extensive mining operation of KIOCL over the past 25 years have depleted the Shola forest and replaced them with heaps of mined waste. Several naturalists have accounted for the disappearance of many varieties of fish, decline in agricultural productivity downstream due to deposition of mine tailings. Communities complain of sickness and disease due to pollution of a river, a major source of potable water.’ Meanwhile, they also demanded relocation of the company to Sandur in Bellary district wherein the iron ore content is much higher (60 per cent). At the same time they also had differences on certain issues. For example, Green Watchers supports the national park and the relocation of tribals. On the contrary, DKPK is in favour of allowing the presence of tribals within the national park area, giving them all traditional rights over forests. However, radical discourse came from the Kudremukh Rastriya Udyana Virodhi Okkuta (KRUVO) (Organisation against Kudremukh National Park). Its analysis is much more comprehensive in that it tries to understand the issues from the historical and materialistic perspective and also from the larger perspective of globalisation. It is also spearheading the ‘Thunga Ulisi’ movement. This environmental group disclaims the eco-preservation in the discourse on the national park. Its opposition to the tribals’ eviction is rooted in historical arguments, that the forests were historically
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appropriated through three forms of capitalism, rather than by the tribals: mercantile capitalism, industrial capitalism and finance capitalism. All this exploitation was a part of colonial strategy. Nonetheless, this strategy was followed by appropriation of social and political power of the tribals through a set of rules, including taking over the tribal lands/state. Similarly, the Western Ghats became the victim of the colonialist politics of expanding power: the forest was looted to lay the railway track and to manufacture match sticks, the forest was cleared to pave the way for coffee plantations thereby introducing capitalist economy in the neighbourhood. The post-colonial era saw the continuity of the same trend, except that new issues were added. (For coffee plantations nearly 2,10,000 acres, for dams 65,000 ha, for mining 63,000 ha and for planting acacia 35,000 ha were cleared) (KRUVO 2002). ‘Whatever the colonialists did in 200 years, independent India did in 50 years’, argues the Okkuta. It is in this context that the movement added two dimensions: one, the desire to propagate Indian capitalism under different pretexts than the plantation economy; second, the larger design of globalisation. In the latter case, the larger design of western capital is to appropriate the biodiversity and thereby re-employ economic imperialism over the third world countries through declaring the forests as ‘national parks’. Therefore, opposition to national parks becomes an issue of retrieving a place for tribals, including their right to exist as a social category, opposing the neo-colonisation of the country, and opposing the larger nexus between the state and globalisation/western capitalism. A similar argument is discernible in the ‘Save Thunga’ agitation. Nonetheless, this theoretical formulation has some problems: how to view the secondary contradiction emanating from environment and capitalism. The most important question is how to deal with the issues when there are critical modernists within the movement who view the larger issues in terms of ‘life after modernity’ and those who are vouching for neo-Marxism/radicalism. It is here that uncritical support is not forthcoming whereby a broad-based environmental movement is facing a crisis. It is also facing crisis from outside, when the parliamentary left, including the working class, supported the KIOCL and extending the leasing period. There are also organisations opposing the move to close down the Kudremukh. Groups such as the company’s workers, Bharatiya Kisan Sangh, Workers’ Union of New Mangalore, MCF Workers Union and
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ITI formed a group called ‘Kudremukha Ulisi’ (‘Save Kudremukh’). More than ecological issues their main concern was to protect the interests of the workers who would be retrenched in the event of closure. The Hind Mazdoor Sabha and Kudremukh Shramashakti Sangatane demanded extension of mining lease for 20 years and maintained that the mining operation will not have any adverse effect on the environment. It also argued that the closure of mining activities would lead to the wastage of infrastructure created over the years with a replacement value of around Rs 3,000 crore. One important left group, which supported the Kudremukh project, was the Democratic Youth Federation of India, a wing of the parliamentary left. For them the survival of Kudremukh became an ideological issue, including the survival of 2,454 workers (1,965 workmen and 489 executives, and also, nearly 3,000 families directly dependent upon the mining operation for their livelihood). Its differences with the environmentalists lie in locating the present ecological crisis to the lack of development than its presence in a developing country like India. On the one side it disclaimed the larger criticism levelled against the company. On the other, the parliamentary Left saw the opposition as part of a larger strategy in the context of globalisation; since the company is an export-oriented one, there is a sinister attempt to curtail its strength and thereby remove any competition coming from third world countries to other global actors. Meanwhile, it came out with 10 suggestions including construction of more anti-pollutant dams, sowing the lands with Shola grass, changing the pipelines to prevent leakages and forming a social audit committee. Most importantly, it opposed any attempt to privatise the company. These episodes show the different perspectives, ideological streams and discourses within the environmental movement. Nonetheless, with the Supreme Court verdict going against KIOCL, the issues pertaining to mining have come to a close. This does not mean the withdrawal of the environmental movement into its shell. There are a large number of issues to be addressed—drinking water, clean air, urban space, greenery in the Western Ghats. The most important task is to create a space for larger debate from within and also to create a new ideology to understand the contradiction between environment and capitalism in a proper and clear-cut perspective.
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REFERENCES DYFI. 2001. Kuduremukha Ganigarike-Vastava Mattu Mithye, Mangalore. KRUVO. 2002. Kudremukha Rastriya Udyana Yojane Virodha Eke? Hege? (Pamphlet), Kudremukh Rastriya Udyana Virodhi Okkuta, Nammanadu, Shimoga. Nagarika Seva Trust. 2001. ‘Escalating Ecocide in the Kudremukh National Park’, fact-finding report, Bangalore. Saldhana, Leo F. et al. (nd). ‘White Elephant in a Green Forest’, Environment Support Group.
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4 Report of Investigation into Nandigram Mass Killings A REPORT BY SANHATI*
BACKGROUND
A
ssociation for Protection of Democratic Rights (APDR) and Paschim Banga Khet Majoor Samity (PBKMS) put forward a petition to the Kolkata High Court on 15 March 2007 urging immediate intervention of the court to reinstate safety and security of the villagers in Nandigram. The organisations also pleaded for an interim order restraining the state administration from preventing them from reaching Nandigram to provide assistance to injured and deceased villagers. On 15 March 2007, a Division Bench of the High Court comprising Honourable Chief Justice S.S. Nijjar and Honourable Justice Pinaki Chandra Ghosh also took suo moto note of the incident. It also passed orders on the petition of APDR and PBKMS and reprimanded the state government stating: it seems as if the Police Department which is under the control of the Home Department is not even aware of the existence of Article 21 of the Constitution of India…. This Article specifically guarantees that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. Oblivious of the aforesaid guarantee, the police has resorted to gun firing on a large crowd protesting against the proposal to acquire their land.
∗ The full report can be downloaded by clicking the following link: http://sanhati. com/wp-content/uploads/2007/03/nandigram_final_report.pdf.
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Further the order states: we are satisfied that this action of the police department is wholly unconstitutional and cannot be justified under any provision of law.
The court also stated: Such kind of force cannot be justified except in the cases of armed insurgency or warlike situation. Innocent farmers and villagers can hardly be put into the aforesaid bracket.
The court in its order directed the following: It restrained the state administration from stopping the petitioner organisations and other NGOs from reaching Nandigram to provide assistance to injured and deceased villagers. The court directed the CBI to immediately send an investigating team to the strife-torn area and look into the circumstances that led to the police firing which claimed innumerable casualties in Nandigram. The CBI team is directed to immediately visit Nandigram and any other surrounding affected area and collect the entire relevant materials of firing by the police and combat forces to be presented before the court in the form of a report. It directed the district administration to ensure that the unclaimed dead bodies are handed over to the appropriate authorities and the identified dead bodies are handed over to the lawful claimants after due legal formalities have been concluded, such as post mortem and inquest report, so that the relatives are able to perform the last rites of the deceased. The state government has also been directed to file an affidavit setting out the reasons for the police action which has been taken against the population of Nandigram by resorting to indiscriminate firing by the police. The affidavit should also disclose the material on the basis of which the order for firing was issued. The court also directed that under no circumstances any evidence should be destroyed by any person and instructed the CBI to collect all evidence including the post-mortem conducted on the victims of the firing.
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In view of the absolutely volcanic situation created, the court further directed the state government to ensure the safety and well-being of all the general public in the area. The state is also directed to take adequate measure to provide medical facilities to the injured villagers. In response to the above, the two petitioner organisations along with some concerned individuals visited Nandigram and Tamluk and the affected villages on 15th and 16th March 2007. The team consisted of Amit Dyuti Kumar, Anurada Talwar, Arjun Das, Bibek Tripathy, Chiroranjan Pal, Jeeban Modak, Panchali Roy, Pramod Gupta, Prasad Roychowdhury, Raghunath Chakraborty, Sandeep Singha, Sadhan Roychowdhury, Dr (Mrs) Subrata Sarkar, Sujoy Ganguly and Subrata Roy.
RESPONSE
OF THE
ADMINISTRATION
At about 8 PM on 15 March 2007 a team went to the office of the District Magistrate, Purba Medinipore, where Mr Anup Agarwal, District Magistrate, Purba Medinipore was present. The team expressed their strong resolve to go to Nandigram and sought the assistance of the District Magistrate to enable the team to proceed for Nandigram immediately. The District Magistrate, Purba Medinipore, however, flatly refused to entertain any such request for rendering assistance to the team on various counts or grounds saying that the District Magistrate, Purba Medinipore is not a party in the writ petition and that the said District Magistrate, Purba Medinipore has no legal or moral obligation to entertain any of the requests on the subject. Then the District Magistrate, Purba Medinipore advised the members of the team not to go to Nandigram on the ground that seeing the members of the team the people of Nandigram may be charged, thereby there will be apprehension of breach of law and order. The apprehension that the team would encourage disorder was also echoed by Kalyan Banerjee, ASP on Special Duty whom we met at Chandipur police station. The impression we got was that the administration was unhappy about outside intervention in Nandigram even though people were in dire need of aid of all kinds.
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BEFORE
THE
14TH
In spite of prior information of amassing of arms and goons, and appeals by the Bhumi Ucched Pratirodh Committee before 6 January, no action was taken then by the police to prevent attacks by the armed party cadre on the 6 January. From 6 January onwards, there were almost daily attacks from the Khejuri side of the Talpati Canal by the CPM. The Haldia Development Authority, of which Lakshman Seth, CPM MP, is the Chairperson, tried an economic blockade by stopping the ferry, the main means of transport for agricultural goods from Nandigram villages to Haldia. CPM had regular camps on the roads that led to Nandigram and organised harassment of all media, social activists and even common people who tried to enter the area. The police invasion of Nandigram was only ordered when after two and half months the party goons and leaders in surrounding areas failed to suppress the local anti-land acquisition movement. There seems to have been no other pressing reason for the attack suddenly at this juncture. From press reports, it is obvious that the action in Nandigram was planned and executed in advance. On the 12th itself media reports began coming in showing that such action was being planned by the State Government. An all party meeting which was boycotted by the members and parties in the Bhumi Ucched Pratirodh Committee decided on action for the police to enter Nandigram. That high level people in the administration along with ministers and top level decision makers were involved is also clear from the fact that armed police battalions were brought in from Krishnanagar, Jalpaiguri and many other places. News reports also speak of a planning meeting before the operation on the 14th where CPM party leaders and a senior police official sat together in a party office at Kunjapur. The Government also seemed ready for some unpleasant consequences. The District Magistrate, for example, justified actions on the 14th by informing us that “such unhappy events would have happened whenever we had gone into the area”. The team met Nilanjana Dasgupta, SDO, Tamluk Subdivision, on 15th evening at Tamluk hospital. According to Nilanjana Dasgupta, SDO, Tamluk Subdivision, the action on 14 March 2007 in Nandigram was not known in advance by her. No discussion on
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such an action being taken by the district administration took place beforehand. She was also not sure whether there was any provocation that led to the decision to use police force, as the area was cut off from the rest of the district and they had no idea of what was happening inside. She had heard that a gang rape had taken place there, which may have been a causative factor, but was not able to say whether this was a confirmed report. She also said there was some concern about rising food prices and food shortages in the area. The fact that things spun out of control of the district administration can be gauged from the fact that SDO, Tamluk Sub-division was in a development meeting that day when the firing was taking place. All BDOs and Sabhapatis of the blocks in Tamluk Sub-division were with her. She was asked at 2.30 PM to stop the meeting and to rush to the district hospital immediately to get the hospital ready to receive the wounded from Nandigram. The general impression that we got from talking to some people in the administration was that there were in fact attempts by the ASP and other police officials to start confidence building measures in the local area so that the police could start gradually going in. Along with this, there had also been planning for the administration to go in with food relief in order to build up people’s confidence. One section of the administration was therefore totally taken by surprise by the events on the 14th.
COMBINED PARTY POLICE ACTION From reports and testimonies that we received, it seems that the command of the police force was in the hands of the CPM party leaders. A number of CPM leaders at the local level were also present. The invasion itself was planned by both party and police officials. Police uniforms were used by party cadre and important local leaders who were a part of the invading force. …I went to attend the puja there and police started chasing and while running I fell down and the police and other people(dressed in police uniforms but no police boots instead sandals) started beating me up mercilessly… (Konoklata Das W/o Rabin Chandra Das. Residence, Soudkhali Chowk)
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…They were men dressed in uniforms along with the police but they were wearing sandals and not police boots. Some of them were carrying lathis while there were those who were carrying guns…(Sreekanta Mandal, S/o Ganesh Mandal. Residence, Sonachura)
According to the villagers and wounded people, there were many goons and leaders of the CPI(M) party with the police during the police violence. They have also identified some of them. The names of the identified goons and leaders are as follows: From Khejuri: 1. 2. 3. 4. 5.
Bijon Roy Rabiul Khan Himangshu Das Swadhin Pramanik Kebal Das, s/o Haripada Das
Nandigram: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.
Ashok Guria, President District Committee AIKS Naba Samanta, Brother of Shankar Samanta, Sonachura Joydeb Paik, (LCS) Sonachura Badal Mondal, Sonachura Anup Mondal, Panchayat Member of Sonachura Bapi Bhuiya, President of Krishak Sabha Sukesh Shanki, Member of Panchayat Samity Lakshman Mondal, Pradhan, 10 No. Sonachura Gram Panchayat Chandan Hajra, Party Member Rabin Bera, (LCM of Saud khali) Arjun Maity, Iasin Khan, Pradhan, 9 No. Anchal Satadal Das
Anup Mondal, Panchayat member, during the incident on 14th was reported to be using a hand mike to tell people to allow police to do its job. One of the patients clearly identified the CPM goons present. His testimony is given below.
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Subodh Das, S/o Gangadhar Das, Age: 50, Residence: Gangra. Occupation: van driver. I identified 8 of those who fired bullets; they are CPI(M) goons. They are: Lakhman Mondal, Gangra Badal Mondal, Sonachura Joydeb Paik, Sonachura Anup Mondal, Sonachura Sukesh Sanki, Sonachura (South) Bapi Bhuiya, Sonachura (South) Kebol Das, Kunjapur (Khejuri) Parusaram Mondal, Sonachura
According to the witnesses we met, police officials under whom Wednesday’s firing took place were as follows: 1. 2. 3. 4. 5.
IG, Western Range, Arun Gupta DIG, N Ramesh Babu SP, East Midnapore, Anil G Srinivasan OC Khejuri PS, Amit Hati SDPO, Swapan Sinha
It was also reported that the CPM had hidden large stocks of arms in the following places: 1. Party Office in Kunjapur 2. ICDS building in Ranichawk 3. Janani Brickfield in Sherkhanchawk, where a new bathroom has been made, there is a septic tank which is unused. 4. Bijon Roy’s house in Khejuri
SEQUENCE
OF
EVENTS
The testimonies and discussions with eyewitnesses and victims (patients) of the firing show that the sequence of events given by all these people is more or less the same. The sequence given below is based on the testimonies of 62 patients and about 200 villagers whom we met. People were aware that there would be an attempt by the police and party goons to re-enter the area as a first step towards taking over their land. They decided to offer peaceful resistance by
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organising a Gouranga Puja (incidentally Gouranga is the God who protects those who worship him). They also planned a Koran recitation ceremony. Once this programme was known, people flocked to the spots where the Puja was being held. At Bhangabera the Puja was in a trench that had been cut in the road earlier. About 5,000–6,000 people were present, of which 3,000 were women and about 400–500 were children. The mob was unarmed as they were in a religious ceremony. The women and children decided to stand in front as the people assumed that the police would not be violent with women and children. A large police force with firearms and tear gas arrived in vehicles and buses on the Khejuri side of the Talpati Khal in the morning. They were accompanied by many armed CPM goons. At Bhangabera Bridge,1 they first filled up a large trench near the bridge. None opposed this. They then began advancing across the bridge. There seems to have been no prior warning. A few report that Anup Mondal of the CPM was using a hand mike, but most heard nothing and were not forewarned about the police action. Without any proper warning the police began throwing tear gas shells. This blinded the crowd and created confusion and panic. During this period, the police and the goons began firing and advancing further while firing. Operations, including the firing and the filling up of the trench seemed to have been planned earlier. While the firing continued for about 15 minutes, the violence followed for the next hour and a half or so. There are many complaints of horrific and deliberate violence during this phase and afterwards. Those rescuing the wounded were prevented from doing so e.g. Pushpendu Mondal, S/o Beni Madhab Mondal, Vill–Gangra, Nandigram received bullet injuries in his belly and right hand. Pulin Behari Mondal (their neighbour) tried to take him for hospitalisation but due to lathi charge by the police, Pulin fled the place. Police and goons took Pushpendu away forcibly. Women were taken away and raped. Women who tried to hide or wash their burning eyes in ponds were forced to come out and then beaten up again. Houses and shops were looted. Instead of using least force neccessary, the policy seems to have been of using maximum force to instil fear and terror in people and to break their spirits. 14 persons from amongst those who were resisting the attacks were also arrested. Grievous false offences have been filed against them.
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DEATH TOLL According to official statement there are 14 persons who died due to police firing. Out of them, nine bodies had not been identified till the 16 March 2007.
LIST
OF
DEAD PERSONS
(Evidence provided by Sankar Narayan Jana General Secretary, Youth TMC, East Midnapore district.) Sl. No. 1. 2. 3. 4. 5. 6. 7. 8. 9.
Name Sakila Bibi S.K. Raja (22 yrs) Shambhu Paul Imadadul Khan Proloy Giri Raja Ram Das Gobinda Das Ratan Das Supriya Jana
Sex F M M M M M M M F
Village Garchakraberia Garchakraberia Sonachura Garchakraberia Soudkhali Garchakraberia Sonachura Gangra Sonachura
Four bodies had still not been identified by them on the 15 March 2007. According to all the 200 or more villagers we met and the patients admitted in Tamluk Hospital and Nandigram Hospital, more than 100 persons have died in the firing. They alleged that most of the bodies were taken away by the Police and CPI(M) goons by truck towards Khejuri or buried under the newly repaired road at Bhangabera.
CONCEALING
OF
DEAD BODIES
Abu Taher, an activist of the Bhumi Ucched Pratirodh Committee, informed us that he had received information that bodies have been disposed off in the following manner by the CPM, in collusion with the police.
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In a brick field ( Janani Bhatta) five bodies have been disposed off in the septic tank of the latrine there. At 8 PM on the 15th night, launches came from the Haldia Satkar Samity to Naya Char. Bodies were taken to Naya Char from Khejuri and were transferred to these launches. Some of these bodies had been burnt, others had been cremated on the other side of the river. A pick up van was used to take bodies from Tekhali to Heria, after which their destination was not known. Sudanghsu Samanta in Sonachura had buried bodies in a sunflower field near Sonachura. After hearing that the CBI was coming, the bodies were transferred and buried under a bamboo bridge nearby. Local people would be able to give the exact location. A ground floor room in the Khejuri College had been used as a store house for four bodies by the CPM goons. After hearing that the CBI team was coming they tried to transfer these bodies out but had not been able to do so, as the police was no longer so cooperative. Bodies of three children were found in a pond to the south of Bhangabera, two floating in the pond and one on the side. When villagers went to recover the bodies, they were refused access by the police. Journalists had also not been allowed to go to the spot. Abdus Sammad of the Bhumi Ucched Pratirodh Committee informed us that bodies of children and others had been buried under the earth that was used to fill up a trench near the Bhangabera Bridge. Bodies had also been kept around Shankar Samanta’s house in Bhangabera. He also informed the CBI team about the same, but they refused to dig up the earth in the trench. However, they did find blood stains and women’s and girls’ clothes and undergarments in Shankara Samanta’s premises. The above were corroborated by Sumit Sinha and Mohidul who were also activists of the Bhumi Ucched Pratirodh Committee. A journalist working with the Dainik Statesman, Sukumar Mitra, informed us that possible disposal spots for dead bodies were as follows: 2 bodies had been found in Geokhali by the 19th of March, which could be of those killed in the police-cum-goons firing. 1 body and 1 unconscious person had been found in Uluberia who could again be of those killed. A mangrove forest in Kadirabad Char was a possible place for disposal of bodies as that was used as a secure hiding place by CPM goons earlier.
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Bodies could have been burnt in Kalinagar and near Rasulpur Ghat, as it was known that these spots were used for disposal of bodies at earlier times. Meen Deep, near Naya Char, had been used for the burning of bodies. Furnaces of seven brick fields (including Shibani and Janani brick fields) and two tile factories in Khejuri on the other side of Talpati Canal. A wounded villager in Tamluk Hospital have been used for disposal of bodies.
WOUNDED
AND
PATIENTS
An analysis of the 83 cases that came to Nandigram Hospital from 14.3.07 to 16.3.07 (up to 2 PM) is given below : Kind of injury/assault Brought dead - one case of head bullet injury - two cases of bullet injury in abdomen - one case of stab injury in abdomen Bullet injury Blunt injury Head injury (traumatic) Lacerated wounds on different parts Assault and gang rape Other injuries- tremendous chest pain Other complaints Eye pain TOTAL
Number 4
23 49 3 3 2 1 4 5 94
In addition, most patients were suffering from post traumatic stress disorder. The police injuries according to the SDO Tamluk were as follows from what she observed: – CI Bhupati Nagar had lacerations or grazes on his cheek; – SDPO Egra had an injury on his hand; – Two constables who had brought in from Jalpaiguri had injuries which she was not able to specify.
She had also heard that SDPO Tamluk and ASP Tamluk had minor injuries. A team of doctors treated patients at Kalicharanpur on
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16 March 2007. After the camp they declared that they had treated about 200 patients, at least 100 of whom had bullet injuries. All the bullet injuries were in parts of the body that were above the knees. All of them had eyes smarting from tear gas, while 30–40 had more serious eye injuries. (Reported by Medical Team from ‘Sohagi’ Haldia Haematology, Thalassaemia Care, Prevention and Blood Transfusion Society.) It was obvious from this report that many patients were too frightened and traumatised to reach the hospital, and that medical aid was not reaching all the affected. The team was not able to go to Janaka PHC in Khejuri block. So we are unaware of the number of dead bodies and wounded there. As many wounded and others were reported to have been dragged away by the police to the Khejuri side, it can be assumed that many were transferred to this PHC. However we have no details. It should also be noted that NGOs and reporters we spoke to are apprehensive about going to areas under Khejuri PS as they feel there could be attacks from CPM goons there.
INFRASTRUCTURE Medical facilities at Nandigram PS were found to be woefully inadequate. There was no provision for X-ray, USG, CT Scan, MRI, and pathological tests though the injuries were very serious. There is also inadequate transportation facility and ambulance facility, so there was no proper way to transport patients.
SYSTEMATIC GENDER VIOLENCE OF WOMEN
AND
RAPE
The violence that erupted in Nandigram on the 14 March found the police and CPI(M) cadres specifically targeting women. Of the 62 testimonies that we gathered in the hospital and from other victims outside, 30 are from women. In the injured list at Nandigram BPHC of 69 persons, 39 are women’s interviews with scores of villagers and the testimonies brought home one point- that specific and systematic
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violence was used against the women to humiliate them and to break the back bone of their resistance. Women who were beaten up complained of the abusive language used that they could not repeat. The lathicharge was more aimed at the breasts, stomach and genital regions of their body. Male police took it onto themselves to lathicharge the women though there were women police around. …All male police were beating us while the women police were standing and watching. When the beating was over women police dragged us and put us into a van. (Gauri Mondal, W/o Tarun Mondal, Residence-Sonachura)
Various women who were not even participating in the puja, but standing around were caught in the fire round and beaten mercilessly. …started taunting me and asking me why am I here and then mercilessly started beating me. I kept pleading with them to let me go but they wouldn’t listen.(Shankha Gola, W/o Manoranjan Gola, Residence-Sonachura). The police and CPI(M) cadres specifically targeted women.(A severely injured woman in Tamluk Hospital)
Apart from the lathicharge and firing the police and the CPI(M) cadres resorted to various forms of sexual violence which included ripping clothes of the women and leaving them naked lying in the open, girls were pushed forcefully into vans and cars and driven away. …I got shot on my right shoulder. When I tried to flee the police chased me, caught me and ripped all my clothes off. They stripped me naked, kicked me and threw me in the side. I was lying there and close to evening someone found me and took me to the hospital. While I was lying there in the corner I saw in front of my own eyes two young girls being dragged by the police and taken away. I couldn’t recognize the girls…(Kajal Gharai, W/o Ratan Gharai. Residence-Sonachura)
When we met the nursing staff at Nandigram Block Hospital, we enquired if any women had been raped. She denied this. However, other people in the hospital informed one of our women team members about two patients who had been raped. It is only after this that these cases at our initiative were registered as rape cases. Details are below: Gauri Pradhan,. Age: 25 years W/o Joydeep Pradhan, Mother of three children.
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Residence: Gokulnagar Place of occurrence: Adhikaripara Nature of injury: Admitted in unconscious condition after gang rape with other injuries. Narration of incident: I went to attend the rally when the police started firing teargas and bullets simultaneously and then started lathicharge. I tried to flee, when three policemen caught me and dragged me by the hand and into an empty house. I was beaten so badly that I was in no condition to resist. One of the policemen held my arms while two of them forcefully raped me. Then I lost consciousness and I don’t know if the third policeman also forced himself on me or not. I don’t know how I came here. I regained my consciousness in the hospital. Kajal Majhi,. Age: 36 years W/o Bikash Majhi Residence: Kalicharanpur Place of occurrence: Gokulnagar Nature of injury: Rape by police Narration of incident: I went to participate in the rally and was sitting at the worship place. When the police came and started throwing tear gas I couldn’t see anything. So I didn’t move and just sat there. They started shooting and coming towards us. They caught me and started beating me up ruthlessly. I lost consciousness, got grievous bullet injury on her head. When I regained consciousness, I found myself in a cow shed and I realized that I had been raped. My clothes were torn, my breasts and vagina were hurting and there were bruises and I could understand that there had been forceful intercourse. I was lying in an empty cow shed. My neighbours helped to bring me here.
VIOLENCE
AND
MURDER
OF
CHILDREN
Along with women, children who were present in huge numbers to participate and witness the puja also wore the brunt of the police firing and lathicharge. Scores of people have alleged that children were torn apart, hurled into ponds and killed. Many people have testified to children being shot at and killed. …I also witnessed the police killing children and stuffing them in sacks and taking them away.(Kajal Gharai, W/o Ratan Gharai. Residence-Sonachura).
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…We wanted to save the children however the police started targeting them and dragging them. They even kicked the children in the stomach with their boots… (Renuka Bala Kar. W/o Sampada Kar. Residence-Gokulnagar) …I witnessed women being dragged away by the police and they were also throwing small children into the pond…(Satyabala Mandal, W/o Anadhi Mandal. Residence-Soudkhali Char) …They killed children—they shot, hacked and even tore them apart with their two legs… (Lata Mondal, w/o Shakun Mondal. Residence-Gokulnagar)
Of the 38 missing, 11 are children. In addition to this, we received a few other reports of children who were missing/killed. A child who did not have anybody with him has been found by a fruit shop owner in Tera Pakhira. He says he is from Garchakraberia. He says he was with four of his friends when the police-goon action took place, but there is no trace of his friend now. (Evidence of Sheikh Monirul Islam, s/o Sk Hasan Ali, Village Kanchannagar). Children were also reported missing from Sonachura Infant School. They were all part of the Puja. Police camps have now been set up in four educational institutions affecting education in the area. These schools are as follows: Sitananda College Nandigram GK Siksha Niketan, Gokulnagar Gokulnagar Gobinda Jew Siksha Niketan, Gokulnagar Sonachura KCA Milan Mandir The education of about 2,500–3,000 students have been affected in this process.
LOOTING Looting has taken place at: Srikanta Paik’s shop and house in Bhangabera on 14th March. Swadeshdas Adhikary, Pradeep Adhikary and Ajit Adhikary’s houses in Adhikaripara in Gokulnagar on 14th March and/or 16th March morning. (Evidence of Hrishikesh Ghorai, s/o late Haricharan Ghorai, Village Saudkhali)
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A Report by Sanhati Ashok Das of Nandigram reports that the house of his son-in–law, Mangal Das, S/o Shakti Das, Village Gokulnagar, has been broken and looted.
MISSING PEOPLE
AND
DESERTED VILLAGES
We found many houses locked and villages deserted, e.g., Garchakraberia, Sonachura. We met many people from Gokulnagar, Sonachura and other villagers who had fled and had taken shelter in other places at Jana More. The police cum goon action seems to have led to chaos and terror and scattering of families and people. Two examples are given below: 1. Swapna Patra W/o Nupur Patra Residence: Sonachura, Golpara Narration: On 14th, I along with other women went to participate in the Puja. We saw a lot of vehicles coming in. There were police vehicles and with them a bus also came. After 2–3 minutes there were tear gas shells thrown at us. Some people retaliated by throwing stones and suddenly a volley of bullets started hitting us. I witnessed young girls being dragged away by the police. I couldn’t recognize anyone of them as there was too much tear gas almost blinding us and there was too much terror in our hearts. A lot of people including me have run away from Sonachura and have taken refuge elsewhere including myself. At least 40 households have fled the para. There were women police standing around but it was the male police who dragged us by our hair and hit us and grabbed our breasts etc while using absolutely vile language.
2. Najima Khatun W/o Sheik Islam Nazrul Residence: 7 No. Jalpai Narration: We heard on the village mike that the police were coming so we the women and children formed the frontline to prevent the police from entering and the men stood behind us. We first saw 5–6 police vehicles and then more vehicles started coming and there were so many cars and so many police that couldn’t be counted. 4–5,000 women and children were injured and hit. No one told us or gave us any warning in the mike; they were coming in lines towards us. They started throwing
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teargas and we started fleeing. There was a volley of gunfire, people started falling all around me. When they started chasing I fell down. I witnessed a child being shot and when the mother went to rescue the child even she was shot at. Bodies are still being discovered and even today another body was found in the jungle. Women who went to the Puja place have gone missing and many young girls were dragged into the police vehicles and there is no trace of them.
Families have been scattered and therefore it is very difficult to understand who all are missing. The following are the reports that we received…
NOTE 1. We have reports of what happened at Bhangabera only, as Tekhali bridge, the second spot of police action was still under CPM “control” and inaccessible or dangerous for organisations like ours till the 16th.
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Manish K. Jha
5 Eroded Lives Riverbank Erosion and Displacement of Women in West Bengal* KRISHNA BANDYOPADHYAY, SOMA GHOSH AND NILANJAN DUTTA
THE BACKGROUND
F
loods occur almost every year in West Bengal, and riverbank erosion takes place almost every day. Hundreds die and thousands are displaced by these disasters. In large parts of North Bengal, particularly in Malda, Murshidabad and Cooch Behar districts, the problem has become endemic. Disaster-induced displacement has become as ‘natural’ in these places as the calamities themselves. Breaking one bank and building another is in the nature of rivers. If humans try to stop this break-and-make game by force by obstructing their flow by force, they become fiercer and take a double toll. Though barrages, bridges and dams are necessities for a country, one has to see how these can be built in harmony with nature. Otherwise, it might spell disaster. This is what millions of people in Malda, Murshidabad and Cooch Behar districts of the northern part of West Bengal are realising through their experience. ∗ The report was presented by the authors to the Calcutta Research Group in 2006. Request for full report can be requested for at
[email protected] Eroded Lives
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The issue has come up repeatedly in public forums. In a discussion in the state assembly on 3 August 2005, CPI(M) MLA Asima Chowdhury pointed out that about 100,000 people living at Bhutni in Malda were facing displacement because of river-bank erosion. Already, the inhabitants of at least four villages were forced to leave their homes and were ‘spending a nomadic life’, she said. (Ganashakti, 4 August 2005) In a recently published book, a researcher writes: The entire 174 km stretch along the Ganges, from Bhutni in Malda to Jalangi in Murshidabad, has been facing erosion. In 2001 alone, about 2,500 families were rendered homeless in Malda. Two school buildings, with a student population of 500, are now under water. About 191.41 sq km and 356 sq km of land in the districts of Malda and Murshidabad respectively have been eroded between 1931 and 1999. The thickly populated downtown of Dhuliyan in Murshidabad is now under threat. The District Planning Board estimated the loss in April 2000, as six high schools, one police station, three banks, one panchayat (local government) office and at least 42 primary schools, all of which are now completely under water. The problem is that erosion does not always inundate the homes and residential places. But remaining at homes without the basic conditions of life is as good as losing homes. In 1994, three-fourths of Jalangi town in Murshidabad district was submerged in the Ganges as a result of erosion. About 3,00,000 people of three blocks of Malda and eight blocks of Murshidabad faced the threat of being displaced. About 6,00,000 persons have been displaced in these two districts. Many have lost their cultivable lands. Moreover the number of times the same family has been displaced ranges from an average of four to 16 times. It means that the displayed families have nowhere to go but to move within the unsafe and threatened areas.”(‘India: Homelessness at Home’ by Samir Kumar Das, in Paula Banerjee and others, ed., Internal Displacement in South Asia, New Delhi, Sage Publications, 2005.)
The non-descript rural area of Panchanandapur of Malda district hit the headlines in 2003. The Union water resources minister, during the parliamentary debate mentioned earlier, said: In connection with the erosion problem on the left bank of the Ganga on the upstream of [Farakka] barrage near Panchanandpur, the Central Water and Power Research Station, Pune had submitted a report based on the Satellite Imageries indicating development of a new channel on the right bank downstream of Rajmahal [hills in Bihar] which could develop in the coming years, thereby reducing the attack of the left bank. The above behaviour of the river is to be further studied by carrying out model studies through the CWPRS in association with the State Government.
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Between 2.30 AM and 4 AM on 5 September 2003, two villages and the plush bungalow of the state irrigation department, Ganga Bhavan, at Panchanandapur were swept away by the surging waters of the Ganga. Four other villages had seen the same fate earlier the same year because of erosion. The submergence of the villages did not make big news. But destruction of the bungalow did. All senior officials from the irrigation department, police and district offices rushed to the spot. There was only a passing reference in the following day’s newspapers, however, that 125 families of the two villages along with 1,200 families of the four submerged earlier had no place to go. There was hardly any follow-up on how they were living afterwards. The papers quoted a block development officer claiming, ‘Relief materials had been reached to all families of Gangabhavantola and Mandirtola as these villages had the risk of being eroded.’ (The Telegraph, Kolkata, 6 September 2003) The phenomenon of erosion has been going on for a long time. The problem becomes acute in monsoon, as water pressure on the natural banks and human-made embankments increases. In January 2003, chief minister Buddhadeb Bhattacharjee gave a call to ‘build up massive protests at every level from the state’ to force the Centre to solve the erosion problem. (Ananda Bazar Patrika, 20 January 2003) The ruling Left Front officially recognised that 40,000 people have become ‘refugees’ because of erosion of the Ganga banks and organised a march by them from Malda to Kolkata. (ABP, 14 February 2003) Left Front MPs marched to Parliament with the demand of checking erosion. (ABP, 3 March 2003) The Opposition parties have also been vocal over the issue. In Cooch Behar, the otherwise docile river Torsha had engulfed the homes of about 200 families in the Madhupur gram panchayat area last year (Ananda Bazar Patrika 14 June 2004). In the assembly discussion on 3 August 2005, member Akshyay Thakur narrated that the Saltiar Khal in the district had become known as a ‘canal of misery’. Flooding its banks every monsoon, it has devastated 27 villages so far. Around 183 hectares of land have been engulfed by the river, 250 hectares have become mere sand banks and 20,000 hectares have lost fertility. As many as 735 families have been rendered homeless, 227 families become paupers and were compelled to migrate from
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the area and 10,000 to 12,000 people had become landless labourers (Ganashakti 4 August 2005). The majority of the displaced people are poor, and at least half of them are women. As the poor are dispossessed of their right to shelter, the women, being the most vulnerable among them, are the worst sufferers. Losing their homes to the river, they have to struggle much harder given the compulsions of family and society.
THE OBJECTIVES (a) To find out how women are specially affected by the erosion and floods in North Bengal. (b) To document the women’s struggles to rebuild their homes and reorganise their family life. (c) To investigate whether the displacement in the wake of the natural disasters marginalises the women further and how do marginalised women survive. (d) To focus particularly on the impact of displacement on young women and girls and whether they become vulnerable to special hazards such as trafficking, loss of educational and economic opportunities, etc. (e) To study the rehabilitation efforts—both organised efforts by government and non-government agencies and by the women themselves. Whether they are able to find work to sustain themselves and their families. If so, where and under what conditions. How their physical and mental health is affected in the process. What are the conditions of single women and womencentric families in particular. (f ) To help the voice of these women to be heard clearly on wider civil society platforms, using Forum Theatre or Interactive Theatre as a major means. (g) To identify the rehabilitational needs and of the needs of the women through intensive interaction with them and recommend appropriate ways to fulfil such needs to government and civil society organisations. (h) To analyse whether female-headed households have greater problems in accessing rehabilitation and care.
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THE SURVEY A three-member study team, comprising the project co-ordinator, research officer and field investigator, visited the following settlements where the displaced families (whose number is given in brackets) are concentrated. The figures have been collected from the respective organisations of the displaced people in each district. Village-level census figures are available only from the 1991 count and not from 2001. Moreover, as some of the places mentioned here do not constitute a village unit officially, but is only a neighbourhood, the corresponding official population figures are not at all available. However, the available census data are given in the appendix. 1. Malda district: Panchanandapur Block (a) Bangitola Field (around 1,400) (b) Kagmari Rathbari Roadside (around 25) (c) Mistiripara or Gangabhangan Para (around 80) (d) Babla Roadside (around 200) (e) Kagmari Panchanandapur Roadside (around 60) (f ) Asaf Mullah Tola (around 200) (g) Sakurullapur Roadside (around 300) (h) Panchkaritola (around 1,000) 2. Murshidabad district: Jalangi Block (a) Taltali (around 600) (b) Paraspur (around 1,100) (c) Udaynagar (around 900) (d) Thakurnagar (around 600) (e) Suryanagar (around 300) 3. Cooch Behar district: Saltiar Khal area Patchhara G.P. (around 1,000 families) The team members visited the homes of the displaced women and talked to them at length individually, held focused group discussions in each of the three districts and met separately the members, particularly women members, of the Ganga Bahngan Pratirodh Nagarik Action Committee, Malda, Bhangan Bidhwasta Udbastu Colony O Punarbasan Samiti, Murshidabad, Saltia Bhangan Pratirodh Nagarik Committee, Cooch Behar and local women panchayat members.
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Here we present some glimpses of the lives of the women affected by the erosion disaster. Malda Bangitola The only organised rehabilitation effort for the displaced families can be seen at the ‘Bangitola Field’, on the way to Pagla Ghat in Panchanandapur. Here, the government has purchased land from private owners and distributed a kottah each among 1400 families who had lost their homes in 2003. However, a woman rushes forward leaving her housework to point out, ‘The plots are supposed to be for building homes. But the authorities have not given us what we need for the purpose.’ The temporary huts are bare bamboo structures, thatched with polythene sheets or straw. As soon as we stepped into the colony, we were surrounded by a lot of people, most of whom were women. Men, in fact, are few here. Most of them, having lost their land and livelihood, have gone to work as labourers in others’ lands or to dig the soil in distant places. Some have migrated outside the state, to Mumbai, Delhi or Gujarat. The tales of misery of these women reminded us of Phullarar baromashya (Phullara’s lamentations in the mediaeval Bengali epic, Chandimangal). What surprised us was their spirit of struggle even in the midst of so much misery. A number of them have lost their homes three, four or more times because of the erosion. The women complain in unison about the lack of sanitation. ‘We have no toilets here except the few that have been set up by the citizens’ action committee recently. How long can we bear the humiliation of using open fields as toilets? If they can’t provide us with toilets, why do they write on the walls of schools and other buildings that every house must have one?’ There is only one deep well, which, too, has been constructed by the committee. Manjuli Mandal is a young woman, but it is difficult to tell her age by seeing her. She has to bear the pressure of maintaining her whole family alone. In the sowing season or the mango season, she has some work. At other times, she goes to the char lands in the middle of the river to fetch grass. Sometimes, she sells vegetables in the market.
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The dream home Mahajani Das had once set up has broken down three times. She has a constant fear that the present bamboo-straw hut, too, would crumble in the next impact of erosion. Yet, she maintains it with great care. Her husband goes to work in others’ lands and she fries muri (puffed rice) between her daily chores. If she can devote enough time, she earns Rs 20–30 a day. She tries to work as much as she can. Her daughter Tushi is appearing for the Madhyamik examination this year (she has passed the exam by now) and she has to be given a little ‘nutritious’ food. So, she tries to add a piece of fish to Tushi’s meal when she can. Despite their own distress, the families insist that we have lunch with them. A small potter community occupies a corner of the Field. A group of women are busy making earthen pots, pitchers and toys. One among them, in her 50s, tells us that they have to travel much farther nowadays hawking their products: ‘In this modern age of plastic goods, there’s less demand for earthenware is much less, except at occasional fairs, etc.’ The other option open for women’s income is making bidis. The wage rates discriminate against them: while men get Rs 35 per 1,000 bidis, women get between Rs 30–33. Interestingly, the difference is not much. But, it seems, the gap is maintained only to underline the prevailing social notion of the lesser value of women’s work, even if the output is the same. Aged women like Pano Bewa (80), who live alone, are the most distressed. Kachi Mandal, Bechni Mandal and others come forward with their requests: ‘Please note down my name’, thinking that entering their names in our little notebooks might entitle them to some relief. Telling them of our helplessness doesn’t help—they cling to us as a drowning person would clutch a straw. Sakurullapur Most of the displaced families living in the huts lining both sides of the main road at Sakurullapur live below the poverty line. When they lived beside the river, they used to be fishing community. Now, as they have had to move away, maintaining that profession involves travelling too far. So, some of the men have gone out of West Bengal to seek other occupations.
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‘The officials talk about relief, but what do we get?’ asked Pushia Bewa. ‘Considering the number of members, my family should have been getting 20 kg of grains. But we get only 1.5 kg, that too, not every week. It doesn’t come free—we have to pay Rs 6 per kg’, she herself gave the answer. Chandmani Chowdhury is the daughter of Pushia Bewa. At first, she didn’t want to come in front of us. At last she came, with her rickety son in her lap. Whatever we asked, she only stared with a blank look. Her husband had taken some advance from someone and gone to work for him as a labourer. He vomited blood and died. Chandmani was pregnant at that time. Abject poverty, broken home and her husband’s death made her silent. She does not cry or smile. The other women said, she doesn’t even feel hunger or thirst. The baby desperately searches for milk in his mother’s breast, but, like her tears, it has dried up, too. Kulbanti Chowdhury’s husband still goes for fishing. She has three children, whom she can barely feed by working in local households. Like many women in the colony, she, too, has grievances against her husband. ‘He spends whatever he earns by fishing on drinking, then he wants a share of my income and beats me if I don’t give him money. Most of the time he doesn’t go for work at all.’ Her neighbour Gangeswari commented, ‘Why do they beat us? The husband is supposed to be a friend. Why does he behave like an enemy?’ Asaf Mollatola The village went into the waters in the erosion of 2002. The displaced people have named their temporary settlement after the original one. We noticed this trend at other places, too. Perhaps, it is an effort to preserve the tradition and culture of the community. Momena Bibi (50) has six daughters and four sons. Her husband does not work. The eldest son has gone to Mumbai looking for work. The large family is maintained with whatever she and her daughters earn by making bidis. They closely survived the risk of being displaced for the second time when the waters rushed into their new home during the erosion of 2005. Amina Bibi of the village once had some land. Now, she has none. Moreover, her health has deteriorated so much that she cannot work.
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Samson Bibi makes bidis at home. She can make 200 to 400 bidis per day. Her husband goes out to work as a daily-wage labourer— sometimes to harvest the paddy, sometimes to dig up the soil. Saleha Khatun has passed her B.A. from Kaliachak College. Rebeca Khatun is a graduate, too, but their condition is no better than Samson, as they have not got any job. The situation makes Rulekha Khatun, who is going to appear in her B.A. Part I exam, uncertain of her future. Her brother is a B.Sc. student in Malda College. Even though many in this settlement do not even have a hut and just live under plastic sheets, they have an amazing interest in education. On the other hand, there is little work here and the women are afraid to go far for to seek a job. There is no provision of drinking water. They are forced to drink the water, which, they know, contains arsenic. There is no sanitation. This is a common picture in the erosion-affected areas. Some villages in Malda have been completely lost in the erosion. For example, Dakshin Panchanandapur, Uttar Panchanandapur (1), Uttar Panchanandapur (2), Paranpur GP (62) and Kankribandha (KB) Jhowbona have vanished without a trace between 1998 and 2003. PWD Roadside As one section of the displaced families have had to add a ‘Field’ to their address, another have added a ‘Roadside’. Here, too, they have demarcated stretches of the roadside where people from a particular area have been squatting after the name of the village from where they had been displaced two years ago. Those who used to live at KB (Kankribandha) Jhaubana call their new settlement KB Jhaubana too. It is a mixed settlement of Hindus and Muslims. Though women from the latter community mostly go out for work, those belonging to the former usually do not. They work at home, mostly as weavers. The men go out to work as labourers in the fields or bidi factories. Some work as carpenters and blacksmiths. The toughest job is that of digging the soil. For this, the men are sent to other districts on three to six month contracts. The women often do not get to know where they are and cannot contact them even in emergencies. On the other hand, they have reasons to worry about the well-being of the men. We learn from them that the labour
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contractors have a strange custom. They lay a wager that the one who would be able to dig up the maximum amount of soil would get Rs 50 extra. ‘My husband took up the challenge. And that led to his death. When I got the news much later, I was carrying our child’, narrates a woman. Now, she has to bring up her child without any support—financial or familial. Menaka Mandal, Sarala Karmakar, Sujata Karmakar, Anita Mandal—each one has a similar story to tell, which has a beginning but no end. Fifty-year-old Mangli Bibi was displaced from KB Jhowbona in 1998. For the past eight years, she runs her family by working as a harvester outside the area. Her husband does not work. With her meagre income, she has brought up their two daughters and two sons. Both the daughters are married. Two of the sons work in carpet factories in Beneras, though they do not send any money home. Women like Yasmin Bibi, Rauja Bibi, Zarina Bibi and Airun Bibi used to live at Momintola. According to them, as the new settlement of the displaced people of their village was in a ‘Hindu area’, they did not find a place there. They have set up their makeshift huts at Babla Roadside. They bring thread from the ‘mahajans’ or merchantmoneylenders and weave gamchhas and lungis. One can make three to five pieces in a day and get Rs 5 per gamchha. Matulan Bibi is between 35 and 40 years of age. She has nine children, who are suffering from malnutrition. The family loom, she says, had been swept away by the waters. She took a loan of Rs 5,000 from a moneylender on 10 per cent monthly interest to start the business afresh, but it is not running smoothly enough to repay the debt. There is no government assistance for these poor weavers. Their cooperative society is defunct for 12 years now. While some families have got Antyodaya ration cards, they have not. Her husband now works as a labourer in Delhi. He visits home briefly every two months and leaves half the advance wages he gets. It is not sufficient to run the family. ‘I have to borrow Rs 3/400 to Rs 1,000 every month on 10 per cent interest to maintain my children.’ In this way, the debt trap is widening. Only one of the children is studying at the local Shishu Shikha Kendra. The husband of 30-year-old Zarina Bibi is unable to work, so she is the sole bread-earner. She has to look after eight children, including six from her husband’s previous marriage. Zarina supplements her income from weaving by making bidis, rolling 200–300 a day. The earning is Rs 30 for 1,000 bidis. Rajan Bewa stays with her widowed
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daughter. She gets 10 kg of rice as dole every month. Earlier, she used to hawk utensils. But now she cannot, following a waist injury. Saira Bibi belongs to the Badia community, the most impoverished among the displaced populations living in the area. The 35-year-old woman stays with her widowed mother. Her husband has deserted her and lives in Malda. She makes bidis to feed her two-yearold son. However, she has not got any payments from the contractor for the last one month. Initially, the local shopkeepers used to give some food on credit. Now, her mother brings some food by begging from others. Saira has a brother, who lives separately. He does not help her. ‘How can he? He himself earns little by digging the soil,’ she observes. Chenbani Bibi (32) of the same community makes bidis too. Her husband digs the soil. They have four sons and four daughters, one of whom is married. Two of the daughters are learning to make bidis. Her entire house had gone into the river and nothing could be saved. She did not get any assistance from the panchayat or anyone. ‘I had to buy even this tarpauline sheet for Rs 100.’ The family has not received BPL cards. Sabita Mandal, Prajapati Mandal, Minati Mandal, Saila Mandal, Kanchan Basak and their neighbours now live at Kagmari Roadside. The families got a tarpauline sheet each when they first set up their new ‘homes’ or tents, beside 12 kg of rice. Most of them make bidis. The husbands of some of these women pull rickshaws in Malda town. Others have migrated far in search of work. Some visit them after a gap of four/five months or more. Some have died toiling in distant places. The news often does not even reach their wives, who wait indefinitely for them to return. Kamala Basak is a 50-year-old widow living at Kagmari Roadside. Her family had a well-stalked grocery at Pagla Ghat, which has gone under water. Now, she runs a petty pan shop and fears that this last resort might suffer the same fate in the near future. “We are no longer living, we’re dead,” is how a woman squatting on the roadside summed up their present existence. In these areas there is neither drinking water nor sanitation. The women are humiliated and abused daily when they go to answer nature’s calls in the adjacent fields and orchards. Often they are accused of being thieves and beaten up. One woman, we heard, had died of the beatings a few months ago.
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Murshidabad Dayarampur According to the members of Bhangan Bidhwasta Udbastu Colony O Punarbasan Samiti, more than 600 families used to live in Dayarampur. Now, 106 of them have taken shelter temporarily in lands and orchards belonging to others. Everything they had has gone into the river. About 500 other families have lost all their lands except their homestead. Seven persons, including a child, have died here reportedly of starvation and lack of medical attention. There were three women among them: Juneja Bibi, Afijen Bewa and Jayeda Bibi. The latter’s husband, Aminuddin Sheikh, died on 19 February 2005 for the same reasons. About 200 others are said to be suffering acutely from hunger and malnutrition. Dayarampur, close to the Bangladesh border, was declared an ‘ideal village’ in 1993 by the government. Today, it is stalked by death. The erosion of the banks of the river Padma has rendered landed farmers into landless labourers. Even labourers’ jobs are not easy to get in the nearby areas. So, they are migrating to distant Mumbai, Delhi or Gujarat. Those who are unable to migrate are left starving. Paraspur All the 546 families who lived in this village have lost their homes to the Padma. Among them, 156 families belong to the Scheduled Tribes. Most of the rest are Muslims. Six people, including four children, have reportedly died of hunger and lack of treatment. We were told that at least 150 more are suffering from acute ill health. Says Salita Haldar (Mandal), wiping her tears, ‘Didi, I cannot drag the family any more. The river has taken away everything. We have neither home nor land. My husband goes fishing, but the catch is decreasing. I have two daughters. Death was better than the way we are living.’ Salita’s 15-year-old sister Shyamali works in the field. Besides them, Punni Mandal, Savitri Mandal, Usharani Mandal and others are also in distress. Parul Mandal works in the field. Her husband has no regular job—he sometimes goes fishing, sometimes digs the soil and sometimes works as an agricultural labourer. The couple has three sons. Sumila Mandal,
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on the other hand, has no job besides her housework. Her husband is a soil-digger. He, too, does not have any work now and the family is almost starving. The children are visibly malnourished, and so are the old women in particular. Kalidasi Mandal (65) and Kutila Mandal (70) complain of acute gastric problems, but have had no medical attention. Sixty-yearold Zahira Mandal has lost the ability to work. She lives by begging a little food from the neighbours. She had a daughter, who, Zahira has ‘heard’, has left the area after marrying somebody. Taltali Ten of the 300 families living here have been rendered homeless because of the erosion. The rest have lost their cultivable land. About two-thirds of the population are Muslims. At least 50 people need immediate attention to their health conditions. Many of the displaced families have settled temporarily on the char lands that have risen in the midst of the river. Life, however, is difficult there, with no civic facilities and little scope for work. Thirtyyear-old Rokeya Bibi is one of the women who have relocated to the char. Her husband works as an irregular daily-wage labourer. She wants some work which she can do at the char to bring up her two daughters and a son. Despite the hardship, all three of the children are being sent to school. Ganga Malik has seen her home being broken by erosion five times. Her husband go to work as a labourer against advance payment (dadan). He goes away in the month of Chaitra (March–April) on a six-month labour contract and earns Rs 300 per kottah. During those six months, Ganga supports the entire family by making bidis and frying muri. A group of women—Arati Mandal, Malati Mandal, Lakshmi Mandal, Rangbala Mandal, Rupali Mandal and Radharani Mandal— see us from a field and come up. Their hands and feet are covered with mud. “See how we live. This work of digging the soil fetches us a small income at the end of the day. And we get these lesions,” they say, showing the wounds all over their hands. They take us to show their makeshift homes: rows of tents with tattered plastic. But, they are under constant fear of losing this foothold, too. They got the “right” to settle in these private lands for six months by paying whatever
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they had after their homes were devastated. The period was about to end when we visited the area and the owners had already started pestering them to leave. The husbands and sons of most of them have only one occupation: unloading from trucks the boulders that are brought here to “check” erosion and carrying them for dumping at the riverbank. Although they have seen from experience that blocking the path of the river with boulders do not prevent disasters in the long run and complain of “corruption” even in this work, the local people are forced to accept it as a means of income as they have no other option. It fetches them Rs 50 a day, of course, if they are able to wrest the full payment from the contractors. Carrying the huge 40–50 kg boulders is not an easy task though, for these undernourished men and boys. Pushpa Haldar’s 14-year-old son bears a severe injury in his leg. It happened when a boulder they were carrying fell. There was no question of compensation from the contractors. The wound is getting worse day by day in the absence of proper treatment. Pushpa’s husband digs the soil. The payment is irregular. “Boulder politics” is a term that can be heard frequently while talking with the local people here. Members of the Samiti mentioned earlier alleged that for more than two decades, the dumping of boulders has benefited a contractor-politician nexus, while the erosion continues. Most of the boulders, dumped just before the onset of the monsoon, are washed away by the river during the rainy season and the cycle goes on. The local people have protested several times. At Akheriganj, Murshidabad, in July 2000, thousands of people staged a sit-in on the boulders at the banks of the Padma, responding to the call of Banya O Bhangan Pratirodh Committee. They demanded work in the dry season and stopping of boulder laying in the monsoon, pointing out that it resulted in millions of rupees going into the water every year. After a round of talks with the district officials failed, police and rapid action force lathicharged and fired on them. One person was killed and scores of others including pregnant women and aged persons were injured. (ABP, 19 July 2000) Healthcare is scarce in the area. Dipali Mandal’s son has an acute infection in one of his eyes. She doesn’t have the money to take him to a doctor elsewhere. Her husband was a fisherman. Now, there is little water in the river nearby. Going far for fishing involves the risk of being harassed by the police.
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Anjana Mandal has been able to get a cycle-van for Rs 4,800. The amount has to be repaid on a monthly instalment of Rs 150. Her husband has got tuberculosis and cannot work. It is difficult for her to go out for work and pay attention to her ailing husband. So, the van is lying at home for a couple of months. Udaynagar Bedana Biswas (32) has been displaced four times because of erosion. She has also had to live for some time in the char. Her husband works in the field. However, despite the distress, the family has not stopped the three children from going to school. The eldest son is in class VI, his brother in class V and the youngest, a daughter, in class II. Shefali Roy and Pratima Biswas tell us that most of the men in this colony have migrated elsewhere, since there is no work here. Tilaka Sarkar’s husband has migrated, too. He, however, has taken one of their three daughters with him. Tilaka has to bring up the two other daughters and a son. While the husband of Khukirani Baidya has gone “abroad” in search of work, she is seeing to it that her three children do not have to drop out of school. The eldest daughter studies in high school and her younger brother and sister in primary school. Like Khukirani, many women speak of their husbands having gone “abroad”, meaning Mumbai or some such distant place. Mankhushi Mandal and Ranubala Biswas also have the same story to tell. All of these women toil very hard to maintain their families, with little support from their husbands. Those who do not get work in the field try to find some alternative occupation. One of them is Kamala Biswas, who fries muri (puffed rice) for a living. It takes about two hours to fry 5 kg of muri, for which she gets Rs 5. Some, however, are more helpless. Kanaka Mandal, who cannot go out leaving her husband who is ill and unable to work, for example, has to depend on dole from her neighbours. Like Malda, the lack of toilets is an acute problem faced by the displaced women in Murshidabad. Going to others’ fields or orchards to relieve themselves is a daily humiliating experience for them. Women like Saraswati Mandal, Jhunu Mandal, Jayanti Mandal in Taltali and other places had a common complaint before us: “We don’t have any toilet. If we go to other’s fields [to answer nature’s call],
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they beat us.” When we later asked the block development officer of Jalangi about this problem, he assured us that 100 toilets had been built. This facility, however, could be availed by only those displaced families who could set up a new household with purchased land elsewhere. The overwhelming majority, who do not have a place to live which they can call their own, need at least temporary community toilets on an emergency basis which does not seem to be in the official scheme of things. The district magistrate of Murshidabad, N Manjunatha Prasad, told us that altogether 1,040 families had become homeless because of erosion since 2001. Of them, 550 families had been “resettled” in the char lands. However, the settlement was still at a “rudimentary” stage in the chars. He also informed that five mouzas had been obliterated completely. These were: Paschim Udaynagar Khanda, Paschim Chandpara, Uttar Ghoshpara, Farazipara and Paraspur. Each displaced family was entitled to a compensation of Rs 2,500 as compensation. Till now, only those whose grants had been sanctioned till July 2005 had actually received the money. Though there were no special schemes for women, they should get one-third of the jobs under the National Rural Employment Guarantee Act, the district magistrate said. Judging by their experience, the displaced women do not see any hope. In Murshidabad, one of them told us without hesitation: “Would you write about us? Would you let the authorities know about us? Then please write what we actually want—the government should send us poison so that we may die once and for all.” Cooch Behar Patchhara Her name seems striking to us at our first encounter: Gayna, which, in Bengali, means “ornament”. But, this beautiful name appears ironical when we hear the tragic life story of this young woman. She is the most vocal and at the same time most friendly one among the multitude of women who surround us on our visit to Patchhara on the bank of the river Saltia. She gestures, screams and whispers in a desperate effort to make us understand how difficult life is for her and her community sisters. And in the end, she breaks into poetry.
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The essence of her self-composed four-liner is: All I had is lost, now I leave it up to my destiny. Gayna was once happily married into a family, which owned 12 bighas of fertile land. Having lost all because of erosion, her husband left her for some place unknown to her. The young housewife now works as an irregular daily-wage labourer on others’ plots and just about manages to feed her little son and daughter. There are not too many people willing to give her work though, for, they suspect, her mental balance is in a delicate condition. Erosion of the banks of river Saltia has practically led to desertification in this part of the Cooch Behar 1 block of the Cooch Behar district. The Patchhara panchayat area was once the home of wellto-do peasants, with a community of happy fisher folk living around them. The Saltia river was the most wide and lively here. Middle-aged women who had been living here since their childhood told us that 20 years ago, they had nothing to worry about. The land was quite fertile and there was enough water in the river, both for irrigation and fishing. The problem started when the river started changing its course. Every monsoon, the banks of the shallow river erode away and the lands on the sides are inundated. When the waters recede, what remains is only sand, which cannot be removed. Scores of women accompanied us on an old culvert to from where the shift in the course was clearly visible. What was once the flowing river is now miles of sandy stretch. As the waters have moved away, they have covered the fertile fields with sand. No crop can be grown in this soil and no houses can be built. People have had to move away, some more than once, after their houses collapsed. They have not only lost their agricultural land, but also their homestead. As in the case of Malda and Murshidabad, most of the landed peasants have become landless labourers and their displaced families have had to find refuge on other’s land further away from the eroded banks. The only difference is that here, no family is living in the roadside yet. Getting jobs is not easy for the peasants turned paupers. So, there is a trend of mass migration of the men to Rajasthan, Delhi and Mumbai. The women have a tough time coping with the sudden impoverishment and feeding their children. Sixty-year-old Baneswari Madak lives alone. She has a son and a daughter, none of whom looks after her any longer on the pretext that they themselves can hardly maintain their own families in today’s situation. She cannot control her tears while speaking to us. In a
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choked voice she says, ‘Earlier, floods used to cause havoc here every year. We made friends with flood. Yet, we were ruined because of the erosion. Now, I have no other means of survival than begging.’ Anjali Ray of Uttar Patchhara village has lost her land and works as an agricultural labourer to maintain her family. Usharani, whose family once owned a large 14-bigha plot, has been losing land every year in the erosion. Now, she has only about one-and-a-half bighas left and is struggling to cope with the drastic loss of income. Others like Nupur Ray and Prankumari Ray have lost both land and homes. They earn not more than Rs 30 a day by working in other people’s fields in the agricultural season. Walking down by the eroded riverbank, we are stopped by the call of a woman. There she is, standing in waist-deep water with a net. The fisher woman, Ratna Ray Sarkar, has no objection to working hard to earn her day. But, she asks, where can she find some fish worth catching in this dying course of the river, which looks at best like a string of ponds amid miles of sand? We have no answer.
THE FINDINGS The Nature of the Disaster and Displacement Though erosion is the disaster causing the displacement in all the three districts, there are some differences among the agents of the disaster. In Malda, it is the erosion of the Ganga riverbanks, in Murshidabad, it is the erosion of the banks of Padma’s tributary Jalangi and in Cooch Behar, it is erosion along the sides of Saltia, a remnant of the old course of Torsha. There are differences in the impact, too. In Malda and Murshidabad, when a displaced person points to a direction and says, ‘That was my home’, or ‘That was my land’, one can see just plain water. In Cooch Behar, it is a barren stretch of sand. In both cases though, the loss has been the same—below the watery or sandy grave lie people’s homes, lands, hopes and dreams. In Malda, after a piece of land goes under water, a silt-bank or char often rises on the other side. There, the displaced people settle amidst great difficulties and somehow make the land yield to their hard toil. In case of an erosion such as in Cooch Behar, however,
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the land just becomes a sandbank, where hardly any crop except mustard can be grown. The once-well-off peasants are now paupers. One can see almost no paddy fields, only scattered mustard patches. In Murshidabad, too, the char where the displaced people are being rehabilitated is very sandy, they complain. ‘My relative died a few days ago. When we dug the earth to bury him, we found no soil but only sand’, said one of them. Impact on Women Economic The economy of the erosion-affected areas in all the three districts is in shambles as thousands of people have lost their home, land and livelihood. Whether it is a war, riot or natural disaster, women have to suffer the most. When the men go to war, the women have to maintain the family. The same is true in this case, too. Losing their livelihood, most of the men are forced to migrate in search of work, while the women are left with the responsibility to feed their children. The men who just sit at home without any work, too, pressure the women in various ways. Women have less earning opportunities. Some of them are rolling bidis, some fry puffed rice (muri), make badis with gram or dal paste, or do pottery or other work. In Malda there are more skilled bidi workers among them than in Murshidabad and Cooch Behar. Many are trying to pick up the skill now under economic compulsions. Most of these women get less than the rates negotiated between the bidi workers’ unions and the owners/contractors and are unorganised. Some of them go to work in the fields during the sowing season and to dig and carry the soil. In these two jobs, too, they are less paid than the male workers. Women from the Bagdi community in Murshidabad go for fishing, but face complaints of harassment by securitymen. Many of the rest say candidly that they are engaged in an “illegal profession”. In Jalangi, one can see scores of women crossing the Bangladesh borders with sugar, electronic items, cloth, etc. Besides their daily toil, some of them admit, they have to “please” the securitymen for carrying out their unlawful livelihood. Making daily visits to the newly emerged chars to fetch as big a load of wild grass as they can carry and selling them for a meager Rs 5 to Rs 10 has also become
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a major occupation for women in Malda. They, too, have to keep people at the ghats “pleased”. This has been going on as there is no official programme to provide alternative and long-term means of livelihood to the displaced women. Health (i) Toilets The greatest problem for the displaced women is related to health and sanitation. As they are mostly occupying the land of others, they have no toilet facilities. This essential facility is lacking even at the “rehabilitation colony” on the land acquired under government scheme in Malda, except a few toilets and a well built by non-governmental efforts. Here, one has to remember that most of these women did have toilets where they used to live before the rivers took away their homes. The severity of the toilet problem cannot be explained unless one sees it. It is affecting their very biological cycle. Learning to remain silent to nature’s call during the long hours between daybreak and the dead of night is no easy task. Going to the deserted orchards, fields or canal sides for their daily needs in unearthly hours is causing a security risk to many. Often, they have to run for life or face abuses and even physical assaults from the owners of the orchards or fields. In this scenario, the government-sponsored awareness campaign calling people to have proper sanitation facilities at their homes carry no meaning for them. Although the block development officer of Jalangi stressed that 100 toilets had been built for the displaced families, these could be availed only by a small minority having ownership of their residential plots. We sought the opinion of Dr Sujit Ghosh of Malda on what effects could the lack of toilet facilities have on the women. According to him, as the problem continues for a long period of time, it could lead to a wide range of illnesses, including urinary tract infection, gastric irritation, anorexia, etc. (ii) Drinking Water As it is, getting safe and clean drinking water is a general problem in the arsenic-prone districts. For the displaced people, the
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problem is much more acute. In most places, the women have to fetch drinking water with hardship from a distance. Arsenic poisoning has become manifest in the bodies of many. They complain that they do not get “proper behaviour”, let alone proper treatment or medicines, at the local health centres for arsenicosis or any other disease. The victims of malnutritionrelated ailments are also mostly women and children. (iii) Medical Attention A pregnant woman living in a char after displacement had developed some complications before childbirth. She was being brought by boat to the mainland, from where she was to be taken to the Malda hospital, quite far away. On the way, she gave birth to her baby in the middle of the river. A long tussle between life and death followed for both the mother and the child. Narrating this incident, a woman from the char said, “There’s no way we can reach a doctor in case of emergencies. We are particularly worried about our children.” Not only in the chars, but also in the colonies of the displaced people, the lack of medical attention is quite apparent. The starvation and malnutrition deaths that have occurred in Jalangi could perhaps be avoided if at least some medical facilities were available. As it is, women’s health is a neglected issue. Displacement has made them more vulnerable. Education The women show great interest in matters of education. Even the poorest of families send their girls to schools. However, though many of the women stress the need to educate their girl children—a chance they themselves did not have even if they wished to—other reasons have been heard, too. These are: “a girl’s value in today’s marriage market falls if she is not educated to some extent”, “the boys get jobs such as handling the boulders (for embankments), girls better go to school and get mid-day meals than sit idle at home”, etc. Studies are also being affected as many schools have to shut down or shift in the wake of erosion. Even as we were wrapping up our study, an incident occurred in Panchanandapur in Malda, which was a telling example of how a
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struggling woman’s dream of getting her child properly educated hit the roadblocks because of repeated post-erosion displacement. Early in June, 2006, the day the Madhyamik examination results were published, a boy named Nasim Akhtar attempted to commit suicide, though he was ultimately saved by neighbours. It was not the case of an unsuccessful candidate taking the extreme step in despair. Nasim had done well in the exams, securing “star” marks with two “letters”. He went home with his mark-sheet and told his grandfather that he would like to fulfil his dream of pursuing science studies. The aged man, however, told him that he did not have resources to support his studies any longer and he should look for a job instead. Nasim’s father was once a well-to-do peasant. The family lost their home and land in the erosion of the Ganga riverbanks in 1998 and his father went off to Mumbai as a labourer. His mother had to maintain her children on her own. She learnt the skill of making bidis and brought up Nasim and his sisters with much hardship. After educating her two daughters up to middle school levels and getting them married, she placed her son in the custody of her father, who had some property and could support his studies. Staying at his grandfather’s house, Nasim kept up his reputation as the “first boy” of Nayabazar High School, year after year. On 24 August 2005, his grandfather’s house went under the waters. We have seen the spot where the house was—it now looks like a large pond. We have also visited colony of makeshift huts beside the high road at Bangitola, where the grandfather’s family has been living since the disaster, along with many others. Nasim’s mother refused to go anywhere from her devastated village, where she lives in a bare bamboo structure. After hearing from his grandfather the plain truth, Nasim went there to tell his mother about his results, and hung a noose from a bamboo beam at the back of the hut. Domestic Violence With the loss of income and increasing economic hardships for men, many of them want to lay their hands on the women’s meager income. The demands go on increasing and if not met, are expressed in domestic violence. Many of the women who try to keep their menfolk satisfied by giving them a share of their income, too, often find that they waste it on liquor and come back for more. The cycle of
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domestic violence keeps revolving. In some places such as Sakurullapur in Malda, the problem is often reported. Sexual Risks The displaced women face various sexual risks. Their compulsion to “please” securitymen and others at the instance of those who run the smuggling rackets has been mentioned earlier. There is also a racket operating which arranges the “marriage” of girls from displaced families in “Bihar” or other distant places. During our investigation, we found that this phenomenon is particularly prevalent in Murshidabad. Many of the families in Jalangi say one or two of their daughters had been married off in Bihar. In a prolonged conversation, their mothers admit that the marriage might have been only in name and that they often do not hear of their girls after that. But, they express their helplessness and defend the “marriage” saying that they might not have lived a better life here. Horror stories of someone’s husband returning from work-sites in Mumbai or Delhi are heard, too. The panic is spreading considerably below the surface, even as there is no system of health-checks, even irregular ones. Self-organisation of the Displaced People The people devastated and displaced by erosion have formed their own organisations in each of the three districts, such as the Ganga Bahngan Pratirodh Nagarik Action Committee, Malda, Bhangan Bidhwasta Udbastu Colony O Punarbasan Samiti, Murshidabad, Saltia Bhangan Pratirodh Nagarik Committee in Cooch Behar. These organisations have brought together people from diverse political affiliations and various communities and age groups. Women, though fewer in number, participate actively in all of these forums. We have also found that the displaced women show remarkable forwardness in narrating their conditions and voicing their needs and demands, even to the male member of the research team. Women’s self-help groups exist in wide parts of the erosion-affected areas and there is no dearth of the women’s enthusiasm to join them. The organiser women of these groups are trying their best to help the others cope with the difficulties. The support of the SHGs extends far beyond financial contexts, even to social and familial contexts.
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Mitra Sarkar of Jalangi, Murshidabad, is a woman in her early 20s secondary school graduate, who is the organiser of 10 SHGs on behalf of a local organisation, Milan Sangha. She told us that the success of the women’s SHGs sometimes led to an ironic situation in these places. The men, rendered jobless by the erosion, are not only envious of the women family members who are benefiting economically by participating in these groups, but also keep on pressuring them for money. “A member in one of the groups had taken Rs 20 from the SHG for doing business. After some time, she came back and took Rs 200 more. When she came back for the third time, we asked her what she was doing with the money. She broke down and told us that her husband had been forcing her to bring cash from the SHG and spending it in no time. We went to her home and after several sessions, convinced her husband to share the business with her rather than pester her for money. There he sits now,” she said complacently, pointing at a man sitting by the roadside with a small stock of vegetables. Attitude Towards Women’s Problems Even though women are the worst sufferers in the erosion disaster and there is evidently a need for special strategies to help them cope with the hard situation, this need is not reflected in the attitudes of those who are concerned with policy making and implementation, or even civil society organisations. This became apparent to us during our interactions at various levels. When we met the district magistrate of Murshidabad, we asked him what measures were being taken or planned to help the displaced women. There is no special plan for women, he said, adding as an afterthought that one-third of the beneficiaries of the schemes under the National Rural Employment Guarantee Act would be women. Women panchayat members in Cooch Behar’s Patchhara—Parbati Barman, Nidhu Roy and Manju Roy—said that officially there was no particular strategy in respect of women affected by the disaster, but they were trying to reach out to them and discuss their problems with them. However, in Murshidabad as well as Cooch Behar, the SHG organisers complained that the local bank officials often discriminated against the displaced women, refused to understand their situation and blocked transactions on various “pretexts” such as mismatching
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of signatures, a common problem with neo-literates. Even the local citizens’ organisations do not see the need for special strategies. Responses to our queries in this regard ranged from indifference to dislike. A senior teacher who drafts most of the English petitions and correspondences of the Ganga Bhangan Pratirodh Nagarik Action Committee in Malda questioned the very basis of a survey like ours, saying, “Why focus only on women when both men and women are suffering?” These organisations, in their charters, have never placed any special demands concerning the women. However, in course of ours discussions with them, most of the organisers admitted, “We haven’t thought of this earlier. It is true that women have special problems,” and took us to show how the erosion-displaced women were struggling. {…}
Gulamiya Ab Hum Nahi Bajeibo
SECTION II
Social Justice: The State and Its Perceptions
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Introduction
J
ustice, as have been mentioned earlier in the introduction has manifold contextual implications. One of the implications of this manifold context is that while the issue of justice is studied only or mostly closely in terms of governance, its delivery mechanisms, and the various governmental forms of justice, social justice as distinct and as the other of governmental justice emerges as a distinct category of social reality to be inquired and appreciated in its own right. Such an understanding concentrates on the forms of social justice, the ‘justiciability’ of social justice and the significance of the particular relation between rights, capabilities, claims and law in terms of the idea of social justice—equally significantly, in terms of making this idea a reality. Very importantly, the significance of this has to be sought in the realisation of the notion of responsibility—responsibility of the state, its various organs, various governmental institutions and their national and international commitments—to provide justice. There exists an interrelation in the understanding of justice, which flows from the individual, the family and the society. This tripartite conceptualisation of justice is negotiated in many ways, finding its final and authoritative legal expression in the form of laws. Government bodies representing the state have their own language of social justice. The state works towards legitimating its own rule and to gain acceptance of the various social forces within the national territory. This task of state formation is done by the state through an idiom. The constitution was a first attempt at building this idiom and the Fundamental Rights and Directive Principles are a significant but small part of this language. The state exercises its almost complete hold in what it terms as its ‘eminent domain’, referring to all the resources that are within the specified border, that marker which etches out nationstates and symbolises national territory, silently including humans too. While the state has its rules, statutes and the constitution as a means of guaranteeing justice, we are forced to perpetrate a sense of identity and tell others to do what they want to, allowing no deviation. For this purpose, the Indian state, like any other post-colonial state,
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developed its own language of rights and claims to deliver justice and build the national consensus. However, in an increasingly neo-liberal world this consensus has been fractured. As this nationalist consensus gradually gets fractured, the need for enunciating laws and policies basically meant for reincorporating the fragments into the national body and re-establishing the consensus is more deeply felt. Globalisation, therefore, coincides with a hitherto unprecedented explosion in bills, acts and especially policies. We are now passing through a phase of policy explosion particularly since the 1990s. National Employment Guarantee Act, a draft of National Rehabilitation Policy 2007, Policy on Tribes 2005, etc. provide only some examples of this. This obviously has a two-fold implication: (a) the language of policies and acts is not the language of rights. Rights are basically defined as claims against the collective and (b) the guarantee of such rights are aimed at winning back the eroding habitual obedience of its subject that the state demands. Nation-state building attempts a recovery of its fractured consensus, but once these fragments are replaced and reunified with the national body will not make the latter exactly the same as before. The Indian state understanding that a lacuna exists in the existing system of governmental responsibility and delivery mechanism for social justice, has established a ‘Ministry of Social Justice and Empowerment’ which claims in the Citizen’s Charter that it ‘aims to facilitate the integration and empowerment of sections of society vulnerable to marginalisation and denial of social and economic rights through the identification and analysis of causes and the extent of marginalisation and overseeing of the implementation of these laws: (i) Protection of Civil Rights Act, 1955 (ii) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (iii) National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1998 (iv) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (v) Rehabilitation Council of India Act, 1992 (vi) Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
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The Ministry also claims that the mission of the Ministry of Social Justice and Empowerment is to empower the disadvantaged and marginalised sections of the society namely, Scheduled Castes, Backward Classes, Persons with Disabilities, aged persons, and victims of alcoholism and drug abuse through educational, economic and social development. Some other claims that it makes are: citizen friendly initiatives including policy changes in consultation with the state government and the civil society; running and maintaining of projects in partnership with the state governments, non-government organisations (NGOs) and local self-help group; strengthening capabilities and financial availability for schemes and programmes of the state governments and spread of awareness of rights and schemes. The Ministry spells out its list of ‘clients’, which include: A. B. C. D. E.
Scheduled Castes Other Backward Classes Persons with Disabilities Alcohol and Drug Dependants Senior Citizens
A two-way critique can be articulated in this understanding of the concept of justice by the state. First, it presupposes the existence of a sense of justice fulfilment among its mainstream ‘clients’. Delivery of justice is for only those who live in the margins (whose definition/ character is very nebulous. For those few to whom the ministry aims to reach out, they are earmarked for the state benefits which some term as ‘charity’. This brings us to the second critique: because of its very limited nature of the states’ perception of who needs justice, it is the state which decides that some, not all of those on the periphery needs to be incorporated in the national body. The periphery does not include deviants except those it deems fit, like those dependent on alcohol and drugs. The concept of gender justice is conspicuous by its absence. Women, as a category of their own, are not to be delivered justice in the same platform where the SCs and Schedule Tribes (STs), disabled persons, etc., are to vie for justice. In this way, the state reaches out to its ‘clients’, inversing the meaning of clientelism that it practices is in reality. This is an attempt to expand the national body that the state seek to recreate in the age of globalisation, which will in turn be unrecognisably distinct from what it was in the earlier era.
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In this context we present, in this section of the compendium, a select few of such plethora of such texts. While reading these bills, policies and acts, the following factors are needed to be taken into account, namely: the particular historical conditions in which the bills and policies are being framed and the implementation mechanisms and their nature. We have to ponder whether these bills, acts and policies are of any particular interests in plural societies like India and the presence or absence of the dialogic basis of there formulation; We also have to look into the elements that go in the making of these acts policies etc., such as, imagination, data base, interest aggregation, vested interests in securing certain benefits from these acts and policies and conservatism. The few acts and policies selected in this section are: 1. Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005. 2. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 3. RTI Act, 2005 4. NRP, 2007 5. The Protection of Women from Domestic Violence Act, 2005 If we surge deeper, we may find how globalisation acts as a pressure for structural reforms and on the other hand mass movements in defence of social security become catalysts for new acts and policies. So are these a response from the top to the pressure from below for justice? And, if that is so, how exactly do such mechanisms work as part of the phenomenon of ‘governmentality’? The language of acts, laws and policies in this way, appropriates the language of rights and justice, and locating justice at the level of policies implies governmentalisation of justice.
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Gulamiya Ab Hum Nahi Bajeibo
6 The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 A BILL To empower the State Governments and the Central Government to take measures to provide for the prevention and control of communal violence which threatens the secular fabric, unity, integrity and internal security of the Nation and rehabilitation of victims of such violence and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:
CHAPTER I PRELIMINARY 1. (1) This Act may be called the Communal Violence (Prevention, Control and Rehabilitation of Victims) Act, 2005. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force in the Union territories on such date as the Central Government may, by notification, appoint.
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(4) The provisions of this Act, except Chapters II to VI (both inclusive), shall come into force in the States on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and the provisions of Chapters II to VI (both inclusive), shall come into force in a State as the State Government may, by notification, appoint and any reference to any provision of this Act to the commencement of this Act shall, in relation to a State, be construed as a reference to the commencement of that provision in that State. 2. (1) In this Act, unless the context otherwise requires, (a) “Code” means the Code of Criminal Procedure, 1973; (b) “Communally disturbed area” means an area declared as such under subclause (i) of clause (c) of sub-section (1) of section 3 or under clause (a) of subsection (3) of section 55; (c) “communal violence” means any act of omission or commission which constitutes a scheduled offence and which is punishable under section 19; (d) “competent authority” means such officer or authority as the State Government or the Central Government may, by notification, appoint as the competent authority under sub-section (4) of section 3 or as a Unified Command under sub-section (4) of section 55, as the case may be; (e) “District Council” means the District Communal Disturbance Relief and Rehabilitation Council established by the State Government under sub-section (1) of section 42; ( f ) “District Fund” means the Victims Assistance Fund established by the State Government under section 51; (g) “National Council” means the National Communal Disturbance Relief and Rehabilitation Council constituted by the Central Government under sub-section (1) of section 45; (h) “notification” means a notification published in the Official Gazette; (i) “period of disturbance”, in relation to a communally disturbed area, means the period during which it is declared to be a disturbed area under section 3 or section 55, as the case may be; (j) “prescribed” means prescribed by rules made under this Act; (k) “relief and rehabilitation” includes providing shelter, medical care, food, clothing, education, vocational training and counselling
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or such other measures of relief as may be considered necessary by the State Council or the District Council to the victim of communal violence; (l) “scheduled offence” means an offence specified in the Schedule; (m) “Special Court” means a Special Court established under subsection (1), or an additional special court established under sub-section (2), of section 24; (n) “State Council” means the Communal Disturbance Relief and Rehabilitation Council established by the State Government under section 39; (o) “State Fund” means the State Communal Disturbance Relief and Rehabilitation Fund established by the State Government under subsection (1) of section 49; (p) “Unified Command” means the authority constituted by the Central Government or the State Government under sub-section (4) of section 55. (2) The words and expressions used and not defined in this Act but defined in the Explosives Act, 1884 or the Arms Act, 1959 shall have the meanings respectively assigned to them in those Acts.
DECLARATION
CHAPTER II CERTAIN AREAS AS COMMUNALLY DISTURBED AREAS
OF
3. (1) Whenever the State Government is of the opinion that one or more scheduled offences are being committed in any area by any person or group of persons— (a) in such manner and on such a scale which involves the use of criminal force or violence against any group, caste or community, resulting in death or destruction of property; and (b) such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities; and (c) unless immediate steps are taken there will be danger to the secular fabric, integrity, unity or internal security of India, it may, by notification,
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(i) declare such area to be a communally disturbed area; (ii) constitute such area into a single judicial zone or into as many judicial zones as it may deem fit. (2) A notification under sub-section (1) in respect of any area shall specify the period during which the area shall, for the purpose of this Act, be a communally disturbed area: Provided that the period specified in such notification shall not, in the first instance, exceed thirty days, but the State Government, may amend such notification to extend such period from time to time by any period not exceeding thirty days at any one time, if in the opinion of that Government public peace and tranquillity continues to be disturbed in such area. (3) Where any area has been notified as a communally disturbed area under subsection (1), it shall be lawful for the State Government to take all measures, which may be necessary to deal with the situation in such area. (4) When a notification has been issued under sub-section (1), the State Government shall notify one or more officers of the State Government as the competent authority for the purposes of this Act and different competent authorities may be appointed for different provisions of this Act. 4. (1) Where the State Government has declared an area to be a communally disturbed area under sub-section (1) of section 3, it shall take such immediate measures as may be necessary to prevent and control communal violence in such area. (2) If the State Government is of opinion that assistance of the Central Government is required for controlling the communal violence, it may request the Central Government to deploy armed forces of the Union to control the communal violence.
CHAPTER III PREVENTION OF ACTS LEADING TO COMMUNAL VIOLENCE 5. (1) Notwithstanding anything contained in the Code, whenever the District Magistrate has reason to believe that in any area within his jurisdiction, a situation has arisen where there is an apprehension of
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breach of peace or creation of discord between members of different groups, castes or communities, he may, by order in writing, prohibit any act which in his opinion is likely to cause apprehension in the minds of another community or caste or group that it is directed to intimidate, threaten or otherwise promote ill-will against that community or caste or group. (2) Notwithstanding anything contained in sections 6, 7, 9 and 10, the District Magistrate shall also have the same powers as the competent authority has in the area under his jurisdiction in relation to the provisions of the said sections. (3) Whoever contravenes an order under this section shall be punished with imprisonment for a term, which may extend to one year, or with fine, or with both. 6. (1) A competent authority in any area within his jurisdiction which has been notified as a communally disturbed area, by order in writing, (i) direct the conduct of any assembly or procession in any place or street and specify by general or special notice the routes, if any, by which and the times at which, such procession may or may not pass; (ii) require, by general or special notice, on being satisfied that any person or class of persons intend to convene or collect a assembly or an procession in any place or street or to form an assembly or procession which would in his judgment, if uncontrolled, is likely to cause a breach of peace that the person convening or collecting such assembly or procession or directing or promoting such assembly or procession shall not do so without applying for and obtaining a licence; and (iii) prohibit or regulate the use of loudspeaker, music or sound amplifier or any other noisy instrument in any street or public place or in any private place if the use of which may cause annoyance to neighbours. (2) An order under sub-section (1) shall remain in force for such period as may be necessary or thirty days, whichever is less: Provided that the State Government, after reviewing the effect of the order, if considers it necessary for the preservation of communal peace or harmony between different groups, castes or communities or public safety or maintenance of public order in such area, may, by notification, direct that the order issued under sub-section (1) shall remain in force for such further period not exceeding sixty days from the date of the first order.
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7. (1) When any area has been notified as a communally disturbed area, then, notwithstanding anything contained in any law for the time being in force, the competent authority may direct, any person or class of persons, or all persons, in a communally disturbed area, to deposit forthwith all arms, ammunition, explosives and corrosive substance, with the nearest police station, whether such person has a licence to keep such arms, ammunition, explosives, corrosive substance or not: Provi ded that a competent authority may exempt any individual or class of individuals from the operation of such order. (2) Whoever contravenes the provisions of an order made under this section shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 8. When any area has been notified as a communally disturbed area, then, notwithstanding anything contained in any law for the time being in force, if an officer in charge of a police station has reason to believe, (a) any person residing in the limits of his jurisdiction within a communally disturbed area has in his possession any arms or ammunition, or explosives or corrosive substance, for any unlawful purpose; and (b) such person cannot be left in the possession of any arms or ammunition, or explosive or corrosive substance, without danger to the public peace or safety, the officer in charge of the police station may himself or by another officer, not below the rank of a Sub-Inspector of Police authorised in this behalf by the officer in charge, search the house or premises occupied by such person or in which the officer in charge has reason to believe that such arms or ammunition, or explosives or corrosive substance, are, or is to be, found, and may have such arms, ammunition, explosives or corrosive substance, if any, seized, and detain the same in safe custody for such period as he thinks necessary although the person may be entitled by virtue of any law for the time being in force to have the same in his possession. 9. (1) When any area has been declared as a communally disturbed area, then, notwithstanding anything contained in any law for the time being in force, any competent authority may in the areas under his jurisdiction, whenever and for such time as he may consider necessary, for the preservation of public peace or public safety by a notification publicly promulgated or addressed to individuals, prohibit at any
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town, village or place or in the vicinity of any such town, village or place in a communally disturbed area— (a) the carrying of arms, cudgels, swords, spears, bludgeons, guns, knives, sticks or lathis, or any other article, which is capable of being used for causing physical violence; (b) the carrying of any corrosive substance or explosives; (c) the carrying, collection and preparation of stones or other missiles or instruments or means of casting or impelling missiles; (d) the exhibition of persons or corpses of figures or effigies thereof; (e) the public utterances of cries, singing of songs, playing of music; ( f ) delivery of harangues, the use of gestures or threats, and the preparation, exhibition or dissemination of pictures, symbols, placards or any other object or thing, which may in the opinion of such authority lead to a breach of public peace. (2) If any person goes armed with any such article or carries any corrosive substance or explosive or missile in contravention of such prohibition, he shall be liable to be disarmed or the corrosive substance or explosive or missile shall be liable to be seized from him by any police officer, and the article, corrosive substance, explosive or missile so seized shall be forfeited to the Government. (3) The competent authority may also, by order in writing, prohibit in a communally disturbed area any assembly or procession whenever and for so long as he may deem such prohibition to be necessary for the preservation of the public peace: Provided that no such prohibition ordered by an authority subordinate to the State Government shall remain in force for more than fifteen days without the sanction of the State Government. (4) The competent authority may, by public notice, in a communally disturbed area temporarily reserve, for any public purpose any street or public place and prohibit persons from entering the area so reserved, except under such conditions as may be specified by such authority. (5) Whoever disobeys an order lawfully made under this section, or abets the disobedience thereof, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 10. (1) Without prejudice to the provisions of any other law for the time being in force, a competent authority, in regard to a communally disturbed area, may make orders for— (a) controlling or regulating the admission of persons to, and the conduct of persons in, and in the vicinity of such area;
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(b) requiring the presence of any person or class of persons in such area, to be intimated to any prescribed authority, specified in the said order; and (c) prohibiting any person or class of persons from being in possession or control of any article specified in the said order. (2) Whoever contravenes any order made under this section, without just and sufficient cause, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. 11. (1) No person loitering in, or in the vicinity of, any communally disturbed area shall continue to loiter in, or in that vicinity after being ordered to leave it, by a police officer, or any other person authorised in this behalf by the competent authority. (2) Whoever contravenes the provisions of this section without just and sufficient cause shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. 12. Whoever, being present within a communally disturbed area, has in his possession any arms, ammunition, explosives or corrosive substance without any licence or lawful authority, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 13. Any person who knowing or having reasonable cause to believe that any other person has committed any act or omitted to do an act, the commission or omission of which, would be an offence under the provisions of this Act, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said offence, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 14. Whoever knowingly expends or supplies any money in furtherance or in support of an act which is an offence under this Act, shall be punished with imprisonment for a term, which may extend to three years, and shall also be liable to fine. 15. Whoever, threatens any person, (i) who is, or is likely to be, a witness in any prosecution for an offence under this Act, or in any trial before a special court constituted under this Act; (ii) who has in his possession or knowledge any material document or other information which if produced before an investigating officer,
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or a court, could be used as evidence in the investigation for an offence under this Act, or in a trial before a Special Court constituted under this Act; (iii) with any injury to his person or property or to the person or property of any one in whom that person is interested, with intent to cause harm to that person, or to compel that person to refrain or withdraw from being a witness in such investigation or trial, or to prevent that person from producing such material, document or information before the investigating officer or court as mentioned aforesaid, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 16. Whoever being the owner, driver or otherwise in charge of any goods transport vehicle carries or causes to be carried in the vehicle in a communally disturbed area, any number of persons in excess of the numbers permitted under the Motor Vehicles Act, 1988 or the rules made thereunder, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both. 17. (1) Whoever being a public servant or any other person authorised to act by a competent authority under any provisions of this Act or orders made thereunder, (a) exercises the lawful authority vested in him under this Act in a mala fide manner, which causes or is likely to cause harm or injury to any person or property; or (b) wilfully omits to exercise lawful authority vested in him under this Act and thereby fails to prevent the commission of any communal violence, breach of public order or disruption in the maintenance of services and supplies essential to the community, shall be punished with imprisonment which may extend to one year, or with fine, or with both. Explanation—For the purposes of this section, any police officer who, wilfully refuses— (i) to protect or provide protection to any victim of communal violence; (ii) to record any information under sub-section (1) of section 154 of the Code relating to the commission of any scheduled offence or any other offence under this Act; (iii) to investigate or prosecute any scheduled offence or any other offence under this Act, shall be deemed to be guilty of wilfully omitting to exercise the lawful authority vested in him.
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(2) Notwithstanding anything contained in the Code, no court shall take cognizance of an offence under this section except with the previous sanction of the State Government: Provided that every request for the grant of sanction under this section shall be disposed of by the State Government within thirty days from the date of the request. 18. Notwithstanding anything contained in any other law for the time being in force, whoever contravenes an order under section 144 of the Code, if that order is in respect of any person or thing or any matter relating to a communally disturbed area under this Act, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
ENHANCED
CHAPTER IV PUNISHMENT FOR COMMUNAL VIOLENCE
19. (1) Whoever commits any act of omission or commission which constitutes a scheduled offence on such scale or in such manner which tends to create internal disturbance within any part of the State and threatens the secular fabric, unity, integrity or internal security of the nation is said to commit communal violence. (2) Notwithstanding anything contained in the Indian Penal Code, or in any other Act specified in the Schedule, whoever commits any act of omission or commission which constitutes communal violence shall, except in the case of an offence punishable with death or imprisonment for life, be punished with imprisonment for a term which may extend to twice the longest term of imprisonment and twice the highest fine provided for that offence in the Indian Penal Code or in any other Act specified in the Schedule, as the case may be: Provided that whoever being a public servant or any other person authorised to act by a competent authority under any provisions of this Act or orders made thereunder, commits communal violence shall without prejudice to the foregoing provisions be punished with imprisonment which shall not be less than five years. (3) Any person who is guilty of an offence under sub-section (1) shall be disqualified to hold any post or office under the Government for a period of six years from the date of such conviction.
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CHAPTER V
INVESTIGATION 20. (1) Notwithstanding anything contained in the Code or any other law, every scheduled offence shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and “cognizable case” as defined in that clause shall be construed accordingly. (2) Notwithstanding anything contained in the Code, no police officer, below the rank of Sub-Inspector of Police or a police officer of equivalent rank shall investigate any offence punishable under this Act. (3) Section 167 of the Code shall apply in relation to a case involving a scheduled offence subject to the modification that the reference in sub-section (1) thereof to “Judicial Magistrate” shall be construed as a reference to “Judicial Magistrate or Executive Magistrate”. (4) Sections 366 to 377 (both inclusive) and section 392 of the Code shall apply in relation to a case involving a scheduled offence, subject to the modification that the references to “Court of Session”, wherever occurring therein, shall be construed as references to “Special Court”. 21. (1) Whenever an area has been declared under sub-section (1) of section 3 as a communally disturbed area, the State Government shall, without prejudice to the provisions of clause (s) section 2 of the Code, declare any post or place within such area to be a police station and the provisions of Chapter XII of the Code shall, so far as may be, apply in relation to information to the police and their powers to investigate. (2) The State Government shall provide as many women police officers as possible to record any information relating to the commission of a scheduled offence committed against women or children in the communally disturbed area and to investigate any such offence. 22. (1) Notwithstanding anything contained in the Code, every case, registered in connection with a scheduled offence committed in a communally disturbed area, and where the Investigating Officer does not file a charge sheet within a period of three months from the date of registration of the First Information Report shall be reviewed by a committee headed by an officer of the level of an Inspector-General of
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Police to be constituted by the State Government and such committee may pass orders for a fresh investigation by another officer not below the rank of Deputy Superintendent of Police wherever it comes to the conclusion that, having regard to the nature of investigation already carried out, such investigation would be necessary. (2) The committee constituted under sub-section (1) may also review cases of such offences where the trial ends in acquittal and issue orders for filing appeal, wherever required. (3) The committee shall submit a report of its findings and action taken in each case or cases to the Director General of Police. 23. Notwithstanding anything contained in any other law for the time being in force, where the State Government comes to the conclusion that the investigation of offences committed in any communally disturbed area were not carried out properly in a fair and impartial manner it may constitute one or more Special Investigation Teams as it thinks necessary for the purposes of investigation of such offences.
CHAPTER VI SPECIAL COURTS 24. (1) The State Government shall establish one or more Special Courts for trial of scheduled offences committed during the period of disturbance by issuing a notification for the purpose. (2) Notwithstanding anything contained in sub-section (1), if, having regard to the exigencies of the situation prevailing in a State, the Government is of the opinion that it is expedient to establish, Additional Special Courts outside the State, for the trial of such scheduled offences committed in a communally disturbed area, the trial whereof within the State— (a) is not likely to be fair or impartial or completed with utmost dispatch; or (b) is not likely to be feasible without occasioning a breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge or any of them; or (c) is not otherwise in the interests of justice, it may request the Central Government to establish, in relation to such communally disturbed area, an Additional Special Court outside the State and thereupon the
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Central Government may, after taking into account the information furnished by the State Government and making such inquiry, if any, as it may deem fit, establish, by notification, such Additional Special Court at such place outside the State as may be specified in the notification. 25. (1) A Special Court shall be presided over by a Judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court. (2) The State Government may also appoint, with the concurrence of the Chief Justice of the High Court, Additional Judges to exercise jurisdiction in a Special Court. (3) A person shall not be qualified for appointment as a Judge or an Additional Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. (4) For the removal of doubts, it is hereby provided that the attainment by a person, appointed as a Judge or an Additional Judge of a Special Court, of age of superannuation under the rules applicable to him in the service to which he belongs, shall not affect his continuance as such Judge or Additional Judge. (5) Where any Additional Judge is, or Additional Judges are, appointed in a Special Court, the Judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among himself and the Additional Judge or Additional Judges and also for the disposal of urgent business in the event of his absence or the absence of any Additional Judge. 26. A Special Court may, if it considers it expedient or desirable so to do sit for any of its proceedings at any place, other than the ordinary place of its sitting in the State in which it is established: Provided that if the Public Prosecutor certifies to the Special Court that it is in his opinion necessary for the protection of the accused or any witness or otherwise expedient in the interest of justice that the whole or any part of the trial should be held at some place other than the ordinary place of its sitting, the Special Court may, after hearing the accused, make an order to that effect unless, for reasons to be recorded in writing, the Special Court thinks fit to make any other order. 27. (1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in a judicial zone in a State
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at any time during the period during which such judicial zone is, or is part of, a judicial zone, shall be triable, whether during or after the expiry of such period only by the Special Court established for such judicial zone in the State: Provided that where the period specified under sub-section (2) of section 3 as the period during which an area declared by notification under sub-section (1) of that section to be a communally disturbed area commences from a date earlier than the date on which such notification is issued, then— (a) nothing in the foregoing provisions of this sub-section shall apply to a scheduled offence committed in such area in which the whole of the evidence for the prosecution has been taken before the date of issue of such notification; and (b) all other cases involving scheduled offences committed in such area and pending before any court immediately before the date of issue of such notification shall stand transferred to the Special Court having jurisdiction under this section and the Special Court to which such proceedings stand transferred shall proceed with such cases from the stage at which they were pending at that time. (2) Notwithstanding anything contained in sub-section (1), if in respect of a case involving a scheduled offence committed in any judicial zone in a State, the State Government, having regard to the provisions of this Act and the facts and circumstances of the case and all other relevant factors, is of the opinion that it is expedient that such offence should be tried by the Additional Special Court established in relation to such judicial zone outside the State, the State Government may make a declaration to that effect. Explanation—Where an Additional Special Court is established in relation to two or more judicial zones, such Additional Special Court shall be deemed, for the purposes of this sub-section, to have been established in relation to each of such judicial zones. (3) A declaration made under sub-section (2) shall not be called in question in any court. (4) Where any declaration is made in respect of any offence committed in a judicial zone in a State, any prosecution in respect of such offence shall be instituted only in the Additional Special Court established outside the State in relation to such judicial zone and if any prosecution in respect of such offence is pending immediately before such declaration in any other court, the same shall stand transferred
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to such Additional Special Court and such Additional Special Court shall proceed with such case from the stage at which it was pending at that time. 28. (1) When trying any scheduled offence, a Special Court may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with the scheduled offence. (2) If, in the course of any trial under this Act, it is found that the accused person has committed any offence, the Special Court may, whether such offence is or is not a scheduled offence, convict such person of such offence and pass any sentence authorised by law for the punishment thereof. 29. (1) For every Special Court, the State Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutors: Provided that the Government may also appoint for any case or class of cases a Special Public Prosecutor. (2) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section only if he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law. (3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly. 30. (1) A Special Court may take cognizance of any scheduled offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. (2) Notwithstanding anything contained in the Code, the Special Court shall conduct its proceedings on a day-to-day basis excluding public holidays. (3) Where a scheduled offence is punishable with imprisonment for a term not exceeding three years, or with fine, or with both, a Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary
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way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code shall, so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation to a Special Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years. (4) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof. (5) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Sessions so far as may be in accordance with such procedure specified in the Code for the trial before a Court of Session. (6) Subject to the other provisions of this Act, every case before an Additional Special Court shall be dealt with as if such case had been transferred under section 406 of the Code to such Additional Special Court. 31. Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case be transferred from one Special Court to another Special Court. 32. (1) A Special Court may, on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of the witness secret.
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(2) In particular and without prejudice to the generality of the provisions of subsection (1), the measures which a Special Court may take under that sub-section may include— (a) the holding of the proceedings at a protected place; (b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public; (c) the issuing of any direction for securing that the identity and addresses of the witnesses are not disclosed. (3) Any person who contravenes any direction issued under sub-section (2) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees. 33. Where, after taking cognizance of any offence, a Special Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it has taken cognizance of the offence. 34. (1) Where a Special Court is satisfied, suo motu or upon a complaint or a police report that a person is likely to commit a scheduled offence in any communally disturbed area, it may, by order in writing, direct such person to remove himself beyond the limit of such area, by such route and within such time as may be specified in the order, and not to return to that area from which he was directed to remove himself for such period, not exceeding six months, as may be specified in the order. (2) The Special Court shall, along with the order under sub-section (1), communicate to the person directed under that sub-section the grounds on which such order has been made. (3) The Special Court may revoke or modify the order made under sub-section (1), for the reasons to be recorded in writing, on the representation made by the person against whom such order has been made or by any other person on his behalf within thirty days from the date of the order. 35. (1) If a person to whom a direction has been issued under section 34 to remove himself from any area— (a) fails to remove himself as directed; or (b) having so removed himself enters such area within the period specified in the order, otherwise than with the permission in writing
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of the Special Court under sub-section (2), the Special Court may cause him to be arrested and removed in police custody to such place outside such area as the Special Court may specify. (2) The Special Court may, by order in writing, permit any person in respect of whom an order under section 34 has been made, to return to the area from which he was directed to remove himself for such temporary period and subject to such conditions as may be specified in such order and may require him to execute a bond with or without surety for the due observation of the conditions imposed. (3) The Special Court may at any time revoke any such permission. (4) Any person who, with such permission, returns to the area from which he was directed to remove himself shall observe the conditions imposed, and at the expiry of the temporary period for which he was permitted to return, or on the revocation of such permission before the expiry of such temporary period, shall remove himself outside such area and shall not return thereto within the unimpaired portion specified under section 34 without a fresh permission. (5) If a person fails to observe any of the conditions imposed or to remove himself accordingly or having so removed himself enters or returns to such area without fresh permission the Special Court may cause him to be arrested and removed in the police custody to such place outside such area as the Special Court may specify. 36. (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days. 37. Where any area ceases to be a communally disturbed area and no cases are pending before a Special Court or an Additional Special Court established in relation to such communally disturbed area, the State Government, may, by notification, abolish such Special Court or Additional Special Court, as the case may be.
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CHAPTER VII INSTITUTIONAL ARRANGEMENTS FOR RELIEF AND REHABILITATION 38. Every State Government shall, by notification, establish a Council to be known as State Communal Disturbance Relief and Rehabilitation Council. 39. The State Council shall consist of the following members, namely:— (a) the Chief Secretary of the State—Chairperson, ex officio; (b) the Director General of Police of the State—Member, ex officio; (c) the Secretary of the Department entrusted with Relief and Rehabilitation work in the State Government—Member, ex officio; (d) the Secretary of the Department of Finance in the State Government—Member, ex officio; (e) the Secretary of the Department of Home in the State Government— Member, ex officio; (f ) the Secretary to the Department of Social Welfare dealing with Tribal Welfare or Minorities Welfare or Women and Child Development in the State Government—Member, ex officio; (g) three persons to be nominated by the State Government to represent individuals or private voluntary organisations engaged in the work relating to promotion of communal harmony or providing relief to the victims of communal violence—Members; (h) not less than five persons to be nominated by the State Government in such a manner that all important religious groups in the State are represented in the State Council—Members; (i) an officer not below the level of Joint Secretary to the State Government to be nominated by the State Government—Member-Secretary, ex officio; (j) the term of Members appointed under clauses (g) and (h) shall be such as may be prescribed by the State Government. 40. (1) The State Council shall have the responsibility of planning relief, including immediate relief and rehabilitation measures and coordination and monitoring the implementation of such measures and issue suitable directions for their implementation may be required. (2) Without prejudice to the generality of the provision of sub-section (1), the State Council shall—
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(a) advise the State Government in matters relating to relief and rehabilitation of victims of communal violence including drawing up of guidelines for the assessment of compensation including grant of immediate or interim compensation which shall not be less than twenty per cent of the full rates of compensation in respect of the losses suffered by an individual in communal violence in respect of– (i) loss of, or damage to, homes and belongings; (ii) loss of life and injuries sustained; (iii) destruction of, or damage to, business and the loss of means of livelihood; (iv) impact of sexual assaults or abuse on women; (b) issue suitable guidelines for setting-up of relief camps for victims of communal violence, which shall provide for the following: (i) arrangements for providing security at such camps; (ii) appropriate shelter for winter, monsoon or summer seasons; (iii) food, drinking water, toilet and bathing facilities; (iv) health services, certification of injuries at the camp itself and issuance of medical cards with a validity of six months for purchase of free medicine, psychosocial support like trauma counselling; (v) issue of temporary ration cards valid for a specific period; (c) establish a system of single window to complete all administrative formalities in relation to providing quick relief and rehabilitation to the victims of communal violence including making available ration cards or other identity cards; (d) certify loss or damage of educational or other certificates or ownership or other documents in respect of the victims of communal violence; and facilitate the students of the area affected by communal violence to appear for any examination and to provide security for the purpose; (e) establish centres for rehabilitating the children of victims of communal violence; ( f ) establish a single window clearance scheme for speedy disposal of insurance claims and for providing soft loans through financial institutions or measures relating to re-scheduling of loans and payments of interest in cases of victims of communal violence in consultation with the financial institutions; (g) facilitate the efforts of other organisations who may come forward to help the victims in all manner feasible.
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(h) recommend welfare measures to be adopted and implemented by the appropriate Government with a view to ameliorating the conditions of victims of communal violence; (i) draw suitable guidelines and issue directions for funding the restoration and repair of the places of worship damaged or destroyed during the communal violence, in consultation with and consensus of the members of the affected community; (j) formulate a comprehensive and affirmative scheme for welfare of victims of communal violence and devise a programme for implementing such schemes with the approval of the appropriate Government and implement the scheme. (k) activate the functioning of the district communal harmony committee; (l) maintain comprehensive data bank relating to the socio and economic development of victims of communal violence; (m) report to the appropriate Government the inadequacies or shortcomings in meeting with the situation and also on the remedial measures; and (n) perform such other functions as may be incidental or ancillary thereto as may be assigned by the appropriate Government from time to time. (3) While performing the functions under this section, the State Council shall follow such procedure as may be prescribed. 41. (1) The State Council shall prepare a plan for every State to be called the State communal harmony plan for promotion of communal harmony and prevention of communal violence, hereinafter called the State Plan, and recommend the same to the State Government for adoption. (2) The State Plan shall be prepared providing for— (i) the measures to be adopted for prevention or mitigation of communal violence including the constitution of District Level Peace Committees; (ii) the capacity-building and preparedness of measures to be taken to deal with communal violence including a Riot Prevention Scheme at the district and sub-district level. (3) The State Government shall adopt the State Plan after such modification as considered necessary. (4) The State Government shall cause the State Plan and also any advice, recommendation and guidelines issued under section 40 to be laid on the table of the State Legislature:
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Provided that where the State Government does not accept any of the recommendations of the State Council under section 40 or under this section, it shall expressly state the reasons for not accepting the recommendation and submit it along with the Action Taken Report and cause the same to be laid on the table of the State Legislature as soon as may be while it is in session and where the State Legislature is not in session within fifteen days from the date of commencement of its session. (5) The State Plan shall be reviewed and updated every two years. (6) The State Government shall make appropriate provisions for financing the activities to be carried out under the State Plan. 42. (1) The State Government shall, by notification, establish a District Communal Disturbance Relief and Rehabilitation Council in respect of each district in the State. (2) The District Council shall consist of such number of members, not exceeding ten, as may be prescribed by the State Government, and unless the rules otherwise provides, it shall consist of the following members, namely: (a) the Collector or District Magistrate or Deputy Commissioner, as the case may be, of the district who shall be the Chairperson— ex officio; (b) the Superintendent of Police of the District—Member, ex officio; (c) the Chief Medical Officer of the District—Member, ex officio; (d) such other district level officers of the Departments of Social Welfare, Tribal Welfare, Minority Welfare, Women and Child Development or such other Departments as may be prescribed by the State Government—Members, ex officio; (e) two persons representing the Private Voluntary Organisations to be nominated by the State Government—Members; ( f ) not less than five persons to be nominated in such a manner that all important religious groups in the district are represented in the District Council—Members; (g) the terms and conditions of appointment of Members under clauses (e) and ( f ) shall be such as may be prescribed by the State Government. 43. The District Council shall meet as and when necessary and at such time and place as the Chairperson may think fit.
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44. (1) The District Council shall act as the district level coordinating and implementing body for relief and rehabilitation of victims of communal violence and take all measures for the purpose in accordance with the guidelines laid down by the National Council and the State Council including, (a) assessment of compensation in respect of the losses suffered by an individual in communal violence in respect of— (i) loss of life and injuries sustained; (ii) loss of, or damage to, homes, shops and such other structures and belongings; (iii) destruction of, or damage to, business and the loss of means of livelihood; (iv) impact of sexual assaults or abuse on women; (b) setting-up of relief camps for victims of communal violence including— (i) arrangements for providing security at such camps; (ii) appropriate shelter for winter, monsoon or summer seasons; (iii) food, drinking water, toilet and bathing facilities; (iv) health services, certification of injuries at the camp itself and issuance of medical cards with a validity of six months for purchase of free medicine, psychosocial support like trauma counselling; and (v) temporary ration cards valid for a specific period. (2) The District Council shall prepare a District Plan for Promotion of Communal Harmony and Prevention of communal violence and recommend the same to the State Council. (3) The District Council shall periodically review the implementation of the orders passed by any Court for award of compensation to victims of communal violence under the provisions of this Act and submit an annual report to the State Council.
CHAPTER VIII NATIONAL COUNCIL 45. (1) The Central Government shall, by notification, constitute, with effect from such date as it may specify in such notification, a council to be known as the National Communal Disturbance Relief
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and Rehabilitation Council, consisting of not more than eleven members, to exercise the powers conferred on, and to perform the functions assigned to it by or under this Act. (2) The National Council shall consist of the following, namely: (i) the Secretary to the Government of India, Ministry of Home Affairs—Member, ex officio; (ii) the Secretary to the Government of India, Ministry of Defence— Member, ex officio; (iii) the Secretary to the Government of India in the Ministry of Finance—Member, ex officio; (iv) four persons to be nominated by the Central Government representing Minority and weaker sections of the society—Members; (v) four persons nominated by the Central Government representing other sections of the society who have been striving to maintain the communal harmony—Members. (3) The Central Government shall appoint one of the Members of the National Council as its Chairperson. 46. (1) Every Member of the National Council (other than the ex officio Members) shall hold office for a term of four years from the date of their appointment. (2) The travelling and other allowance payable to the Members of the National Council (other than the ex officio Members) shall be such as may be prescribed by the Central Government. 47. (1) The National Council shall recommend to the appropriate Government as to— (a) how the victims of the communal violence should be helped and what kind of relief could be given to them; (b) how the victims of the communal violence shall be rehabilitated; (c) the kind of compensation to be given to the victims of the communal violence. (2) The National Council shall advice the State Government as to the assistance to be given to the victims of communal violence. (3) The National Council shall also perform such other act, which may help to control and contain communal violence and help to give relief and rehabilitation and compensation to the victims of communal violence. (4) It shall be the duty of the National Council to visit the areas affected by the communal violence as soon the information of
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occurrence of such violence is received and to send a report of the situation prevailing in such areas along with its recommendations to the Central Government. 48. The National Council shall, from time to time, submit reports to the Central Government recommending the steps required to be taken to deal with the situation giving rights to communal violence.
FUNDS
FOR
CHAPTER IX RELIEF AND REHABILITATION
49. (1) Every State Government shall establish a Fund to be called the State Communal Disturbance Relief and Rehabilitation Fund and there shall be credited thereto— (a) all moneys received from the Central Government; (b) all moneys received from the State Government; (c) all moneys received by way of gifts or donations from a public sector undertaking or a local authority or an individual or a private voluntary organization for all or any of the purposes of this Act; (d) amounts received as aid from the international organisations or organizations in India, where necessary, in terms of the existing regulations governing such aid, for the rehabilitation or welfare of victims of communal violence. (2) The Fund shall be applied for the following purposes, namely: (a) for the purposes of grants for relief and rehabilitation as provided for under sections 40 and 42; (b) for meeting the expenses for exercising or performing other powers and functions of the State Council under section 40; and (c) for such other purposes as may be prescribed. (3) The State Council shall submit an annual report to the National Council to review the implementation of the orders passed by the courts with regard to awarding of compensation to victims of communal violence. 50. (1) Every State Government shall, by notification, make a scheme for providing funds for the purpose of grant of immediate compensation to the victims or their dependents in the event of loss
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of life or injury, as the case may be, or to those who have suffered loss or damage to property or loss of means of livelihood or as a result of an offence under the provisions of this Act. (2) The Scheme shall be administered by the District Council. 51. Every State Government shall establish a Fund to be called the Victims Assistance Fund in each district and placed the same at the disposal of the District Council and there shall be credited thereto— (a) all monies received from the State Government; (b) all monies received by way of gifts or donations from a public or private sector undertakings or a local authority or an individual or a private voluntary organisation for any or all the purposes of this Act. 52. The District Councils in a State shall function under the overall supervision and directions of the State Council.
CHAPTER X COMPENSATION TO VICTIMS 53. (1) Whenever a Special Court convicts a person for an offence punishable under this Act, it may, by its sentence, also pass an order that the offender shall make such monetary compensation as may be specified therein to the person mentioned in sub-section (5) for any loss or damage arising from such offence: Provided that no such compensation shall be awarded to a person who is involved in any offence committed under the Indian Penal Code as specified in the schedule. (2) The amount of compensation shall be such as is determined by the Special Court and be equitable, having regard to the provisions of sub-section (4). (3) An order under sub-section (1) may be made in addition to any other punishment to which the person convicted is sentenced or where the offence is punishable with fine only, or with imprisonment for a period not exceeding three months, such order may be in lieu of any other punishment. (4) Before passing any order under sub-section (1) the Special Court shall take into consideration the nature of the offence, the motive
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therefore, the economic status of the offender and the person in whose favour such order is made and all other relevant factors. (5) The compensation awarded under sub-section (1) may be directed to be paid— (i) to any person who has incurred expenses in prosecution or defraying any other expenses properly incurred; (ii) to any person for any loss, damage or injury caused by the offence, when the compensation therefore is, in the opinion of the Special Court, recoverable by such person in a civil court; (iii) in the case of a conviction for any offence for having caused the death of another person or of having abetted the commission of such offence to the person who are, under the Fatal Accidents Act, 1855, entitled to recover damages from the person sentenced, for the loss resulting to them from such death; (iv) in the case of a conviction for any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, robbery, dacoity, extortion or of having dishonestly received or retained, or having voluntarily assisted in disposing off stolen property knowing or having reason to believe the same to be stolen to any bona fide purchaser of such property for the loss of the same, if such property is restored to the possession of the person entitled thereto. (6) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section. 54. (1) The District Council shall entertain claims by or on behalf of persons affected by Communal Violence and the District Council shall decide the quantum of immediate compensation to be awarded to the victim or his dependents, as the case may be, after due enquiry within a period of one month from the date of the claim. (2) The amount of compensation shall not be less than twenty per cent of the full rate of compensation as prescribed under each category of cases. (3) The compensation shall be disbursed to the victim after adjusting any amount of assistance he might have received under any other scheme of the State Government for grant of relief or compensation. (4) The assistance from the District Fund may not be given to those victims or to the legal heirs if the victim is involved in the Commission of any offence under the provisions of this Act.
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CHAPTER XI
SPECIAL POWERS OF THE CENTRAL GOVERNMENT TO DEAL WITH COMMUNAL VIOLENCE IN CERTAIN CASES 55. (1) Whenever the Central Government is of the opinion that one or more scheduled offences are being committed in any area within a State by any person or group of persons in such manner and on such a scale which involves the use of criminal force or violence against the members of any group, caste or community resulting in death or destruction of property and such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities and there is an imminent threat to the secular fabric, unity, integrity or internal security of India which requires that immediate steps shall be taken by the State Government concerned, it shall— (a) draw the attention of the State Government to the prevailing situation in that area; and (b) direct the State Government to take all immediate measures to suppress such violence or the use of criminal force within such time as may be specified in the direction. (2) The State Government shall take appropriate action to prevent and control communal violence on the issue of a direction under sub-section (1). (3) Where the Central Government is of opinion that the directions issued under subsection (2) are not followed, it may take such action as is necessary including— (a) the issue of a notification declaring any area within a State as a “communally disturbed area”; (b) the deployment of armed forces, to prevent and control communal violence, on a request having been received from the State Government to do so. (4) Where it is decided to deploy armed forces under sub-section (3), the Central Government or the State Government may constitute an authority to be known as Unified Command for the purpose of co-ordinating and monitoring the role and responsibilities of the forces of the Union and States and for giving appropriate directions to such forces.
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(5) The forces deployed under sub-section (3) shall act under the control and as per the directions of the District Magistrate or any officer nominated by the State Government or the Unified Command. (6) Every notification issued by the Central Government under clause (a) of subsection (3) shall be laid before each House of Parliament. 56. (1) A notification under section 55 shall specify the period for which the area shall remain so notified: Provided that the period specified under such notification shall not, in the first instance, exceed thirty days: Provided further that the Central Government may extend the said period, by notification, if in its opinion the area continues to be a communally disturbed area: Provided also that the total period during which an area may be noti-fied as a communally disturbed area shall not exceed a total continuous period of sixty days. (2) Where the Central Government is satisfied that such disturbance of public peace and tranquillity as is referred to in sub-section (1) no longer persists in such area, it shall amend the notification issued in respect of that area to limit the period specified therein [whether originally or by amendment under sub-section (1)].
POWERS, DUTIES
CHAPTER XII AND IMMUNITIES
OF THE
OFFICERS
57. (1) No suit, prosecution or other legal proceedings shall lie against the State Government, the Central Government or any officer or authority of such Government or any other person or any member of the State Council, National Council or District Council for anything which is in good faith done or intended to be done under this Act or the rules made thereunder. (2) It shall be the duty of the State Government or Central Government, as the case may be, to provide required legal aid to an officer or authority facing a suit or legal proceedings in terms of sub-section (1). (3) Any officer or authority of the State Government or the Central Government who suffers an injury or is killed in the discharge of his duty while acting under the provisions of this Act shall be given special compensation or ex gratia relief at double the rate of such compensation
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or ex gratia relief as is admissible in respect of other Government servants on duty in terms of the existing rules or guidelines framed by the State Government or the Central Government, as the case may be.
CHAPTER XIII MISCELLANEOUS 58. While providing compensation and relief to the victims of communal violence, (a) there shall be no discrimination on the ground of sex, caste, community, descent or religion; and (b) uniformity of assistance irrespective of caste, community or religion is maintained. 59. Save as otherwise provided, the provisions of this Act shall be in addition to, and not in derogation of, any other laws for the time being in force except to the extent the provisions of other laws are inconsistent with the provisions of this Act. 60. (1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the travelling and other allowances payable to the Members of the National Council under sub-section (1) of section 46; (b) any other matter which is required to be, or may be, prescribed by the Central Government. (3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
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61. (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the term of members appointed under clauses (g) and (h) of section 39; (b) the procedure to be followed by the State Council while performing its functions under sub-section (2) of section 40; (c) the number of members of the District Council and such other Departments which may be represented by the district level officers in the District Council under clause (d) of sub-section (2) of section 42; (d) the terms and conditions of appointment of members under clauses (e) and (f ) of sub-section (2) of section 42; (e) the other purposes for which the State Fund shall be applied under clause (c) of sub-section (2) of section 49; (f ) any other matter which is required to be, or may be prescribed. (3) Every notification, rule and Scheme made under this Act shall be laid, as soon as may be after it is made, before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House. 62. In the Representation of the People Act, 1951, in section 8, in sub-section (2), after clause (c), the following clause shall be inserted, namely: “(ca) Any provision of the Communal Violence (Prevention, Control and Rehabilitation of Victims) Act, 2005”.
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7 The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 No. 44 of 1999 (30th December 1999) An Act to provide for the constitution of a body at the national level for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:
CHAPTER 1 PRELIMINARY Title 1. This Act may be called the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. 2. It extends to the whole of India except the State of Jammu and Kashmir.
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In This Act, Unless the Context Otherwise Requires— (a) “autism” means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour; (b) “Board” means Board of trustees constituted under section 3; (c) “cerebral palsy” means a group of non-progressive condition of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development; (d) “Chairperson” means the Chairperson of the Board appointed under clause (a) sub-section (4) of section 3; (e) “Chief Executive Officer” means the Chief Executive Officer appointed under sub-section (1) of section 8; (f ) “Member” means a Member of the Board and includes the Chairperson; (g) “Mental retardation” means a condition of arrested or incomplete development of mind of person, which is specially characterized by sub-normality of intelligence; (h) “Multiple disabilities” means a combination of two or more disabilities as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; (i) “Notification” means notification published in the Official Gazette; (j) “Persons with disability” means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability; (k) “Prescribed” means prescribed by rules made under this Act; (l) “Professional” means a person who is having special expertise in a field, which would promote the welfare of persons with disability; (m) “Registered organization” means an association of persons with disability or an association of parents of persons with disability or a voluntary, as the case may be, registered under section 12; (n) “Regulation” means the regulations made by the Board under this Act;
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(o) “Severe disability” means disability with eighty per cent or more of one or more of multiple disabilities; (p) “Trust” means the National Trust for Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disability constituted under sub section (1) of section 3.
CHAPTER 2 THE NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITY 1.
2.
3.
4.
With effect from such date as the Central Government may, by notification, appointment, there shall be constituted, for the purpose of this Act, a body by the name of the National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities which shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provision of this Act, to acquire, hold and dispose of property, both movable and immovable, and both movable and immovable, and contact, and shall, by the said name, sure or be sued. The general superintendence, direction and management of the affairs and business of the Trust shall vest in a Board which may exercise all powers and do all acts and things which may be exercised or done by the Trust. The head office of the Trust shall be at New Delhi and the Board may, with the previous approval of the Central Government, establish offices at other places in India. The Board shall consist of— (a) a chairperson to be appointed by the Central Government from amongst, the persons having expertise and experience in the field of autism, cerebral palsy, mental retardation and multiple disability; (b) nine persons to be appointed in accordance with such procedure as may be prescribed from amongst the registered organization out of which three members each shall be
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from voluntary organization, association of persons with autism, cerebral palsy, mental retardation and multiple disability and from associations of persons with disability, members: Provided that initial appointment under this clause shall be made by the Central Government by nomination; (c) eight persons not be below the rank of joint Secretary to the Government of India nominated by the Govt. represent the Ministries or Departments of Social Justice and Empowerment, Women and Child Development, Health and Family Welfare, Finance, Labour, Education, Urban Affairs and Employment and Rural Employment and Poverty Alleviation, Members, ex-officio; (d) three persons to be nominated by the Board representing the associations of trade, commerce and industry engaged in philanthropic activities, members; (e) the Chief Executive Officer, who shall be of the rank of Joint Secretary to the Government of India, Member Secretary, ex-officio; 5.
The Board may associate with itself, in such manner and for such purpose as may be determined by regulation, any person whose assistance or advice it may desire for carrying for any other out the objects of the Trust: Provided that such person shall have a right to take part in the discussion relevant to that purpose but shall not have right to vote at a meeting of the Board and shall not be a member for any other purpose: Provide further that the maximum number of persons so associated shall not exceed eight and so far as possible the person so associated shall belong to the registered organization or from the professional.
1.
The Chairperson or a Member shall hold office for a term of three years from the date of his appointment or until his successor shall have been duly appointed, whichever is longer: Provide that no person shall hold office as the Chairperson or other Member after he has attained the age of sixty-five years.
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2. The conditions of service of the Chairperson and other Members shall be such as may be prescribed. 3. A casual vacancy in the Board shall be filled in accordance with the provisions of section 3 and a person appointed shall hold office only for the remainder of the term for which the member, in whose place he was appointed, would have held that office. 4. Before appointing any person as the Chairperson or a Member, the Central Government shall satisfy itself that the person does not and will not, have any such financial or other interest as is likely to affect prejudicially his function as such member. 5. No Member of the Board shall be a beneficiary of the Trust during the period such Member holds office. 6. The Board shall meet at least once in three months at such time and place as may be determined by the Board by regulations and shall observe such rules of procedure in the transaction of business at a meeting as may be prescribed. 7. The Chairperson, if for any reason is unable to attend the meeting of the Board, by any Member elected by the Members present from amongst themselves at the meeting, shall preside at the meeting. 8. All question which come up before any meeting of the Board shall be decided by a majority of votes of the Members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the person presenting shall have a second or casting vote. 1. The Chairperson may resign his office by writing under his hand addressed to the Central Government: Provide that the Chairperson shall continue in office until the appointment of his successor is made by the Central Government. 2. A Member may resign from office by writing under his hand addressed to the Chairperson. No Person shall be a Member if he— (a) is, or become, of unsound mind or is so declared by a competent court; or
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(b) is, or has been, convicted of an offence, which in the opinion of the Central Government, involves moral turpitude; or (c) is, or at any time has been, adjudicated as an insolvent. If a Member— (a) becomes subject to any of the disqualification mentioned in section 6; or (b) is, without obtaining leave of absence, absent from three consecutive meeting of the Board; or (c) tenders his resignation under section 5, his seat shall thereupon become vacant. 1. The Central Government shall appoint the Chief Executive Officer to exercise such powers and performs such duties under the direction of the Board as may be prescribed or as may be delegated to him by the Chairperson. 2. The Board shall, with the previous approval of the Central Government, appoint such other officers and employees as it considers necessary to carry out the objectives of the Trust. 3. The salary and allowances payable to, and the other terms and conditions of service of, the Chief Executive Officer, other officers and employees of the Trust shall be such as may be determined by regulations. No act or proceeding of the Board shall be called in question on the ground merely of the existence of any vacancy, in or any defect in the constitution of, the Board.
CHAPTER 3 OBJECTS OF THE TRUSTS The Objects of the Trust shall be— (a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong;
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(b) to strengthen facilities to provide support to persons with disability to live within their own families; (c) to extend support to registered organization to provide need based services during the period of crises in the family of persons with disability; (d) to deal with problems of persons with disability who do not have family support; (e) to promote measures for the care and protraction of persons with disability in the event of death of their parent or guardian; (f ) to evolve procedure for the appointment of guardians and trustees for persons with disability requiring such protection; (g) to facilitate the realization of equal opportunities, protection of right and full participation of persons with disability; and (h) to do any other act which is incidental to the aforesaid object.
POWERS
CHAPTER 4 DUTIES OF
AND
THE
BOARD
The Board shall— (a) receive from the Central Government a one-time contribution of rupees one hundred crores for a corpus, the income where of shall be utilized to provide for adequate standard of living for persons with disability; (b) receive bequest of movable property any person for the benefit of the person with disability in general and for furtherance of the objectives of the Trust in particular: Provide that it shall be obligatory on the part of the Board to make arrangement for adequate standard of living for the beneficiary named in the bequest, if any and to utilize the property bequeathed for any other purpose for which the bequest has been made: Provide further that the Board shall not be under any obligation to utilize the entire amount mentioned in the bequest for the exclusive benefit of the persons with disability named as beneficiary in the bequest;
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(c) receive from the Central Government such sums as may be considered necessary in each financial year for providing financial assistance to registered organization for carrying out any approved Programme. For the purpose of Sub-section (1), the Expression “Approved Programme” Means (a) any Programme which promote independent living in the community for persons with disability by(i) creating a conducive environment in the community; (ii) counseling and training of family members of persons with disability; (iii) setting up of adult training units, individual and group homes; (b) any programme which promotes respite care, foster family care or day care service for persons with disability; (c) Setting up residential hostels and residential homes for persons with disability; (d) Development of self-help group persons with disability to pursue the realization of their rights; (e) setting up of local committee to grant approval for guardianship and (f ) such other programmes which promote the objective of the Trust. While earmarking funds for the purpose of clause: (c) of sub-section (2), preference shall be given to woman with disability or to persons with severe disability and to senior citizen with disability. Explanation—For the purpose of this sub-section, the expression;— (a) “Persons with severe disability” shall have the same meaning as is assigned to it under sub-section (4) of section 56 of the persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995; (b) “Senior citizen” means a person who is above the age of sixtyfive years or more.
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CHAPTER 5 PROCEDURE FOR REGISTRATION 1. Any association of person with disability, or any association of parents of persons with disability or a voluntary organization whose main object is promotion of welfare of persons with disability may make an application for registration to the Board. 2. An application for registration shall be made in such form and manner and at such place as the Board may by regulation provide and shall contain such particulars and accompanied with such documents and such fees may be provided in the regulation. 3. On receipt of application for registration, the Board may make such inquires as it thinks fit in respect of genuineness of the application and correctness of any particulars thereon. 4. Upon receipt of such application the Board shall either grant registration to the applicant or reject such application for reasons to be recorded in writing: Provided that where registration has been refused to the application, the said applicant may again make an application for registration after removing defects, if any in its previous application.
CHAPTER 6 LOCAL LEVEL COMMITTEES 1. The Board shall constitute a local level committee for such area as may be specified by it from time to time. 2. A local committee shall consist of: (a) an officer of the civil service of the Union or of the State, not below the rank of a District Magistrate or a District Commissioner of a district; (b) a representative of a registered organization; and (c) a person with disability as defined in clause (t) of section 2 of the persons with disabilities (Equal Opportunities, Protection of rights and Full Participation) Act, 1995
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3. A local level committee shall continue to work for a period of three years from the date of its constitution or till such time it is reconstituted by the Board 4. A local level committee shall meet at least once in every three months or at such interval as may be necessary. 1. A parent of a person with disability or his relative may make as application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability. 2. Any registered organization may make an application in the prescribed form to the local level committee for appointment of a guardian for a person with disability: Provide that no such application shall be entertained by the local level committee, unless the consent of the guardian of the disabled person is also obtained. 3. While considering the application for appointment of a guardian, the local level committee shall consider:(a) whether the person with disability needs a guardian; (b) the purpose for which the guardianship is required for person with disability. 4. The local level committee shall receive, process and decide applications received under sub-section (1) and (2), in such manner as may be determined by regulation: Provide that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligation which are to be fulfilled by the guardian. 5. The local committee shall send to the Board the particulars received by it and orders passed thereon at such interval as may be determined by regulations. Every person appointed as a guardian of a person with disability under this chapter shall, wherever required, either have the care of such person of disability and his property or be responsible for the maintenance of the person with disability. 1. Every person appointed as a guardian under section 14 shall, within a period of six months from the date of his appointment, deliver to the authority which appointed him, an inventory of immovable property belonging to the person with disability and all assets and other movable property received on behalf
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of the person with disability, together with a statement of all claims due to and all debts and liabilities due by such person with disability. 2. Every guardian shall also furnish to the said appointing authority within a period of three months at the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him. 1. Whenever a parent or a relative of a person with disability or a registered organization find that the guardian is: (a) abusing or neglecting a person with disability; or (b) misappropriating or neglecting the property, it may in accordance with the prescribed procedure apply to the committee for the removal of such guardian. 2. Upon receiving such application the committee may, if it is satisfied that there is a ground for removal and for reasons to be recorded in writing, remove such guardian and appoint a new guardian in his place or if such a guardian is not available make such other arrangement as may be necessary for the care and protection of person with disability. 3. Any person removed under sub-section (2) shall be bound to deliver the charge of all property of the person with disability to the new guardian, and to account for all moneys received or disbursed by him. Explanation—For the Purpose of this chapter, the expression “relative” includes any person related to the person with disability by blood, marriage or adoption.
CHAPTER 7 ACCOUNTABILITY AND MONITORING 1. The books and documents in the procession of the Board shall be open to inspection by any registered organization. 2. Any registered organization can submit a written requisition to the Board the access of any book or document maintained by the Board.
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3. The Board shall frame such regulations as it thinks necessary for allowing the access of any books or document to a registered organization. The Board shall determine by regulations the procedure for evaluating the prefunding status of registered organization seeking financial assistance from it and such regulations may also provide for the guidelines for monitoring and evaluating the activities of the registered organizations who are receiving financial assistance from the Trust. 1. The Board shall in each year hold an annual general meeting of registered organizations, and not, more than six months shall elapse between the date of one annual general meeting and that of the next. 2. A notice of the annual general meeting along with a statement of accounts and records of its activities during the preceding year be sent by the Board to every registered organization at such time as may be determined by regulations. 3. The quorum for such meeting shall be such number of persons of the registered organization as may be determined by regulation.
CHAPTER 8 FINANCE, ACCOUNTS AND AUDIT The Central Government may, after due appropriation made by parliament by law in this behalf, make to the Trust a one-time contribution of rupees one hundred crores for a corpus, the income whereof may be utilized the objects of the Trust under this Act. 1. There shall be constitute a fund to be called the National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple disabilities Fund and there shall be credited thereto(a) all money received from the Central government; (b) all moneys received by the trust by way of grants, gifts, donation, benefaction, bequests or transfers;
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(c) all moneys received by the Trust in any other manner or from any other source. 2. All moneys belonging to the fund shall be deposited in such banks or invested in such manner as the Board may, subjects to approval of the Central Government, decide. 3. The funds shall be applied towards meeting the administrative and other expenses of the Trust including expenses incurred in the exercise of its powers and performance of duties by the Board in relation to any of its activities under section 10 or for anything relatable thereto. The Board shall prepare, in such form and at such time in each financial year as may be prescribed, the budget for the next financial year showing the estimated receipt and expenditure of the Trust and shall forward the same to the Central Government, 1. The Board shall maintain proper accounts and other relevant records and prepare an annual statement of accounts of the Trust including the income and expenditure accounts in such form as the Central Government may prescribe and in accordance with such general direction as may be issued by that Government in constitution with the Comptroller and Auditor-General of India. 2. The accounts of the Trust shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him and any expenditure incurred by him in connection with such audit shall be payable by the Board of the Comptroller and Auditor-General of India. 3. The Comptroller and Auditor-General of India and by other person appointed by him in connection with the audit of the accounts of the Trust shall have the same rights, privileges and authority in connection with such audit as the Comptroller and Auditor-General of India generally has in connection with the audit of the Government accounts, and in particular, shall have the right to demand and production of books of accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Trust. 4. The accounts of the Trust as certified by the Comptroller, and Auditor-General of India or any other person appointed by him in this behalf, together with the audit report thereon,
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shall be forwarded annually to the Central Government, and that Government shall cause the same to be laid before each House of Parliament. The Board shall prepare every year, in such form within such time as may be prescribed an annual report giving a true and full accounts of its activities during the previous year and copies thereof shall be forwarded to the Central Government and that Government shall cause the same to be laid before each House of Parliament. All orders and decisions of the Board and instrument issued in the name of the Trust shall be authenticated by the signature of the Chairperson, the Chief Executive Officer or any other officer authorized by the Chairperson, in this behalf. The Board shall furnish to the Central Government such reports, returns and other information as that Government may require time to time.
CHAPTER 9
MISCELLANEOUS 1. Without prejudice to the foregoing provisions of this Act, the Board shall, in exercise of its power or the performance of its duties under this Act, be bound by such direction on questions of policy as the Central Government may give in writing it from time to time: Provided that the Board shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub-section. 2. The decision of the Central Government whether a question is one if policy or not shall be final. 1. If the Central Government on the complaint of a registered organization or otherwise has reason to believe that the Board is unable to perform or has persistently made default in the performance of the duties imposed on it, the Central Government may issue notice to the Board asking why it should not be superseded: Provide that no order superseding the Board shall be made by the Central Government, unless a
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notice affording reasonable opportunity to the Board has been given in writing that why it should not be superseded. 2. The Central Government after recording reasons in writing and by issuing a notification in the Official Gazette supersede the Board for a period of not more than six months: provided that on the expiration of the period of super session Central Government may reconstitute the Board, in accordance with section 3. 3. Upon the publication of the notification under sub-section (2),(a) all the members of the Board shall, not withstanding that their term of office had not expired as on the date of super session, vacate their office as such members; (b) all the powers and duties which may, buy or under the provision of this Act, be exercised or performed by or on behalf of the trust shall, during the period of supersession, be exercised and performed by such person as the Central Government may direct. 4. On the expiration of the period of super session specified in the notification issued under sub-section (2), the Central Government may:(a) extend the period of super session for such further period as it may consider necessary so that the total period of supersession does not exceed more than six months; or (b) reconstitute the Board in the manner provided in section 3. Notwithstanding anything contained in the Income-tax Act, 1961, or any other law for the time being in force relating to tax on income, profit or gains, the Trust shall not be liable to pay income-tax or any other tax in respect of its income, profits or gains derived. No suit, prosecution or other legal proceeding shall lie against the Central Government or the Trust or any member of the Board or Chief Executive officer or any officer or other employee of the Trust or any other person authorized by the Board to perform duties under this Act for any loss or damage caused or likely to be caused by anything which is done in good faith. Explanation: For the purpose of this section, the expression “good faith” shall have the same meaning as is assigned to it in the Indian Penal Code.
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All Members, Chief Executive Officer, other officers and employees of the Trust shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servant within the meaning of section 21 of the Indian Penal Code. The Board may, by general or special order in writing, delegate to the Chairperson or any members or any officer of the Trust or any other person subject to such conditions and limitations, if any, as may be specified in the order such of its powers under this Act, (except the power to make regulations under section 35) as it may deem necessary. 1. The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. 2. In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:(a) the procedure in accordance with which the person representing registered organization shall be elected under clause (b) of sub-section (4) of section 3; (b) the condition of service of the Chairperson and Members under sub-section (2) of section 4; (c) the rules procedure in the transaction of business at meeting of the Board under sub-section (2) of section 14; (d) the powers and duties of Chief Executive Officer under sub-section (1) of section 8; (e) the form in which an application for guardianship may be made by a registered organization under sub-section (2) of section 23; (f ) the procedure in accordance with which a guardian may be removed under section 17; (g) the form in which, and the time within which, the budget of the trust shall be forwarded to the Central Government under section 23; (h) the form in which the annual statement of accounts shall be maintained under sub-section (1) of section 24; (i) the form in which, and the time within which, the annual reports shall be prepared and forwarded under section 25; (j) any other matter which is required to be, or may be, prescribed.
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The Board may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations consistent with this Act and rules generally to carry out the purpose of this Act. In particular, and without prejudice to the generality of the foregoing power, such regulation may provide for all or any of the following matters, namely: (a) the manner and purpose for which a person may be associated under sub-section (5) of section 3; (b) the time and place at which the Board shall meet under subsection (6) of section 4; (c) the terms and conditions of service of, Chief Executive Officer, other officer and employees of the Trust under sub-section (3) of section 8; (d) the form manner in which the application shall be made for registration under sub-section (2) of section 12 and the particulars which such application shall contain under that subsection; (e) the manner in which application for guardianship shall be received, proceed and decided by the local level committee under sub-section (4) of section 114; (f ) the particulars of application and orders passed thereon by the local level committee under sub-section (5) of section 14; (g) the procedure for evaluating the pre-funding status of the registered organization and framing of guidelines for monitoring and evaluating the activities of such registered organization under section 19; (h) the time within which notice for annual general meeting shall be sent and quorum for such meeting under sub-section (2) and (3) of section 20; and (i) any other matter which is required to be, or may be provided by regulation. Every rule and every regulation made under this Act shall be laid. As soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive session, and if, before the expiry of the session immediately following the
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session or successive session aforesaid, both House agree in making any modification, in the rule or regulation or both House agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
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8 The Right to Information Act, 2005 Ministry of Law and Justice (Legislative Department) New Delhi, the 21st June, 2005/Jyaistha 31, 1927 (Saka) The following Act of Parliament received the assent of the President on the 15th June, 2005, and is hereby published for general information: The Right to Information Acts, 2005 No. 22 of 2005 [15th June 2005]
An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to remote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India has established democratic Republic; AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
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AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:
CHAPTER I PRELIMINARY 1. (1) This Act may be called the Right to Information Act, 2005. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) The provisions of sub-section (1) of section 4, sub-sections (1) and (2) of section 5, sections 12, 13, 15,16, 24, 27 and 28 shall come into force at once, and the remaining provisions of this Act shall come into force on the one hundred and twentieth day of its enactment. 2. In this Act, unless the context otherwise requires, (a) “Appropriate Government” means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly— (i) by the Central Government or the Union territory administration, the Central Government; (ii) by the State Government, the State Government; (b) “Central Information Commission” means the Central Information Commission constituted under sub-section (1) of section 12; (c) “Central Public Information Officer” means the Central Public Information Officer designated under sub-section (1) and includes a Central Assistant Public Information Officer designated as such under sub-section (2) of section 5; (d) “Chief Information Commissioner” and “Information Commissioner” mean the Chief Information Commissioner and Information Commissioner appointed under sub-section (3) of section 12; (e) “competent authority” means— (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such
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Assembly and the Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v) the administrator appointed under article 239 of the Constitution; (f ) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; (g) “prescribed” means prescribed by rules made under this Act by the appropriate Government or the competent authority, as the case may be; (h) “public authority” means any authority or body or institution of self-government established or constituted— (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government; (i) “record” includes— (a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device;
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(j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to— (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; (k) “State Information Commission” means the State Information Commission constituted under sub-section (1) of section 15; (l) “State Chief Information Commissioner” and “State Information Commissioner” mean the State Chief Information Commissioner and the State Information Commissioner appointed under sub-section (3) of section 15; (m) “State Public Information Officer” means the State Public Information Officer designated under sub-section (1) and includes a State Assistant Public Information Officer designated as such under sub-section (2) of section 5; (n) “third party” means a person other than the citizen making a request for information and includes a public authority.
RIGHT
CHAPTER II
TO INFORMATION AND OF
OBLIGATIONS
PUBLIC AUTHORITIES
3. Subject to the provisions of this Act, all citizens shall have the right to information. 4. (1) Every public authority shall— a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources,
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computerised and connected through a network all over the country on different systems so that access to such records is facilitated; b) publish within one hundred and twenty days from the enactment of this Act,— (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision-making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
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(xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed; and thereafter update these publications every year; c) publish all relevant facts while formulating important policies or announcing the decisions which affect public; d) provide reasons for its administrative or quasi-judicial decisions to affected persons. (2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of subsection (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. (3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public. (4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed. Explanation—For the purposes of sub-sections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority. 5. (1) Every public authority shall, within one hundred days of the enactment of this Act, designate as many officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. (2) Without prejudice to the provisions of sub-section (1), every public authority shall designate an officer, within one hundred days
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of the enactment of this Act, at each sub-divisional level or other subdistrict level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under subsection (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be: Provided that where an application for information or appeal is given to a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, a period of five days shall be added in computing the period for response specified under sub-section (1) of section 7. (3) Every Central Public Information Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information. (4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. (5) Any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be. 6. (1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to— (a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority; (b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her:
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Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing. (2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. (3) Where an application is made to a public authority requesting for an information, (i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this subsection shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. 7. (1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. (2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under subsection (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.
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(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving— (a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the dispatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section; (b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms. (4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection. (5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. (6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1). (7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under section 11.
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(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request, (i) the reasons for such rejection; (ii) the period within which an appeal against such rejection may be preferred; and (iii) the particulars of the appellate authority. (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. 8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders;
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(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. 9. Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State. 10. (1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from
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disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. (2) Where access is granted to a part of the record under subsection (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a notice to the applicant, informing— (a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided; (b) the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based; (c) the name and designation of the person giving the decision; (d) the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and (e) his or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access. 11. (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
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Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.
THE
CHAPTER III CENTRAL INFORMATION COMMISSION
12. (1) The Central Government shall, by notification in the Official Gazette, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act. (2) The Central Information Commission shall consist of— (a) the Chief Information Commissioner; and (b) such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary. (3) The Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of— (i) the Prime Minister, who shall be the Chairperson of the committee;
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(ii) the Leader of Opposition in the Lok Sabha; and (iii) a Union Cabinet Minister to be nominated by the Prime Minister. Explanation—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the House of the People has not been recognised as such, the Leader of the single largest group in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition. (4) The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act. (5) The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. (6) The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. (7) The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with the previous approval of the Central Government, establish offices at other places in India. 13. (1) The Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years. (2) Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner:
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Provided that every Information Commissioner shall, on vacating his office under this sub-section be eligible for appointment as the Chief Information Commissioner in the manner specified in subsection (3) of section 12: Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner. (3) The Chief Information Commissioner or an Information Commissioner shall before he enters upon his office make and subscribe before the President or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule. (4) The Chief Information Commissioner or an Information Commissioner may, at any time, by writing under his hand addressed to the President, resign from his office: Provided that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under section 14. (5) The salaries and allowances payable to and other terms and conditions of service of— (a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner; (b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service
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rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment. (6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed. 14. (1) Subject to the provisions of sub-section (3), the Chief Information Commissioner or any Information Commissioner shall be removed from his office only by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Chief Information Commissioner or any Information Commissioner, as the case may be, ought on such ground be removed. (2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Chief Information Commissioner or Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the President may by order remove from office the Chief Information Commissioner or any Information Commissioner if the Chief Information Commissioner or a Information Commissioner, as the case may be, (a) is adjudged an insolvent; or (b) has been convicted of an offence which, in the opinion of the President, involves moral turpitude; or
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(c) engages during his term of office in any paid employment outside the duties of his office; or (d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or a Information Commissioner. (4) If the Chief Information Commissioner or a Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.
CHAPTER IV THE STATE INFORMATION COMMISSION 15. (1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the ......... (name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act. (2) The State Information Commission shall consist of— (a) the State Chief Information Commissioner, and (b) such number of State Information Commissioners, not exceeding ten, as may be deemed necessary. (3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of— (i) the Chief Minister, who shall be the Chairperson of the committee; (ii) the Leader of Opposition in the Legislative Assembly; and (iii) a Cabinet Minister to be nominated by the Chief Minister
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Explanation—For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of Opposition. (4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act. (5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. (6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. (7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish offices at other places in the State. 16. (1) The State Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years. (2) Every State Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner:
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Provided that every State Information Commissioner shall, on vacating his office under this sub-section, be eligible for appointment as the State Chief Information Commissioner in the manner specified in sub-section (3) of section 15: Provided further that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner. (3) The State Chief Information Commissioner or a State Information Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule. (4) The State Chief Information Commissioner or a State Information Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office: Provided that the State Chief Information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17. (5) The salaries and allowances payable to and other terms and conditions of service of— (a) the State Chief Information Commissioner shall be the same as that of an Election Commissioner; (b) the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government: Provided that if the State Chief Information Commissioner or a State Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Information Commissioner or a State Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity:
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Provided further that where the State Chief Information Commissioner or a State Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State Chief Information Commissioner or the State Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment. (6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed. 17. (1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed. (2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if
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a State Chief Information Commissioner or a State Information Commissioner, as the case may be,— (a) is adjudged an insolvent; or (b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or (c) engages during his term of office in any paid employment outside the duties of his office; or (d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner. (4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.
CHAPTER V
POWERS AND FUNCTIONS OF THE INFORMATION COMMISSIONS, APPEAL AND PENALTIES 18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,— (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information
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Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be; (b) who has been refused access to any information requested under this Act; (c) who has not been given a response to a request for information or access to information within the time limit specified under this Act; (d) who has been required to pay an amount of fee which he or she considers unreasonable; (e) who believes that he or she has been given incomplete, misleading or false information under this Act; and (f) in respect of any other matter relating to requesting or obtaining access to records under this Act. (2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof. (3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. (4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.
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19. (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party. (5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. (6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within
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such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. (7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. (8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to— (a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including— (i) by providing access to information, if so requested, in a particular form; (ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records; (v) by enhancing the provision of training on the right to information for its officials; (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4; (b) require the public authority to compensate the complainant for any loss or other detriment suffered; (c) impose any of the penalties provided under this Act; (d) reject the application. (9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority. (10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed. 20. (1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within
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the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. (2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.
CHAPTER VI MISCELLANEOUS 21. No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.
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22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 23. No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act. 24. (1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request. (2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule. (3) Every notification issued under sub-section (2) shall be laid before each House of Parliament. (4) Nothing contained in this Act shall apply to such intelligence and security organisation being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
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Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the State Information Commission and, notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request. (5) Every notification issued under sub-section (4) shall be laid before the State Legislature. 25. (1) The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government. (2) Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section. (3) Each report shall state in respect of the year to which the report relates,— (a) the number of requests made to each public authority; (b) the number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the number of times such provisions were invoked; (c) the number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals; (d) particulars of any disciplinary action taken against any officer in respect of the administration of this Act; (e) the amount of charges collected by each public authority under this Act; (f) any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act; (g) recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or
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other legislation or common law or any other matter relevant for operationalising the right to access information. (4) The Central Government or the State Government, as the case may be, may, as soon as practicable after the end of each year, cause a copy of the report of the Central Information Commission or the State Information Commission, as the case may be, referred to in subsection (1) to be laid before each House of Parliament or, as the case may be, before each House of the State Legislature, where there are two Houses, and where there is one House of the State Legislature before that House. (5) If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity. 26. (1) The appropriate Government may, to the extent of availability of financial and other resources,— (a) develop and organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated under this Act; (b) encourage public authorities to participate in the development and organisation of programmes referred to in clause (a) and to undertake such programmes themselves; (c) promote timely and effective dissemination of accurate information by public authorities about their activities; and (d) train Central Public Information Officers or State Public Information Officers, as the case may be, of public authorities and produce relevant training materials for use by the public authorities themselves. (2) The appropriate Government shall, within eighteen months from the commencement of this Act, compile in its official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right specified in this Act. (3) The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub-section (2) at regular intervals which shall, in particular and without prejudice to the generality of sub-section (2), include—
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(a) the objects of this Act; (b) the postal and street address, the phone and fax number and, if available, electronic mail address of the Central Public Information Officer or State Public Information Officer, as the case may be, of every public authority appointed under sub-section (1) of section 5; (c) the manner and the form in which request for access to an information shall be made to a Central Public Information Officer or State Public Information Officer, as the case may be; (d) the assistance available from and the duties of the Central Public Information Officer or State Public Information Officer, as the case may be, of a public authority under this Act; (e) the assistance available from the Central Information Commission or State Information Commission, as the case may be; (f) all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act including the manner of filing an appeal to the Commission; (g) the provisions providing for the voluntary disclosure of categories of records in accordance with section 4; (h) the notices regarding fees to be paid in relation to requests for access to an information; and (i) any additional regulations or circulars made or issued in relation to obtaining access to an information in accordance with this Act. (4) The appropriate Government must, if necessary, update and publish the guidelines at regular intervals. 27. (1) The appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (a) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4; (b) the fee payable under sub-section (1) of section 6; (c) the fee payable under sub-sections (1) and (5) of section 7; (d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under subsection (6) of section 13 and sub-section (6) of section 16; (e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case may be, in deciding the appeals under sub-section (10) of section 19; and
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(f ) any other matter which is required to be, or may be, prescribed. 28. (1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:— (i) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4; (ii) the fee payable under sub-section (1) of section 6; (iii) the fee payable under sub-section (1) of section 7; and (iv) any other matter which is required to be, or may be, prescribed 29. (1) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. (2) Every rule made under this Act by a State Government shall be laid, as soon as may be after it is notified, before the State Legislature. 30. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removal of the difficulty: Provided that no such order shall be made after the expiry of a period of two years from the date of the commencement of this Act. (2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament. 31. The Freedom of Information Act, 2002 is hereby repealed.
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9 The National Rehabilitation and Resettlement Policy, 2007 CHAPTER I 1. Policy Preamble 1.1 Provision of public facilities or infrastructure often requires the exercise of legal powers by the state under the principle of eminent domain for acquisition of private property, leading to involuntary displacement of people, depriving them of their land, livelihood and shelter; restricting their access to traditional resource base, and uprooting them from their socio-cultural environment. These have traumatic, psychological and socio-cultural consequences on the affected population which call for protecting their rights, in particular of the weaker sections of the society including members of the Scheduled Castes, Scheduled Tribes, marginal farmers and women. Involuntary displacement of people may be caused by other factors also. 1.2 There is imperative need to recognise rehabilitation and resettlement issues as intrinsic to the development process formulated with the active participation of the affected persons, rather than as externally-imposed requirements. Additional benefits beyond monetary compensation have to be provided to the families affected adversely by involuntary displacement. The plight of those who do
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not have legal or recognised rights over the land on which they are critically dependent for their subsistence is even worse. This calls for a broader concerted effort on the part of the planners to include in the displacement, rehabilitation and resettlement process framework not only those who directly lose land and other assets but also those who are affected by such acquisition of assets. The displacement process often poses problems that make it difficult for the affected persons to continue their earlier livelihood activities after resettlement. This requires a careful assessment of the economic disadvantages and social impact of displacement. There must also be a holistic effort aimed at improving the all round living standards of the affected people. 1.3 A National Policy on Resettlement and Rehabilitation for Project Affected Families was formulated in 2003, and it came into force w.e.f. February, 2004. Experience of implementation of this policy indicates that there are many issues addressed by the policy which need to be reviewed. There should be a clear perception, through a careful quantification of the costs and benefits that will accrue to society at large, of the desirability and justifiability of each project. The adverse impact on affected families—economic, environmental, social and cultural—needs to be assessed in a participatory and transparent manner. A national policy must apply to all projects where involuntary displacement takes place. 1.4 The aim should be to minimise large-scale displacement, as far as possible. Only the minimum area of land commensurate with the purpose of the project may be acquired. Also, as far as possible, projects may be set up on wasteland, degraded land or un-irrigated land. Acquisition of agricultural land for non-agricultural use in the project may be kept to the minimum; multi-cropped land may be avoided to the extent possible for such purposes, and acquisition of irrigated land, if unavoidable, may be kept to the minimum. Prior to initiating the acquisition of land for a project, the appropriate government should, inter alia, take into consideration the alternatives that will (i) minimise the displacement of people due to the acquisition of land for the project; (ii) minimise the total area of land to be acquired for the project; and (iii) minimise the acquisition of agricultural land for non-agricultural use in the project. The options assessment may be in terms of the alternative project plans, potentially suitable sites, technological choices available, or a combination of these. Suitable institutional mechanism should be developed and adopted by the appropriate Government for carrying out the task in a transparent manner.
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1.5 Where large numbers of families are affected, it must be mandatory to do social impact assessments and provide all required infrastructural facilities and amenities in the resettlement area. More particularly, where the Scheduled Tribes people are being displaced in sizeable numbers, a well thought out Tribal Development Plan must be put in place. 1.6 Furthermore, such a policy must specify clear timeframes within which the implementation of the rehabilitation package as well as utilization of the land shall be accomplished. Also, it should lay down an effective monitoring and grievance redressal mechanism. 1.7 It is acknowledged that many State Governments, Public Sector Undertakings or agencies, and other requiring bodies either have their own Rehabilitation and Resettlement (R&R) policies or are in the process of formulating them. The provisions of the National Rehabilitation and Resettlement Policy, 2007 (NRRP-2007) provide for the basic minimum requirements, and all projects leading to involuntary displacement of people must address the rehabilitation and resettlement issues comprehensively. The State Governments, Public Sector Undertakings or agencies, and other requiring bodies shall be at liberty to put in place greater benefit levels than those prescribed in the NRRP-2007. The principles of this policy may also apply to the rehabilitation and resettlement of persons involuntarily displaced permanently due to any other reason.
CHAPTER II 2. Objectives of the National Rehabilitation and Resettlement Policy 2.1 The objectives of the National Rehabilitation and Resettlement Policy are as follows: (a) to minimise displacement and to promote, as far as possible, non-displacing or least-displacing alternatives; (b) to ensure adequate rehabilitation package and expeditious’ implementation of the rehabilitation process with the active participation of the affected families;
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(c) to ensure that special care is taken for protecting the rights of the weaker sections of society, especially members of the Scheduled Castes and Scheduled Tribes, and to create obligations on the State for their treatment with concern and sensitivity; (d) to provide a better standard of living, making concerted efforts for providing sustainable income to the affected families; (e) to integrate rehabilitation concerns into the development planning and implementation process; and (f) where displacement is on account of land acquisition, to facilitate harmonious relationship between the requiring body and affected families through mutual cooperation.
CHAPTER III 3. Definitions 3.1 The definitions of various expressions used in this policy are as follows: (a) “Administrator for Rehabilitation and Resettlement” means an officer not below the rank of District Collector in a State, appointed for the purpose of rehabilitation and resettlement of affected persons; (b) “affected family” means: (i) a family whose primary place of residence or other property or source of livelihood is adversely affected by the acquisition of land for a project or involuntary displacement for any other reason; or (ii) any tenure holder, tenant, lessee or owner of other property, who on account of acquisition of land (including plot in the abadi or other property) in the affected area or otherwise, has been involuntarily displaced from such land or other property; or (iii) any agricultural or non-agricultural labourer, landless person (not having homestead land, agricultural land, or either homestead or agricultural land), rural artisan, small trader or self-employed person; who has been residing or engaged in any trade, business, occupation or vocation continuously for a period of not less than three years preceding the date of declaration of the affected area, and who has been deprived of earning his livelihood or alienated wholly or
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substantially from the main source of his trade, business, occupation or vocation because of the acquisition of land in the affected area or being involuntarily displaced for any other reason; (c) “affected area” means area of village or locality notified by the appropriate Government under paragraph 6.1 of this policy; (d) “agricultural labourer” means a person primarily resident in the affected area for a period of not less than three years immediately before the declaration of the affected area who does not hold any land in the affected area but who earns his livelihood principally by manual labour on agricultural land therein immediately before such declaration and who has been deprived of his livelihood; (e) “agricultural land ” includes lands being used for the purpose of— (i) agriculture or horticulture; (ii) dairy farming, poultry farming, pisciculture, breeding of livestock or nursery growing medicinal herbs; (iii) raising of crops, grass or garden produce; and (iv) land used by an agriculturist for the grazing of cattle, but does not include land used for cutting of wood only; (f ) “appropriate Government” means, (i) in relation to the acquisition of land for the purposes of the Union, the Central Government; (ii) in relation to a project which is executed by the Central Government agency or undertaking or by any other agency on the orders or directions of the Central Government, the Central Government; (iii) in relation to the acquisition of land for purposes other than (i) and (ii) above, the State Government; and (iv) in relation to the rehabilitation and resettlement of persons involuntarily displaced due to any other reason, the State Government; (g) ‘BPL family’: The below poverty line (BPL)families shall be those as defined by the Planning Commission of India from time to time and included in a BPL list for the time being in force; (h) “Commissioner for Rehabilitation and Resettlement” means the Commissioner for Rehabilitation and Resettlement appointed by the State Government not below the rank of Commissioner or of equivalent rank of that Government;
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(i) “DDP block” means a block identified under the Desert Development Programme of the Government of India; (j) “family” includes a person, his’ or her spouse, minor sons, unmarried daughters, minor brothers, unmarried sisters, father, mother and other relatives residing with him or her and dependent on him or her for their livelihood; and includes “nuclear family” consisting of a person, his or her spouse and minor children; (k) “holding” means the total land held by a person as an occupant or tenant or as both; (l) “khatedar” means a person whose name is included in the revenue records of the parcel of land under reference; (m) “land acquisition” or “acquisition of land ” means acquisition of land under the Land Acquisition Act, 1894 (1 of 1894), as amended from time to time, or any other law of the Union or a State for the time being in force; (n) “marginal farmer” means a cultivator with an un-irrigated land holding up to one hectare or irrigated land holding up to half hectare; (o) “non-agricultural labourer” means a person who is not an agricultural labourer but is primarily residing in the affected area for a period of not less than three years immediately before the declaration of the affected area and who does not hold any land under the affected area but who earns his livelihood principally by manual labour or as a rural artisan immediately before such declaration and who has been deprived of earning his livelihood principally by manual labour or as such artisan in the affected area; (p) “notification” means a notification published in the Gazette of India or, as the case may be the Gazette of a State; (q) “occupiers” means members of the Scheduled Tribes in possession of forest land prior to the 13th day of December, 2005; (r) “Ombudsman” means the person appointed under paragraph 8.3 of this policy for redressal of grievances; (s) “prescribed” means, unless otherwise specified, prescribed by guidelines or orders issued by the Central Government under this policy; (t) “project” means a project involving involuntary displacement of people, irrespective of the number of persons affected;
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(u) “requiring body” means a company, a body corporate, an institution, or any other organisation for whom land is to be acquired by the appropriate Government, and includes the appropriate Government if the acquisition of land is for such Government either for its own use or for subsequent transfer of such land in public interest to a company, a body corporate, an institution, or any other organization, as the case may be, under lease, license or through any other system of transfer of land; (v) “resettlement area” means any area so declared under paragraph 6.9 of this policy by the appropriate Government; (w) “small farmer” means a cultivator with an un-irrigated land holding up to two hectares or with an irrigated land holding up to one hectare, but more than the holding of a marginal farmer.
CHAPTER IV 4. Social Impact Assessment (SIA) of Projects 4.1 Whenever it is desired to undertake a new project or expansion of an existing project, which involves involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, the appropriate Government shall ensure that a Social Impact Assessment (SIA) study is carried out in the proposed affected areas in such manner as may be prescribed. 4.2.1 The above SIA report shall be prepared, in such proforma as may be prescribed, considering various alternatives, and using agencies accredited in the manner prescribed. 4.2.2 While undertaking a social impact assessment, the appropriate Government shall, inter alia, take into consideration the impact that the project will have on public and community properties, assets and infrastructure; particularly, roads, public transport, drainage, sanitation, sources of safe drinking water, sources of drinking water for cattle, community ponds, grazing land, plantations; public utilities, such as post offices, fair price shops, etc.; food storage godowns, electricity supply, health care facilities, schools and educational/training facilities,
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places of worship, land for traditional tribal institutions, burial and cremation grounds, etc. 4.2.3 The appropriate Government may specify that the ameliorative measures, which will need to be undertaken for addressing the said impact for a component, may not be less than what is provided in a scheme or programme, if any, of the Central Government or a State Government in operation in that area. 4.3.1Where it is required as per the provisions of any law, rules, regulations or guidelines to undertake environmental impact assessment also, the SIA study shall be carried out simultaneously with the Environmental Impact Assessment (EIA) study. 4.3.2 In cases where both EIA and SIA are required, the public hearing done in the project affected area for EIA shall also cover issues related to SIA. Such public hearing shall be organised by the appropriate Government. 4.3.3 Where there is no requirement for EIA, the SIA report shall be made available to the public through public hearing to be organised by the appropriate Government in the affected area. 4.4.1 The SIA report shall be examined by an independent multidisciplinary expert group constituted for the purpose by the ‘appropriate Government. Two non-official social science and rehabilitation experts, the Secretary/Secretaries of the department(s) concerned with the welfare of Scheduled Castes and Scheduled Tribes of the appropriate Government or his (their) representative(s), and a representative of the requiring body shall be nominated by the appropriate Government to serve on this expert group. 4.4.2 Where both EIA and SIA are required, a copy of the SIA report shall be made available to the agency prescribed in respect of environmental impact assessment by the Ministry of Environment and Forests, and a copy of the EIA report shall be shared with the expert group mentioned in paragraph 4.4.1. 4.5 The SIA clearance shall be accorded as per the procedure and within the time limits as may be prescribed. 4.6 The SIA clearance shall be mandatory for all projects involving involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, and the conditions laid down in the SIA clearance shall be duly followed by all concerned.
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4.7 The Ministry of Defence, in respect of projects involving emergency acquisition of minimum area of land in connection with national security, may be exempted from the provisions of this Chapter, with due institutional safeguards, as may be prescribed, for protecting the interests of the affected families and achieving the broad objectives of this policy.
CHAPTER V 5. Appointment of Administrator and Commissioner for Rehabilitation and Resettlement and their Powers and Functions 5.1 Where the appropriate Government is satisfied that there is likely to be involuntary displacement of large number of persons due to acquisition of land for any project or due to any other reason, it may; and where the appropriate Government is satisfied that there is likely to be involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution due to acquisition of land for any project or due to any other reason, it shall, appoint, by notification, by the State Government(s) concerned, in respect of that project, an officer not below the rank of District Collector of the State Government to be the Administrator for Rehabilitation and Resettlement (R&R): Provided that if the appropriate Government in respect of the project is the Central Government, such appointment shall be made in consultation with the Central Government: Provided further that in case of a project involving involuntary displacement of less than four hundred families en masse in plain areas, or less than two hundred families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, where the appropriate Government decides not to appoint an Administrator for Rehabilitation and Resettlement, adequate administrative arrangements shall be
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made by the appropriate Government for the rehabilitation and resettlement of the affected families as per this policy. 5.2 The Administrator for Rehabilitation and Resettlement shall be assisted by such officers and employees as the appropriate Government may provide. 5.3 Subject to the superintendence, directions and control of the appropriate Government and Commissioner for Rehabilitation and Resettlement, the Administrator for Rehabilitation and Resettlement shall take all measures for the rehabilitation and resettlement of the affected families. 5.4 The overall control and superintendence of the formulation, execution and monitoring of the rehabilitation and resettlement plan shall vest in the Administrator for Rehabilitation and Resettlement. 5.5 Subject to any general or special order of the appropriate Government, the Administrator for Rehabilitation and Resettlement shall perform the following functions and duties: (a) minimise displacement of people and identify non-displacing or least-displacing alternatives in consultation with the requiring body; (b) hold consultation with the affected families while preparing a rehabilitation and resettlement scheme or plan; (c) ensure that interests of the adversely affected persons of Scheduled Tribes and weaker sections are protected; (d) prepare a draft scheme or plan of rehabilitation and resettlement as required under Chapter VI of this policy; (e) prepare a budget including estimated expenditure of various components of acquisition of land, rehabilitation and resettlement activities or programmes in consultation with representatives of the affected families and the requiring body; (f ) arrange adequate land, as far as possible, for rehabilitation and resettlement of the affected families; (g) allot land and sanction the benefits to the affected families; (h) perform such other functions as the appropriate Government may, from time to time, by order in writing, assign. 5.6 The Administrator for Rehabilitation and Resettlement may, by order in writing, delegate such of the administrative powers conferred and duties imposed on him by or under this policy to any officer not below the rank of Tehsildar or equivalent.
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5.7 All officers and staff appointed by the appropriate Government under this policy shall be subordinate to the Administrator for Rehabilitation and Resettlement. 5.8 The State Government shall appoint an officer of the rank of Commissioner or of equivalent rank of that Government for rehabilitation and resettlement in respect of such cases to which this policy applies to be called the Commissioner for Rehabilitation and Resettlement. 5.9 For the purposes of this policy, the Administrator for Rehabilitation and Resettlement and other officers and employees appointed for the purposes of rehabilitation and resettlement of the affected families shall be subordinate to the Commissioner for Rehabilitation and Resettlement. 5.10 The Commissioner for Rehabilitation and Resettlement shall be responsible for supervising the formulation of rehabilitation and resettlement plans or schemes and proper implementation of such plans or schemes.
CHAPTER VI 6. Rehabilitation and Resettlement Plan The procedure mentioned in this chapter shall be followed for declaration of the affected area, carrying out survey and census of affected persons, assessment of government land available and land to be arranged for rehabilitation and resettlement, declaration of the resettlement area or areas, preparation of the draft rehabilitation and resettlement scheme or plan and its final publication. 6.1 Where the appropriate Government is of the opinion that there is likely to be involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution due to acquisition of land for any project or due to any other reason, it shall, declare, by notification in the Official Gazette, area of villages or localities as an affected area.
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6.2 Every declaration made under paragraph 6.1 of the policy shall be published in at least three daily newspapers, two of which shall be in the local vernacular, having circulation in villages or areas which are likely to be affected, and also by affixing a copy of the notification on the notice board of the concerned gram panchayats or municipalities and other prominent place or places in the affected area and the resettlement area, and/or by any other method as may be prescribed in this regard by the appropriate Government. 6.3 Once the declaration is made under paragraph 6.1 of the policy, the Administrator for Rehabilitation and Resettlement shall undertake a baseline survey and census for identification of the persons and families likely to be affected. 6.4 Every such survey shall contain the following village-wise information of the affected families: (a) members of the family who are permanently residing, engaged in any trade, business, occupation or vocation in the affected area; (b) families who are likely to lose, or have lost, their house, agricultural land, employment or are alienated wholly or substantially from the main source of their trade, business, occupation or vocation; (c) agricultural labourers and non-agricultural labourers; (d) families belonging to the Scheduled Caste or Scheduled Tribe categories; (e) vulnerable persons such as the disabled, destitute, orphans, widows, unmarried girls, abandoned women, or persons above fifty years of age; who are not provided or cannot immediately be provided with alternative livelihood, and who are not otherwise covered as part of a family; (f ) families that are landless (not having homestead land, agricultural land, or either homestead or agricultural land) and below poverty line, but residing continuously for a period of not less than three years in the affected area preceding the date of declaration of the affected area; and (g) Scheduled Tribes families who are or were having possession of forest lands in the affected area prior to the 13th day of December, 2005. 6.5 Every survey undertaken under paragraph 6.4 shall be completed expeditiously and within a period of ninety days from the date of declaration made under paragraph 6.1.
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6.6 On completion of the above surveyor on expiry of a period of ninety days, whichever is earlier, the Administrator for Rehabilitation and Resettlement shall, by notification, and also in such other manner so as to reach all persons likely to be affected, publish a draft of the details of the findings of the survey conducted by him and invite objections and suggestions from all persons likely to be affected thereby. This draft shall be made known locally by wide publicity in the affected area. 6.7 On the expiry of thirty days from the date of publication of the draft of the details of survey and after considering the objections and suggestions received by him in this behalf, the Administrator for Rehabilitation and Resettlement shall submit his recommendations thereon along with the details of the survey to the appropriate Government. 6.8 Within forty-five days from the date of receipt of the details of the survey and recommendations of the Administrator for Rehabilitation and Resettlement, the appropriate Government shall publish the final details of survey in the Official Gazette. 6.9 The appropriate Government shall, by notification, declare any area (or areas) as a resettlement area (or areas) for rehabilitation and resettlement of the affected families. 6.10 The Administrator for Rehabilitation and Resettlement shall ensure that the affected families may be settled, wherever possible, in a group or groups in such resettlement areas. However, it has to be ensured that the affected families may be resettled with the host community on the basis of equality and mutual understanding, consistent with the desire of each group to preserve its own identity and culture. 6.11 For the purposes of paragraph 6.9 above, the Administrator for Resettlement and Rehabilitation shall draw up a list of lands that may be available for rehabilitation and resettlement of the affected families. 6.12 The lands drawn up under paragraph 6.11 shall consist of: (a) land available or acquired for the project and earmarked for this purpose; (b) Government wastelands arid any other land vesting in the Government available for allotment to the affected families; (c) lands that may be available for purchase or acquisition for the purposes of rehabilitation and resettlement scheme or plan; or (d) a combination of one or more of the above.
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However, the Administrator for Rehabilitation and Resettlement should ensure that such acquisition of land does not lead to another set of physically displaced families. 6.13 The Administrator for Rehabilitation and Resettlement, on behalf of the appropriate Government, may either purchase land from any person through consent award and may enter into an agreement for this purpose, or approach the State Government concerned for acquisition of land for the purposes of rehabilitation and resettlement scheme or plan, keeping in view the, contents of paragraph 6.12(b)above. 6.14.1 After completion of baseline survey and census of the affected families and assessment of the requirement of land for resettlement, as mentioned in paragraphs 6.3 and 6.12, the Administrator for Rehabilitation and Resettlement shall prepare a draft scheme or plan for the rehabilitation and resettlement of the affected families after consultation with the representatives of the affected families including women and the representative of the requiring body. 6.14.2 The draft rehabilitation and resettlement scheme or plan shall contain the following particulars, namely: (a) the extent of land to be acquired for the project and the name(s) of the affected village(s); (b) a village-wise list of the affected persons, family-wise, and the extent and nature of land and immovable property owned or held in their possession in the affected area, and the extent and nature of such land and immovable property which they are likely to lose or have lost, indicating the survey numbers thereof; (c) a list of agricultural labourers in such area and the names of such persons whose livelihood depends on agricultural activities; (d) a list of persons who have lost or are likely to lose their employment or livelihood or who have been or likely to be alienated wholly or substantially from their main sources of trade, business, occupation or vocation consequent to the acquisition of land for the project or involuntary displacement due to any other cause; (e) a list of non-agricultural labourers, including artisans; (f ) a list of affected landless families, including those without homestead land and below poverty line families; (g) a list of vulnerable affected persons, as indicated at paragraph 6.4(e); (h) a list of occupiers, if any;
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(i) a list of public utilities and government buildings which are affected or likely to be affected; (j) details of public and community properties, assets and infrastructure; (k) a list of benefits and packages which are to be provided to the affected families; (l) details of the extent of land available in the resettlement area for resettling and for allotment of land to the affected families; (m) details of the amenities and infra structural facilities which are to be provided for resettlement; (n) the time schedule for shifting and resettling the displaced persons in the resettlement area or areas; and (o) such other particulars as the Administrator for Rehabilitation and Resettlement may consider necessary. 6.14.3 The draft scheme or plan may be made known locally by wide publicity in the affected area and the resettlement area (or areas) in such manner as may be prescribed by the appropriate Government. 6.15.1 The draft rehabilitation and resettlement scheme or plan shall also be discussed in gram sabhas in rural areas and in public hearings in urban and rural areas where gram sabhas don’t exist. 6.15.2 The consultation with the gram sabha or the panchayats at the appropriate level in the Scheduled Areas under’ Schedule V of the Constitution shall be in accordance with the provisions of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996). 6.15.3 In cases of involuntary displacement of two hundred or more Scheduled Tribes families from the Scheduled Areas, the concerned Tribes Advisory Councils may also be consulted. 6.16 While preparing a draft scheme or plan as specified in paragraph 6.14, the Administrator for Rehabilitation and Resettlement shall ensure that the entire estimated cost of the rehabilitation and resettlement scheme or plan forms an integral part of the cost of the project for which the land is being acquired. The entire expenditure on rehabilitation and resettlement benefits and other expenditure for rehabilitation and resettlement of the affected families are to be borne by the requiring body for which the land is being acquired. The Administrator for Rehabilitation and Resettlement shall ensure that the entire estimated cost of rehabilitation and resettlement benefits and
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other expenditure for rehabilitation and resettlement of the affected families is communicated to the requiring body for incorporation in the project cost. 6.17 The Administrator for Rehabilitation and Resettlement shall submit the draft scheme or plan for rehabilitation and resettlement to the appropriate Government for its approval. In case of a project involving land acquisition on behalf of a requiring body, it shall be the responsibility of the appropriate Government to obtain the consent of the requiring body, to ensure that the necessary approvals as required under this policy have been obtained, and to make sure that the requiring body has agreed to bear the entire cost of rehabilitation and resettlement benefits and other expenditure for rehabilitation and resettlement of the affected families as communicated by the Administrator for Rehabilitation and Resettlement, before approving it. 6.18 After approving the rehabilitation and resettlement scheme or plan, the appropriate Government shall publish the same in the Official Gazette. On final notification of the rehabilitation and resettlement scheme or plan, it shall come into force. 6.19 It shall be the responsibility of the requiring body to provide sufficient funds to the Administrator for Rehabilitation and Resettlement for proper implementation of the rehabilitation and resettlement scheme or plan. As soon as the rehabilitation and resettlement scheme or plan is finalized, the requiring body shall deposit one-third cost of the rehabilitation and resettlement scheme or plan with the Administrator for Rehabilitation and Resettlement. 6.20 The Administrator for Rehabilitation and Resettlement shall keep proper books of accounts and records of the funds placed at his disposal and submit periodic returns to the appropriate Government in this behalf. 6.21 In case of a project involving land acquisition on behalf of a requiring body, an exercise for fast-track updating of land records shall be undertaken concurrently with the land acquisition proceedings. Persons who have acquired any right prior to the date of issue of the notification under sub-section (1) of section 4 of the Land Acquisition Act, 1894 (or such notification under any other Act of the Union or a State for the time being in force under which land acquisition is being undertaken) as per the updated records shall also have right to proportionate compensation along with the original landowners referred to in the said notification.
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6.22 In case of a project involving land acquisition on behalf of a requiring body: (a) The compensation award shall be declared well in time before displacement of the affected families. Full payment of compensation as well as adequate progress in resettlement shall be ensured in advance of the actual displacement of the affected families. (b) The compensation award shall take into account the market value of the property being acquired, including the location-wise minimum price per unit area fixed (or to be fixed) by the respective State Government or UT Administration. (c) Conversion to the intended category of use of the land being acquired (for example, from agricultural to non-agricultural) shall be taken into account in advance of the acquisition, and the compensation award shall be determined as per the intended land use category. (d) The applicable conversion charges for the change in the land use category shall be paid by the requiring body, and no reduction shall be made in the compensation award on this account. 6.23 In case of a project involving land acquisition on behalf of a requiring body, and if the requiring body is a company authorized to issue shares and debentures, the affected families who are entitled to get compensation for the land or other property acquired, shall be given the option to take up to twenty per cent of the compensation amount due to them in the form of shares or debentures or both of the requiring body, as per the guidelines to be notified by the Central Government: Provided that the appropriate Government, at its discretion, may raise this proportion up to fifty per cent of the compensation amount. 6.24.1 Land compulsorily acquired for a project cannot be transferred to any other purpose except for a public purpose, and after obtaining the prior approval of the appropriate Government. 6.24.2 If land compulsorily acquired for a project or part thereof, remains unutilized for the project for a period of five years from the date of taking over the possession by the requiring body, the same shall revert to the possession and ownership of the appropriate Government without payment of any compensation or remuneration to the requiring body.
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6.25 Whenever any land acquired for a public purpose is transferred to an individual or organisation (whether in private sector, public sector or joint sector) for a consideration, eighty per cent of any net unearned income so accruing to the transferor, shall be shared amongst the persons from whom the lands were acquired or their heirs, in proportion to the value at which the lands were acquired. The fund shall be kept in a separate account which shall be administered in such manner as may be prescribed.
CHAPTER VII 7. Rehabilitation and Resettlement Benefits for the Affected Families 7.1 The rehabilitation and resettlement benefits shall be extended to all the affected families who are eligible as affected families on the date of publication of the declaration under paragraph 6.1, and any division of as sets in the family after the said date may not be taken into account. 7.2 Any affected family owning house and whose house has been acquired or lost, may be allotted free of cost house site to the extent of actual loss of area of the acquired house but not more than two hundred and fifty square metre of land in rural areas, or one hundred and fifty square metre of land in urban areas, as the case may be, for each nuclear family: Provided that, in urban areas, a house of up to one hundred square metre carpet area may be provided in lieu thereof. Such a house, if necessary, may be offered in a multi-storied building complex. 7.3 Each affected below poverty line family which is without home-stead land and which has been residing in the affected area continuously for a period of not less than three years preceding the date of declaration of the affected area and which has been involuntarily displaced from such area, shall be entitled to a house of minimum one hundred square metre carpet area in rural areas, or fifty square metre carpet area in urban areas (which may be offered, where applicable,
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in a multi-storied building complex), as the case may be, in the resettlement area: Provided that any such affected family which opts not to take the house offered, shall get a suitable one-time financial assistance for house construction, and the amount shall not be less than what is given under any programme of house construction by the Government of India. 7.4.1 Each affected family owning agricultural land in the affected area and whose entire land has been acquired or lost, may be allotted in the name of the khatedar(s) in the affected family, agricultural land or cultivable wasteland to the extent of actual land loss by the khatedar(s) in the affected family subject to a maximum of 9 hectare of irrigated land or two hectares of un-irrigated land or cultivable “wasteland, if Government land is available in the resettlement area. This benefit shall also be available to the affected families who have, as a consequence of the acquisition” or loss of land, been reduced to the status of marginal farmers. 7.4.2 In the case of irrigation or hydel projects, the affected families shall be given preference in allotment of land-for-land in the command area of the project, to the extent possible. Such lands may be consolidated, and plots of suitable sizes allotted to the affected families who could be settled there in groups. In case a family cannot be given land in the command area of the project or the family opts not to take land there, such a family may be given monetary compensation on replacement cost basis for their lands lost, for purchase of suitable land elsewhere. 7.4.3 In the case of irrigation or hydel projects, the State Governments may formulate suitable schemes for providing land to the affected families in the command areas of the projects by way of pooling of the lands that may be available or, otherwise, could be made available in the command areas of such projects. 7.5 (a) In the case of irrigation or hydel projects, fishing rights in the reservoirs shall be given to the affected families, if such rights were enjoyed by them in the affected area; (b) In other cases also, unless there are special reasons, fishing rights shall be given preferentially to the affected families. 7.6 In case of a project involving land acquisition on behalf of a requiring body, the stamp duty and other fees payable for registration
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of the land or house allotted to the affected families shall be borne by the requiring body. 7.7 The land or house allotted to the affected families under this policy shall be free from all encumbrances. 7.8 The land or house allotted to the affected families under this policy may be in the joint names of wife and husband of the affected family. 7.9.1 In case of allotment of wasteland or degraded land in lieu of the acquired land, each khatedar in the affected family shall get a one-time financial assistance of such amount as the appropriate Government may decide but not less than fifteen thousand rupees per hectare for land development. 7.9.2 In case of allotment of agricultural land in lieu of the acquired land, each khatedar in the affected family shall get a one-time financial assistance of such amount as the appropriate Government may decide but not less than ten thousand rupees, for agricultural production. 7.10 Each affected family that is displaced and has cattle, shall get financial assistance of such amount as the appropriate Government may decide but not less than fifteen thousand rupees, for construction of cattle shed. 7.11 Each affected family that is displaced shall get a one-time financial assistance of such amount as the appropriate Government may decide but not less than ten thousand rupees, for shifting of the family, building materials, belongings and cattle. 7.12 Each affected person who is a rural artisan, small trader or selfemployed person and who has been displaced shall get a one-time financial assistance of such amount as the appropriate Government may decide but not less than twenty-five thousand rupees, for construction of working shed or shop. 7.13.1 In case of a project involving land acquisition on behalf of a requiring body(a) the requiring body shall give preference to the affected families— at least one person per nuclear family—in providing employment in the project, subject to the availability of vacancies and suitability of the affected person for the employment; (b) wherever necessary, the requiring body shall arrange for training of the affected persons, so as to enable such persons to take on suitable jobs;
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(c) the requiring body shall offer scholarships and other skill development opportunities to the eligible persons from the affected families as per the criteria as may be fixed by the appropriate Government; (d) the requiring body shall give preference to the affected persons or their groups or cooperatives in the allotment of outsourced contracts, shops or other economic opportunities coming up in or around the project site; (e) and the requiring body shall give preference to willing landless labourers and unemployed affected persons while engaging labour in the project during the construction phase. 7.13.2 The affected persons shall be offered the necessary training facilities for development of entrepreneurship, technical and professional skills for self-employment. 7.14 In case of a project involving land acquisition on behalf of a requiring body, the affected families who have not been provided agricultural land or employment shall be entitled to a rehabilitation grant equivalent to seven hundred fifty days minimum agricultural wages or such other higher amount as may be prescribed by the appropriate Government: Provided that, if the requiring body is a company authorised to issue shares and debentures, such affected families shall be given the option of taking up to twenty per cent of their rehabilitation grant amount in the form of shares or debentures of the requiring body, in such manner as may be prescribed: Provided further that the appropriate Government may, at its discretion, raise this proportion up to fifty per cent of the rehabilitation grant amount. 7.15 In cases where the acquisition of agricultural land or involuntary displacement takes place on account of land development projects, in lieu of land-for-land or employment, such affected families would be given site(s) or apartment(s) within the development project, in proportion to the land lost, but subject to such limits as may be defined by the appropriate Government. 7.16 In case of a project involving land acquisition on behalf of a requiring body, each affected family which is involuntarily displaced shall get a monthly subsistence allowance equivalent to twenty-five
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days minimum agricultural wages per month for a period of one year from the date of displacement. 7.17 The project authorities shall, at their cost, arrange for annuity policies that will pay a pension for life to the vulnerable affected persons as indicated at paragraph 6.4(e), of such amount as may be prescribed by the appropriate Government subject to a minimum of five hundred rupees per month. 7.18 If land is acquired in cases of urgency, such as under section 17 of the Land Acquisition Act, 1894 or similar provision of any other Act of the Union or a State for the time being in force, each affected family which is displaced shall be provided with transit and temporary accommodation, pending rehabilitation and resettlement scheme or plan, in addition to the monthly subsistence allowance and other rehabilitation and resettlement benefits due to them under this policy. 7.19 In case of linear acquisitions, in projects relating to railway lines, highways, transmission lines, laying of pipelines and other such projects wherein only a narrow stretch of land is acquired for the purpose of the project or is utilised for right of way, each khatedar in the affected family shall be offered by the requiring body an ex-gratia payment of such amount as the appropriate Government may decide but not less than twenty thousand rupees, in addition to the compensation or any other benefits due under the Act or programme or scheme under which the land, house or other property is acquired: Provided that, if as a result of such land acquisition, the landholder becomes landless or is reduced to the status of a “small” or “marginal” farmer, other rehabilitation and resettlement benefits available under this policy shall also be extended to such affected family. 7.20 The affected families may be given the option to take a lumpsum amount in lieu of one or more of the benefits specified in paragraphs 7.2 to 7.19, the amount being determined by the appropriate Government after consultation with the requiring body. 7.21 Rehabilitation and resettlement benefits for project affected families belonging to the Scheduled Tribes and Scheduled Castes: 7.21.1 In case of a project involving land acquisition on behalf of a requiring body which involves involuntary displacement of two hundred or more Scheduled Tribes families, a Tribal Development
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Plan shall be prepared, in such form as may be prescribed, laying down the detailed procedure for settling land rights due but not settled and restoring titles of tribals on alienated land by undertaking a special drive together with land acquisition. The Plan shall also contain a programme for development of alternate fuel, fodder and non-timber forest produce (NTFP) resources on non-forest lands within a period of five years sufficient to meet requirements of tribal communities who are denied access to forests. 7.21.2 The concerned gram sabha or the panchayats at the appropriate level in the Scheduled Areas under Schedule V of the Constitution or as the case may be, Councils in the Schedule VI Areas shall be consulted in all cases of land acquisition in such areas including land acquisition in cases of urgency, before issue of a notification under the Land Acquisition Act, 1894 or any other Act of the Union or a State for the time being in force under which land acquisition is undertaken, and the consultation shall be in accordance with the provisions of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and other relevant laws. Further, in cases of involuntary displacement of two hundred or more Scheduled Tribes families from the Scheduled Areas, the concerned Tribes Advisory Councils (TACs) may also be consulted. 7.21.3 Each affected family of Scheduled Tribe followed by Scheduled Caste categories shall be given preference in allotment of land-for-land, if Government land is available in the resettlement area. 7.21.4 In case of land being acquired from members of the Scheduled Tribes, at least one-third of the compensation amount due shall be paid to the affected families at the outset as first installment and the rest at the time of taking over the possession of the land. 7.21.5 In case of a project involving land acquisition on behalf of a requiring body, each Scheduled Tribe affected family shall get an additional one-time financial assistance equivalent to five hundred days minimum agricultural wages for loss of customary rights or usages of forest produce. 7.21.6 The Scheduled Tribes affected families will be re-settled, as far as possible, in the same Schedule Area in a compact block, so that they can retain their ethnic, linguistic and cultural identity. Exceptions would be allowed only in rare cases where the requiring body in case of a project involving land acquisition, or the State Government in other cases of involuntary displacement, is unable to offer such land due to reasons beyond its control.
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7.21.7 The resettlement areas predominantly inhabited by the Scheduled Tribes shall get land free of cost for community and religious gatherings, to the extent decided by the appropriate Government. 7.21.8 In case of a project involving land acquisition on behalf of a requiring body, the Scheduled Tribes affected families resettled out of the district will get twenty-five per cent higher rehabilitation and resettlement benefits in monetary terms in respect of the items specified in paragraphs 7.9, 7.10, 7.11, and 7.12. 7.21.9 Any alienation of tribal lands in violation of the laws and regulations for the time being in force shall be treated, as null and void. In the case of acquisition of such lands, the rehabilitation and resettlement benefits would be available to the original tribal land-owners. 7.21.10 In the case of irrigation or hydel projects, the affected Scheduled Tribes, other traditional forest dwellers and the Scheduled Castes families having fishing rights in a river or pond or dam in the affected area shall be given fishing rights in the reservoir area of the irrigation or hydel projects. 7.21.11 The Scheduled Tribes and Scheduled Castes affected families enjoying reservation benefits in the affected area shall be entitled to get the reservation benefits at the resettlement area(s). 7.21.12 The affected Scheduled Tribes families, who were in possession of forest/lands in the affected area prior to the 13th day of December, 2005, shall also be eligible for the rehabilitation and resettlement benefits under this policy. 7.22 Amenities and infrastructural facilities to be provided at resettlement areas: 7.22.1 In all cases of involuntary displacement of four hundred families or more en masse in plain areas, or two hundred families or more en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, comprehensive infrastructural facilities and amenities notified by the appropriate Government shall be provided in the resettlement area(s). Such facilities and amenities shall, inter alia, include roads, public transport, drainage, sanitation, safe drinking water, drinking water for cattle, community ponds, grazing land, land for fodder, plantation (social forestry or agroforestry), Fair Price shops, panchayatghars, Cooperative Societies, Post Offices, seed-cum-fertilizer storage, irrigation, electricity, health centres, child and mother supplemental nutritional services, children’s playground, community centres,
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schools, institutional arrangements for training, places of worship, land for traditional tribal institutions, burial/cremation grounds, and security arrangements. 7.22.2 In cases of involuntary displacement of less than four hundred families en masse in plain areas, or less than two hundred families or more en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, all affected families shall be provided basic infrastructural facilities and amenities at the resettlement site(s) as per the norms specified by the appropriate Government. It would be desirable that provision of drinking water, electricity, schools, dispensaries, and access to the resettlement sites, amongst others, be included in the resettlement plan approved by the appropriate Government. 7.22.3 If relocation takes place in an existing settlement area, the same infrastructure shall also be extended to the host community. 7.22.4 While shifting the population of the affected area to the resettlement area, the Administrator for Rehabilitation and Resettlement shall, and as far as possible, ensure that: (a) In case the entire population of the village or area to be shifted belongs to a particular community, such population or families may, as far as possible be resettled en masse in a compact area, so that socio-cultural relations and social harmony amongst the shifted families are not disturbed. (b) In the case of resettlement of the Scheduled Caste affected families, it say, as far as possible, be ensured that such families are resettled in the areas close to the villages. 7.22.5 The appropriate Government shall ensure that a resettlement area forms part of a gram panchayat or municipality. 7.23 Indexation of rehabilitation grant and other benefits: The rehabilitation grant and other benefits expressed in monetary terms in this policy shall be indexed to the Consumer Price Index (CPI) with the first day of April following the date of coming into force of this policy as the reference date, and the same shall also be revised by the appropriate Government at suitable intervals. 7.24 Periphery Development: In case of a project involving land acquisition on behalf of a requiring body, the requiring body will be responsible for development of the
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defined geographic area on the periphery of the project site as decided by the appropriate Government, and will be required to contribute to the socioeconomic development of the areas contiguous to its area of operation. For this purpose, the requiring body will earmark a percentage of its net profit or, in case no profit is declared by the requiring body in a particular year, for that year, such minimum alternative amount as may be determined by the appropriate Government after consultation with the requiring body, to be spent within the specified zone. The requiring body will carry out the developmental activity within this zone in close coordination with the Commissioner for Rehabilitation and Resettlement. The State Governments will be free to frame their own rules and guidelines for this purpose.
CHAPTER VIII 8. Grievance Redressal Mechanism 8.1 Rehabilitation and Resettlement Committee at the Project Level: 8.1.1 For each project which involves involuntary displacement of four hundred or more families en masse in plain areas, or two hundred or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution, the appropriate Government shall constitute a Committee under the chairpersonship of the Administrator for Rehabilitation and Resettlement, where appointed, or some other senior Government official, where the Administrator for Rehabilitation and Resettlement is not appointed, to be called the Rehabilitation and Resettlement Committee, to monitor and review the progress of implementation of the scheme or plan of rehabilitation and resettlement of the affected families, and to carry out post-implementation social audits. 8.1.2 The Rehabilitation and Resettlement Committee constituted as above shall include, apart from officers of the appropriate Government, as one of its members: a representative of women residing in the affected area; a representative each of the Scheduled Castes and Scheduled Tribes residing in the affected area;
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a representative of a voluntary organisation; a representative of the lead bank; Chairperson(s) of the panchayats and municipalities located in the affected area, or their nominee(s); Members of Parliament and Members of Legislative Assembly of the area included in the affected area; the Land Acquisition Officer of the project; and a representative of the requiring body. 8.1.3 The procedure regulating the business of the Rehabilitation and Resettlement Committee, its meetings and other matters connected thereto shall be such as may be prescribed by the appropriate Government. 8.2 Rehabilitation and Resettlement Committee at the District Level: 8.2.1 In each district, the State Government shall constitute a standing Rehabilitation and Resettlement Committee under the chairpersonship of the District Collector or, as the case may be Deputy Commissioner of the district, to monitor and review the progress of rehabilitation and resettlement of the affected families in the district excluding those covered by the Rehabilitation and Resettlement Committees in the project level as prescribed in paragraph 8.1. 8.2.2 The composition, powers, functions and other matters relating to the functioning of the Rehabilitation and Resettlement Committee at the District Level shall be such as may be prescribed by the State Government. 8.3 Ombudsman: 8.3.1 An Ombudsman shall be appointed by the appropriate Government, in the manner as may be prescribed, for time-bound disposal of the grievances arising out of the matters covered by this policy. 8.3.2 Any affected person, if aggrieved, for not being offered the admissible rehabilitation and resettlement benefits as provided under this policy, may move an appropriate petition for redressal of his or her grievances to the Ombudsman concerned. 8.3.3 The form and manner in which and the time within which complaints may be made to the Ombudsman and disposed of shall be such as may be prescribed by the appropriate Government. 8.3.4 The Ombudsman shall have the power to consider and dispose of all complaints relating to rehabilitation and resettlement against the
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decision of the Administrator for Rehabilitation and Resettlement or Rehabilitation and Resettlement Committee and issue such directions to the requiring body of the Administrator for Rehabilitation and Resettlement (where appointed, or the other senior Government official appointed for rehabilitation and resettlement, where the Administrator for Rehabilitation and Resettlement is not appointed; or the District Collector/Deputy Commissioner, as the case may be) as he may deem proper for the redressal of such grievances relating to implementation of this policy. 8.3.5 In case of a project involving land acquisition on behalf of a requiring body, the disputes related to the compensation award for the land or other property acquired will be disposed of as per the provisions of the Land Acquisition Act, 1894 or any other Act of the Union or a State for the time being in force under which the acquisition of land is undertaken, and will be outside the purview of the functions of the Ombudsman. 8.4 Inter-State Project: 8.4.1 In case a project covers an area in more than one State or Union territory where the project affected families are or had been residing, or proposed to be resettled, the Central Government in the Ministry of Rural Development (Department of Land Resources) shall, in consultation with the concerned States or Union territories, as the case may be; appoint the Administrator for Rehabilitation and Resettlement, the Commissioner for Rehabilitation and Resettlement, a common Rehabilitation and Resettlement Committee, and the Ombudsman for the purposes of this policy. 8.4.2 The method of implementation of the rehabilitation and resettlement schemes or plans shall be mutually discussed by the State Governments and the Union territory Administrations, and the common scheme or plan shall be notified by the Administrator for Rehabilitation and Resettlement in the States or Union territories, as agreed to, in accordance with the procedure laid down under this policy. 8.4.3 If any difficulty arises in the implementation of the rehabilitation and resettlement schemes or plans, the matter shall be referred to the Central Government in the Ministry of Rural Development (Department of Land Resources) for its decision, and the decision of the Central Government shall be binding on the concerned States and Union territories.
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CHAPTER IX 9. Monitoring Mechanism 9.1 National Monitoring Committee: 9.1.1 The Central Government shall constitute a National Monitoring Committee, to be chaired by the Secretary, Department of Land Resources for reviewing and monitoring the progress of implementation of rehabilitation and resettlement schemes or plans relating to all cases to which this policy applies. The Committee will have the following or his nominee not below the rank of Joint Secretary as its members: Secretary, Ministry of Agriculture; Secretary, Ministry of Coal; Secretary, Ministry of Commerce; Secretary, Department of Industrial Policy and Promotion; Secretary, Ministry of Defence; Secretary, Ministry of Environment and Forests; Secretary, Ministry of Law and Justice; Secretary, Ministry of Mines; Secretary, Ministry of Panchayati Raj; Secretary, Planning Commission; Secretary, Ministry of Power; Secretary, Department of Road Transport and Highways; Secretary, Ministry of Railways/Chairman, Railway Board; Secretary, Ministry of Social Justice and Empowerment; Secretary, Ministry of Tribal Affairs; Secretary, Ministry of Urban Development; and Secretary, Ministry of Water Resources. Besides, in case of a project involving land acquisition on behalf of a requiring body, the Secretary of the concerned administrative Ministry or Department shall be invited as one of the members. Secretary of any other Ministry or Department, and independent expert(s) of eminence in the relevant field(s) may be made special invitee(s) to this Committee. 9.1.2 The duties and procedures of the National Monitoring Committee shall be such as may be prescribed. 9.2 National Monitoring Cell:
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9.2.1 The National Monitoring Committee shall be serviced by a National Monitoring Cell to be constituted by the Central Government for reviewing and monitoring the progress of implementation of rehabilitation and resettlement schemes or plans relating to all cases to which this policy applies. 9.2.2 The National Monitoring Cell constituted under this policy shall be headed by an officer not below the rank of Joint Secretary to the Government of India, and shall be suitably staffed for efficient functioning. 9.3 Information Sharing: 9.3.1 All information on displacement, rehabilitation and resettlement, with names of the affected persons and details of the rehabilitation and resettlement package, shall be placed in the public domain on the Internet as well as shared with the concerned gram sabhas, panchayats, etc. by the project authorities. 9.3.2 The States and Union territories shall provide all the relevant information on the matters covered by this policy to the National Monitoring Cell in a regular and timely manner, and also as and when required. 9.4 Internal Oversight: 9.4.1 For each major project covered by this policy, there shall be an Oversight Committee for rehabilitation and resettlement in the Ministry/Department concerned of the appropriate Government. 9.4.2 The composition, functions and procedures of this Committee shall be such as may be prescribed by the appropriate Government. 9.5 External Oversight: 9.5.1 A National Rehabilitation Commission shall be set up by the Central Government with the power to exercise external oversight over the rehabilitation and resettlement of affected families covered by this policy. 9.5.2 The composition, powers and the procedure of transaction of business of the National Rehabilitation Commission shall be such as may be prescribed. 9.6 Commencement: The National Rehabilitation and Resettlement Policy, 2007 shall come into effect from the date of its publication in the Gazette of India (Extraordinary).
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10 The Protection of Women from Domestic Violence Act, 2005 In exercise of the powers conferred by Section-37(1) of the “Protection of Women from Domestic Violence Act, 2005 (of 2005)” the Central Government hereby makes the following rules for carrying out the provisions of the Act. 1. Short title and commencement– (a) These rules may be called “The Protection of Women from Domestic Violence Rules, 2005”. (b) They shall come into force on the date of their publication in the official Gazette. 2. Definitions– In these rules unless the context otherwise requires– (a) “Act” means “The Protection of Women from Domestic Violence Act, 2005” (43 of 2005). (b) Government includes the Government of Union Territories, State and Central Government. 3. Qualifications and experience of a protection officer and the terms and conditions of service of the protection officers under Section 37 (2) (a) and (b) of the Act—the state government shall by notification nominate/appoint/re-designate all/any of the following persons as protection officer and notify the area or areas within which the protection officer shall exercise powers and perform the duties conferred upon him under the Act
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(i) The Protection Officer shall be an officer of the State Government not below the rank of Deputy Tehsildar or a block development officer or (ii) Any representative of a non-governmental organization or a representative of the service provider registered under the Act, may be appointed, on such terms and conditions as may be prescribed by the State Government, as a protection officer provided that such a person has been serving in the organization for at least 2 years and has been working in the area of empowerment of women. (iii) The terms and conditions of service of a Protection Officer may be such as may be prescribed by the State Government. (iv) Not less than one Protection Officer shall be appointed for the area of a judicial magistrate. The State Government may however appoint more than one Protection Officer having regard to the area and volume of work involved. (v) The state government shall provide the protection officer the necessary infrastructural facilities for the running of his office and the financial provisions for the same shall be made by the respective governments in the same manner, as for the office of the assistant public prosecutor, which shall include clerical, transport and other facilities and reimbursements for the performance of the duties as assigned to the Protection officer. (vi) For the effective implementation of the Act, the state government shall designate a Nodal Ministry to over see, supervise and monitor the effective implementation of the Act. 4. Form and manner of domestic incident report—a domestic incident report under section 37 (2) (c)–(a) On receipt of a complaint or information, the protection officer or a service provider shall record domestic incident report under section 9 (1) (b) or section 10 (2) (a) of the Act, in the form prescribed in FORM 1 of schedule I. (b) Such domestic incident report shall be signed by the aggrieved person or by any person giving such information (c) Information under Section 4 (1) of the Act shall be either conveyed orally or in writing to the Protection Officer. Oral information shall be reduced to writing. Every such information, whether given in writing or reduced
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to writing as aforesaid, shall be signed by the person giving it. A copy of the information as recorded under (c) shall be given forthwith, free of cost to the informant. (d) Copy of Domestic Incident Report shall be provided to the aggrieved person free of cost. Applications to the Magistrate— (1) Applications to the magistrate under sec 37 (2) (d) and sec 12 for protection, residence orders and other relief ’s as provided under the Act shall be made in the manner prescribed in FORM II of schedule I. (2) In case the person giving any information or aggrieved person is illiterate, the contents of the application shall be read over and explained to her, by the protection officer, bearing a thumb impression of the aggrieved person, and shall be forwarded to the concerned police station. (3) The applications under Section 12 of the Act shall be dealt with and the orders enforced in the manner prescribed under Section 125 of the Cr.PC. 6. Application under Section 9 (1) (d) for legal aid-application for legal aid and services shall be made in the manner prescribed in FORM III of schedule I 7. Other duties to be performed by the protection officer (1) The protection officer shall, in addition to the duties assigned to him under the Act: (a) Give the aggrieved person immediate and adequate notice of her rights and of the remedies and services available by ensuring that the information and the contents of the Act are adequately explained to the aggrieved person, in the manner prescribed in form IV of schedule I (b) Maintain a record and copies of the report or documents forwarded under Section 9, 12, 20, 21, 22, 23 or any other provisions of the Act or the rules. (c) Provide all possible assistance to the aggrieved person and the child to ensure that she is not victimized or pressurized as a consequence of reporting the incident of domestic violence. (d) Take any action necessary to provide for the safety of the aggrieved person and any family or household member. (e) Liaison between the aggrieved person(s), police, service provider in the manner prescribed under the Act and Rules.
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(f ) Maintain proper records of the service providers, medical facility shelter homes in the area. (g) The protection officer shall scrutinize the applications and maintain a list of the counselors which shall be made available to the Magistrate. (h) Action to be taken in cases of emergency—If the protection officer or a service provider receives a telephone call either from the aggrieved person or from any person who has reason to believe that an act of domestic violence is being or is likely to be committed and in such an emergency situation the protection officer or the service aggrieved person, in the manner prescribed in form IV of schedule I. (2) Duties to be performed on the orders of the court—The Protection Officer, when directed to do so, in writing, by the magistrate shall: (i) Conduct a home visit of the shared household premises and make preliminary enquiry if the court requires clarification, in regard to granting ex-parte interim relief to the complainant/aggrieved person under the Act and passes an order for such home visit. (ii) After making appropriate inquiry, file a report on the salary emoluments assets bank accounts or any other documents as may be directed by the court. (iii) Restore the possession of the personal effects including jewellery of the aggrieved person and the shared household to the aggrieved person. (iv) Assist the aggrieved person to regain custody of children or secure visitation rights under supervision as directed by the court. (v) Assist the court in enforcement of orders in the proceedings under the act in the manner directed by the magistrate, including orders under Section 12, 18, 19, 20, 21 or 23 in such manner as directed by the court. (vi) Take the assistance of the police in confiscating any weapon involved in the alleged domestic violence. (3) The protection officer shall also perform any other duties prescribed by the government or the magistrate from time to time. The magistrate may in addition to orders for effective relief in any cases, also issue general practice directions for better handling of the cases, to the Protection Officer within his jurisdiction.
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8. Registration of service providers—Under Section 37 (2) (g) read with Section 10 (1): (1) The service providers to be registered under Section 10 (1) of the Act shall apply for registration to the Protection Officer, as per the format in Form V in Schedule1, and the Protection Officer in whose area the service providers want to extend their facilities shall maintain the list of such registered service providers. (2) The service provider to be registered under Section 10 (i) of the Act shall possess the following minimum qualifications: (a) The service provider should have been rendering the kind of services it is offering under the act for at least two years before applying for registration under the act. (b) In case of service providers running a medical facility, or a psychiatric counseling centre, or a vocational training institution, the registering authority shall ensure that the applicant fulfils the requirements for running such a facility or the institution as prescribed by the regulatory bodies regulating the respective professions or institutions. (c) In case of Service Providers running shelter homes, or any other facility the registering authority shall inspect the shelter home, prepare a report and record a finding on the report, detailing that adequate space and other facility for the persons seeking shelter is available. (d) Fulfill all the requirements as prescribed in Form No V of schedule 1. (e) The protection officer shall maintain proper records by way of maintenance of registers duly indexed, containing the details of the service provider. 9. Means of service of notices under Section 13(1)—The notice/ summon for appearance under S-13(1) of the Act shall be as prescribed under the CrPC. (2) The Service of notice/summons shall be made as prescribed in chapter VI of the CrPC. (3) Any order, service of notice or summon shall entail the same consequences, as an order passed under Chapter VI of ‘The Code of Criminal Procedure, 1973’. The Declaration of Service by the
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Protection Officer under Section 13(2) of the Act, shall be made by countersigning the copy of the notice/summon along with the signatures of the person who received the summon/notice. 10. Counseling—a counselor appointed by the magistrate under section 14(1) shall possess the following qualifications and experience: (a) An order for appointment of counselor under Section 14(1) of the Act shall be made only after passing orders for interim relief under Section 12, 18, 19, 20, 21, 22 or 23 of the Act. (b) The factors warranting counseling shall include the factor that the respondent shall furnish an undertaking that he would refrain from causing such domestic violence as complained by the complainant and in appropriate cases an undertaking that he will not try to meet, or communicate in any manner through letter or telephone, e mail or through any medium except in the counseling proceedings before the counselor. (c) The counselor shall as far as possible be a woman, (d) Possessing any of the following qualifications/experience:(i) Any person who is related to anyone of the parties and not connected either directly or indirectly with the issue/dispute provided that both the aggrieved person and the respondent consent to appointment of such a person as a counselor; or at least 2 years experience of counselling in any Govt. or Non-Govt. organization; or (iii) Any legal practitioner having experience in handling cases relating to deprivation of women’s rights or with at least 2 years experience with the legal services authorities constituted under Legal Service Authorities Act, 1987. (e) The protection officer shall assist the magistrate in the appointment of a counselor. 11. Procedure to be followed by a counselor (a) The counselor shall work under the general supervision of the court and/or Protection Officer. (b) The counselor shall convene a meeting at a place convenient to/aggrieved woman/both the parties. (c) Shall assist the parties to reconciliation and shall obtain a written statement from the respondent that the incident of Domestic Violence
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shall not be repeated and in general strive to arrive at the understanding and redressal of aggrieved women’s grievances and reformulating the terms for settlement wherever required. (d) The respondent shall not be allowed to plead any justification for the alleged act of domestic violence in counseling. Any justification for the act of domestic violence by the respondent is not allowed to be a part of the counseling proceeding, should be made clear to the respondent, before the proceedings start. (e) The respondent shall furnish an undertaking to the respondent that he would refrain from causing such domestic violence as complained by the aggrieved person and in appropriate cases an undertaking that he will not try to meet, or communicate in any manner through letter or telephone, e-mail, or through any other medium except in the counseling proceedings before the counselor. (f ) If the aggrieved person so desires the counselor shall make efforts of arriving at a settlement of the matter. The limited scope of such efforts shall be to arrive at the understanding of the grievances of the aggrieved person and redressal of her grievances. The efforts shall focus on evolving remedies or measures for such redressal. The counselor shall strive to arrive at a settlement of the dispute by suggesting measures for redressal of grievances of the complainant by taking into account the measures or remedies suggested by the parties for counseling and reformulating the terms for the settlement wherever required. (g) The counselor shall not be bound by the provisions of the Evidence Act, 1872 or the Code of Civil Procedure, 1908, or the Code of Criminal Procedure, 1973, and his action shall be guided by the principles of fairness and justice and aimed at finding way to bring an end to domestic violence to the satisfaction of the aggrieved person. In making such an effort the counselor shall seek guidance from the wishes and the sensibilities of the aggrieved person. (h) The report of the counselor shall be submitted to the Magistrate for appropriate action. (i) On arriving at a settlement the counselor shall report the terms of the settlement of the parties, after explaining the terms to the parties in the language of the parties and getting it endorsed by the parties.
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The court may accept the terms, on being satisfied, about the efficacy of the solution, after a preliminary enquiry from the parties, recording reasons for such satisfaction, which may include undertaking by the respondents to refrain from repeating acts of domestic violence. The court shall on being so satisfied pass an order, recording the terms of the settlement or an order modifying the terms of the settlement on being so requested by the aggrieved person with the consent of the parties. (j) In cases, where a settlement cannot be arrived at in the counselor proceedings, the conciliator shall report the failure of such proceedings and the court shall proceed with the case under the Act. The record of proceedings shall not be deemed to be material on record in the case on the basis of which any inference may be drawn or an order may be passed. The court shall pass an order under Section 25 (2) of the Act, only after being satisfied that the application for such an order is not vitiated by force, fraud or coercion or any other factor. The reasons for such satisfaction shall be recorded in writing in the order, which may include any undertaking or surety given by the respondent. 12. Shelter and medical assistance to the aggrieved person: (a) If the aggrieved person so desires, the shelter home shall not disclose the identity of the aggrieved person in the shelter home or communicate the same to the person complained against. (b) The shelter home shall not refuse shelter to an aggrieved person under the Act, for her not having lodged a domestic incident report, prior to making request for shelter. 13. Medical facility: (a) The medical facility shall not refuse medical assistance to an aggrieved person under the Act, for her not having lodged a domestic incident report prior to making request for medical assistance or examination. (b) A copy of the medical examination report shall be provided to the aggrieved person by the medical facility free of cost. Breach of protection orders(a) An aggrieved person may report a breach of protection order to the Protection Officer. The report shall be in writing by the informant
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and duly signed by her. The Protection Officer shall forward a copy of such complaint with a copy of the protection order of which a breach is alleged to the concerned magistrate for appropriate orders. (b) When charges are framed under Section 31 of the Act and offences under Section-498A Indian Penal Code, 1860, or any other offence not summarily triable, the court may separate the proceedings for such offences to be tried in the manner prescribed under Code of Criminal Procedure and proceed to summarily try the offence of the breach of Protection Order under S-31 of the Act, in accordance with the provisions of chapter XXI of the Code of Criminal Procedure, 1973. (c) The provisions of Code of Criminal Procedure, 1973, regarding arrest, compelling appearance, summary trial, sentence and conviction shall apply to any offence under Section 31 of the Act. (d) Any resistance to the enforcement of the orders of the court under the Act by the respondent or any other person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order covered under Section 31 (1) of the Act. (e) Each breach of protection order shall be a separate offence warranting separate charges under the Act. (f ) Without prejudice to the provisions of the Criminal Procedure Code, 1973, a breach of the protection order under Section 31 (1) of the Act, may immediately be reported to the local police station and shall be dealt with as a cognizable offence as provided under Section 31 of the Act. (g) While enlarging the person on bail arrested under the Act, the court may impose the following conditions to protect the aggrieved person and to ensure the presence of the accused before the court, which may include: (i) An order restraining the accused from threatening to commit or committing an act of domestic violence. (ii) An order preventing the accused from harassing, telephoning or making any contact with the aggrieved person. (iii) An order directing the accused to vacate and stay away from the residence of the aggrieved person or any place she is likely to visit.
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(iv) An order prohibiting the possession or use of firearm or any other dangerous weapon. (v) Any other order required for protection, safety and adequate relief to the aggrieved person. (vi) Violation of conditions of bail shall attract the issuance of a Non-Bailable Warrant and immediate arrest of the accused.
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Gulamiya Ab Hum Nahi Bajeibo
SECTION III
Justice: Law and Beyond
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Introduction
S
ocial justice is an arena that is partly covered by law; the rest is covered by social and political ideas and practices. Ethical ideas about honour, right, respect, autonomy, claim, share, revenge and shame also play a significant role in determining mores of justice. A sense of entitlements has a role to play too. Justice also produces a variety of forms—from socio-economic, to redistribution of wealth, the form of due process, subjective experiences of justice and as distinct from these experiences the objective tests of justice. In this context, one has to note the parts played by social movements and social mobilisations in determining the popular concepts of justice. Understanding the nebulous concept of the state of social justice in the country, new ideas and questions come to the fore and shed light on how collective struggles for justice go on in this country with or without the help of law. Faced with the challenge of socio-economic inequality the Indian state tries to answer it by initiating legislations with the assistance of the rule of law. It seeks to achieve economic justice without any violent conflict. The claim of the Indian state to be a welfare state is an important notion to ponder and analyse as to how far it has been successful in its welfare goals. The state however has often time and again come up with some ‘enlightened’ laws, which has addressed the need of the marginalised section of the society. Yet, increasing privatisation of basic facilities like health and primary education and the diminishing role of the state in all sectors has also meant the minimisation of the state’s welfare agenda in the face of increasing neoliberalisation. However, with the emergence of the several points of encounter with the ideology and the reality of capitalist accumulation, the state has woken up to the need of social justice. It seeks to achieve ‘justice for all’ its citizens. Constant endeavour has to be made to sustain individual freedom and liberty and yet subject it to regulation and control in the name of national security. In this zealousness on the part of the state, human security is the first casualty. The articles
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in this section consider a variety of subjects, including how rights and equality are a principle of distributive justice. These articles attempt to focus on and highlight some of the issues on how the state fails and where the laws limit the scope of social justice. When this happens the people always seek other means for achieving justice. The first article in this section is an incisive critique into the verdicts of the Supreme Court and other laws that regards the slum dwellers as encroachers and denies them social justice. There seems to be a tacit understanding between lawmakers and law preservers that these ‘encroachers’ are but an illegal entity. The second article focuses on the illegal coal mining that is taking place in eastern India. It urges the readers to rethink of what constitutes as ‘illegal’ when a large number of people’s livelihoods are dependent on these illegal mining activities. The third article selected for this section is a verdict on an HIV case by the Supreme Court of India, which was reproduced in Medhini, Laya, Dipika Jain and Colin Gonzalves edited volume on ‘HIV/AIDS and the Law’. The Supreme Court judgement was that the ‘Infringement of Suspended Right to Marry’ cannot be legally compensated by damages either in torts or common law. The judgement was passed by honourable judges Saghir Ahmed and BN Kirpal. The last article is a reproduction of an essay published by the CRG in its research paper series, Policies and Practices. It discusses the possibility of a new charter for the protection of minorities. It argues that the Constitution of India has a few very significant provisions relating to the protection of minorities and guarantees, including the guarantee of cultural and social diversities in the country. Very often the history of majoritarianism seems to suggest that the ideology of majoritarianism still exerts extensive and decisive influence on the conduct of state affairs in India. Usually the protection of minority rights has been granted in India in terms of protection of rights of individual citizens. The minorities remain excluded from the decision-making processes in Indian national life, particularly in various levels of administration. This situation of discrimination against minorities has aggravated after the tragic events of 11 September 2001, and certain minority communities have been facing systematic discrimination. Therefore, now more than ever, there is an urgent need to pursue the line of a new charter which deals with the question of minority protection. Despite the increasing recognition of the importance of the delivery of social justice through the means of law and legal services, problems
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will not fade away in the near future and there is a growing need to locate people who are most vulnerable to problems of injustice and place them in the map of social justice. Intensive research needs to be undertaken to see how such problems impact on people’s lives and communities, and to expose how such problems contribute to social exclusion. The aim is to try to find out possible ways to diminish such exclusions. To enable a positive change in this regard, rule of law is not a significant tool since rule of law can always be discarded once the government finds it inconvenient for its purposes. The case of the Narmada dam is a case in point where the judiciary and the government with tacit understanding of the few whom the dam will benefit, is ready to displace lakhs of people. These selected essays illustrate the complexity and range of philosophical issues raised by consideration of law and social justice that often needs to move beyond law.
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11 Illegality and Exclusion Law in the Lives of Slum Dwellers∗ USHA RAMANATHAN
T
he relationship of the Indian city with its dwellers has undergone heaving changes in the past two decades. Perceptions about the legality and legitimacy of the squatter, the pavement dweller, the ‘slum’ resident, the occupier of ‘unauthorised’ structures, the holder of land beyond the ceiling limit, the lease holder, and the permitted and surreptitious commercial and industrial user of land and properties have undergone significant change. The priorities of policy, and as dictated by the courts, have determined the status, and rights, of the city’s resident. A delineation of conflicting and contending interests—the pavement dweller versus the pedestrian, jhuggi jhompri clusters1 versus beautification of the city for its other residents, squatter settlements versus real estate and loss of opportunity costs, slums versus a clean city—has emerged. The decade of the 90s was witness to sweeping changes in the economic order. The valorisation of the market was accompanied by an emphasis on competitivenes in the use and exploitation of resources. A revision of the meaning of rights, including the content attributed to the fundamental rights as enlisted in the Indian Constitution, has ∗ This article has earlier been published in International Environmental Law Research Centre Working Paper 2004-02. Available at http://www.ielrc.org/content/wo402. pdf.
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been underway2 and the recognition of impoverishment, as of nonnegotiables, which had begun to insinuate itself into Indian jurisprudence has begun to be relegated to the margins of precept, policy and practice. The question of shelter, access and use of the spaces within the city and decreasing tolerance of the impoverished and the poor3 have been manifest, and have provided sites of contestation. The many faces of law have influenced the capacity of the various actors—including the municipal authorities, the police, the politician, the courts, the policy maker and the intervening cast of those raising a clamour for the rights of the threatened and the displaced as also the city-zenry4—in decisions made about the right to move into a city and settle there. The reconstruction of the city-zen that has been effected by a congruence of legislation, state policy and judgments of courts, and the practice premised on these, has spurred the development of a vocabulary which holds within it dominant perspectives and priorities. The emergence of a jurisprudence based on class action in the late seventies and early eighties had made courts arenas of contest in cases where deprivation of rights is patent. This jurisdiction of the court5 allowed matters to be brought before it by a bona fide person with no personal stake in the outcome of the case. Labelled Public Interest Litigation (PIL),6 this was a juristic device which simplified the procedure for approaching the court, even as it relaxed the stringent rule of standing, and as access to the court was widened.7 It was intended, in its early years, to make the court relevant to those who would be intimidated by the cost, process or distance to the court, or who would be unable to reach its portals due to unawareness of the possibilities that the law and the constitution could hold. The original intent, then, was to reach rights to classes of people who had their rights denied to them. The Supreme Court’s constitutional power to do “complete justice”8 and to undertake interpretation of what is tersely stated in the law9 has made possible an enunciation of rights which, by imitation and example, has been essayed by the High Courts. The reinvention of the “public interest” too has occurred over the years, impacting on the question of shelter, and playing a central role in the apportioning of the city’s spaces. It is not only the precedential potential of court decisions which makes it important to read relevance in what apparently pertains to another territory or jurisdiction: so, for instance, what is said in the context of Ahmedabad in Gujarat, or Madras in Tamil Nadu would affect possibilities of treatment of Delhi’s dwellers; and vice versa. It is also that “[t]he
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law autonomously processes information, creates worlds of meaning, sets goals and purposes, produces reality constructions, and defines normative expectations”.10 The ‘public interest’ is construed according as these recognitions dictate. This then is an exploration into the role of the law in the lives of slum dwellers.11 It begins with matters of definition of who a slum dweller is in law, describes the courts’ engagement with the issue of shelter, moves through perceptions and priorities as reflected in law in its various manifestations,12 essays an understanding of the language developing around slum dwelling and demolition, and winds down with the question: is legality for the city’s impoverished? Defining a slum In 1956, the Indian Parliament enacted the Slum Areas (Improvement and Clearance) Act (1956 Act). Slum areas are by declaration: that is, the “competent authority” under the 1956 Act, may notify an area to be a slum area where the buildings: (a) are in any respect unfit for human habitation; or (b) are by reason of dilapidation, overcrowding, faulty arrangements and design of such buildings, narrowness or faulty arrangements of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors are detrimental to safety, health or morals.13 But it is not only slum areas as so defined which are treated by policy makers as slums. In a 1976–77 survey conducted by the National Sample Survey Organisation (NSSO) on “Condition of slum areas in cities”, ‘undeclared’ slums were defined as “an areal unit having 25 or more katcha structures mostly of temporary nature, or 50 or more households residing mostly in kutcha structures, huddled together, or inhabited by persons with practically no private latrine and inadequate public latrine and water facilities”.14 The NSSO, in its 1993 study on slums in India categorised area types of slums into residential, industrial, commercial and others.15 Slums, as observed by the Working Group on Slums which submitted its report to the Planning Commission in May 1998, are known by different names in different cities—katras or jhuggi jhompri in Delhi, jhompadpatti or chawls in Mumbai, basti in Calcutta, cheris
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in Chennai and keris in Bangalore. “[B]ut their basic characteristics remain the same, i.e., dilapidated and infirm housing structures, acute overcrowding, faulty alignment of streets, poor ventilation, inadequate lighting, paucity of drinking water, water-logging during rains, absence of toilet facilities and non-availability of basic physical and social services”.16 There are, in effect, three kinds of ‘slums’ that may be identified by a critical eye: • Declared slums—where a competent authority under the 1956 Act had notified an area to be a slum. • Undeclared slums—where they are de facto recognised as slums, but, not having been notified, the benign provisions of the 1956 Act, particularly those that relate to provision of services and improvements in situ, may not be extended to them. • Planned slums—the replicating of high density and poor, or non-existent, services at the resettlement site and the impoverishment that results from demolition and de-housing most often makes slums, within the definition, of resettlement sites. These may, with reason, be seen as ‘planned slums’. The extent of city populations resident in slums is inordinately large. In the NCT of Delhi, of the projected population of 1.40 crores, about 3,00,000 are officially estimated as living in 6 lakh jhuggis in about 1,100 jhuggi jhompri clusters.17 In Madras (now Chennai), the Supreme Court cited a report prepared by the Collector of Madras that 43 per cent of the population of Madras lived in 1202 slums occupying 6 per cent of the total area of the city.18 In an affidavit filed in the Supreme Court in 1991, the state of Gujarat claimed to have identified ‘5 lakh slum dwellers or pavement dwellers out of a population of 29 lakhs’ in the city of Ahmedabad.19 The judge in Olga Tellis v. Bombay Municipal Corporation20 says of those living on pavements and in the slums of the city of Bombay: “They constitute nearly half the population of the city.” This then is an indicator of the extent of the population unable to access adequate housing, and whose shelter could therefore be shorn of law’s legitimacy. It is also indicative of the large numbers under threat of being illegalised by legal definition. It is, too, a statement
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of what law’s agencies believe they are dealing with when they are contending with the phenomenon of slums. The courts have, however, not been particular about definitions; they have been led by common notions of what passes for a slum rather than by statements in law. This could be one explanation why the law seems to hover against the backdrop, but has hardly ever been invoked when dealing with squatter settlements, jhuggi jhompris, pavement dwellings and their analogues. This attitude in justicing has been one cause for the slum dweller being placed beyond the pale of the law, in a segregated expanse of illegality.21
JUDICIARY-SPEAK In 1985, when the Supreme Court pronounced on the status of pavement dwellers and basti or slum dwellers in Bombay, it was the first statement on the rights, and of their absence, to emanate from the courts. Olga Tellis v. Bombay Municipal Corporation (BMC), brought before the Supreme Court as a PIL in 198122 when the court was venturing into the then emerging terrain of social justice, represents a seesaw of opinion on the existence, and the non-existence, of the rights of slum and pavement dwellers. It is a decision that has determined the most that a city’s poor can expect from judicial processes; the minimum remains undefined. Set in an era when the court was keen to adopt the poor as its constituency, there are no words of deliberated antagonism against the ‘law-breaking’ constituents of the city. Yet, the position of the poor remains protected but marginally. The petition arose out of an announcement made on 13.7.81 by the Chief Minister of Maharashtra, of which state Bombay is the capital that all pavement dwellers in the city of Bombay were to be evicted forcibly and deported to their respective places of origin or removed to sites outside the city of Bombay. There was a direction to the Commissioner of Police to provide the “necessary assistance” to the BMC to demolish the pavement dwellings and deport the pavement dwellers.23 The Chief Minister’s apparent justification for this course of demolition and deportation was: “It is a very inhuman existence.
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These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably.”24 The demolitions were begun, and it is recorded that the BMC put families into transport that would take them out of Bombay towards their places of origin. The demolitions were stayed by an order of the Bombay High Court. It was contended • that the pavement and slum dwellers resided where they did to be near their places of work. If they were forcibly evicted, they would lose their livelihood along with being de-housed, and this would result in a denial of the right to life; the right to life and the right to work being interdependent. • that the pavement and slum dwellers, numbering about 47.7 lakhs constituted about 50 per cent of the total population of Greater Bombay, that they were the major workforce for Bombay, that they had lived in the hutments for generations, that they had made a significant contribution to the economic life of the city, and it would be unfair and unreasonable to destroy their houses and deport them. • that the non-implementation of the Master Plans of cities had resulted in concentration of business and commercial areas to which the homeless naturally flocked, and the neglect of action under the Urban Land (Ceiling and Regulation) Act 1976,25 as also of rural programmes of employment, health, education, transport and communication, could not be made to visit the city’s poor. • that the pavement and slum dwellers could not be treated as “trespassers” since they were where they were only on account of economic hardship. The court’s response was eclectic. In one breath, the court held: “…we have to consider… whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does…. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.” Yet, it is only a person who is deprived of his right to livelihood “except according to procedure established by
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law” who can challenge the deprivation as offending the right to life conferred by Article 21. The BMC should, then: • give notice to the pavement, and slum dwellers, and • give them a hearing before demolishing their dwellings. So it was that, even as the right to livelihood was recognised as an integral part of the right to life itself, it was quickly shrunk to a minimum procedure of notice and hearing. The echoes of this position resonate in later decisions, only by then even the procedure is reduced to a grudging formality. So, in 1996, a bench of the Supreme Court warned the state to mount a “constant vigil” against encroachments for, “the longer the delay, the greater will be the danger of permitting the encroachers claiming a semblance of right to obstruct removal of the encroachment. If the encroachment is of recent origin the need to follow the procedure of principle of natural justice could be obviated…. On the other hand, if the corporation allows settlement of encroachers for a long time…. necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers.”26 The Olga Tellis court represented the issue as a contest between pedestrians and pavement dwellers, which the latter definitively lost. Competing claims have been the themes of other litigation too. In Bombay Environmental Action Group (BEAG) v. A.R. Bharati,27 it was the Sanjay Gandhi National Park which was seen as threatened by encroaching slum dwellers. In Almitra Patel v. Union of India,28 the court developed the contours of a contest between garbage management in Delhi and slums. The slum dweller, of course, was the unvarying loser. Olga Tellis was also where the court declaimed that alternative pitches should be offered to resettle those who had been in the demolished site for a number of years. But it is also the case where the court hedged this assertion with the caveat that “we do not propose to
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make it a condition precedent to the removal of the encroachments committed by them.”29 It is the rare instance where the provision of housing to those without the power to purchase legality of shelter has been reinforced by a court. Even where it did occur, it was the determination of who constitutes “weaker sections” that occupied the litigation.30 Occasionally, at least in the 1980s, the court has given the nod to the states’ “benevolent and sympathetic policy in regard to the slum dwellers”.31 But a growing intolerance of slums is discernible in the later cases. So it was when, in April 2000, an ex-Prime Minister sat in protest on railway land in Wazirpur in Delhi, demanding that the slum dwellers be allotted alternative homes before demolition of their dwellings on the railway land. Pulling up the police for being deterred in carrying out the court’s order of demolition, the Delhi High Court is reported as having said: “You cannot leave it to the politicians… how the court orders should be implemented,” while warning that if the authorities continued to disregard the court, then the court may have to lay down clear guidelines for the police on its role.32 This endorsement of, even insistence on, of the use of force by state agencies, and the attempt to de-link the negotiation of the right to live in a city from politics, are still part of law in the making. The vice grip of the law is starker when the Bombay High Court, in BEAG v. A.R. Bharati, on 7.5. 97, ordered a manner of siege of “encroachers” in the fringes of the National Park. In a time bound schedule: • buses were to stop plying beyond the boundaries of the Park except for educational tours, and to the caves within the Park on the festive day of Mahashivaratri. • telephone connections were not to be allowed within the boundaries, except for public authorities; all others were to be disconnected. • barriers were to be erected within eight weeks to stop public transport such as taxis and autos from entering the forest area. • the BMC was to deny permission for commercial or industrial activity or to allow shops or establishments within the boundaries of the Park, except in the case of public authorities. Permissions already given were to be cancelled. All structures holding commercial establishments were to be demolished
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within a year, and all building material confiscated so that they cannot be used to re-erect the structures. • no repair or reconstruction of structures was to be permitted within the Park’s boundaries. • inhabitants in the Park without a photo pass were to be evicted forthwith. • slum dwellers whose names appear on the electoral rolls prepared with reference to 1.1.95 or any date prior to that date, and who continue to live there, were to be relocated by the State Government within 18 months “in keeping with their present policies”, and the structures occupied by them be demolished. (emphasis added) And so it goes on, even to direct: • that the State Government is to make available at least one battalion of the Special Reserve Police “to help in the process of demolition and removal of encroachments within the National Park Division”. If the State Government were to consider it necessary, even more than one battalion could be put at the disposal of the demolition process. And, in case the repressive import of these directions were missed, on 13.3.2000, the court “suggested to the committee (that it had set up to implement the orders of demolition and forced eviction) that if they can avail of the services of a retired army personnel of the rank of a Major or Colonel, that will facilitate the execution of the entire operation”. The exertion of the court’s power in the cause of demolition of slums is increasingly in evidence. The antagonism to ‘encroaching’ slum dwellers is undisguised. The encouragement to the use of force to clear slum dwellers from where they have settled is unmistakable. There are signs that the perceived inability of the state to prevent the proliferation of slums, where there is little ‘slum clearance’ but actually ‘slum creation’, as the Almitra court saw it, has made courts impatient, and willing to supervise the demolitions, and the implementation of their orders. There has, naturally, been a consequent displacement of the recognition of the need for shelter, and a devaluing of the right to housing.
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PERCEPTIONS The dominant perception in law of slums and slum dwellers is of illegality. In one aspect, the slum dweller is seen as an ‘encroacher’—on pavements, and lands acquired for use of ‘land owning agencies’ (LOAs)33 or on spaces within the control of the state, such as forests and parks and sanctuaries. The unblinking disfavour with which the Supreme Court, in 2000, viewed relocation or resettlement of slum dwellings has been cause for consternation among housing rights activists. The court’s opinion that:34 Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket
is a disdainful dismissal of any legitimacy to the claims of the city’s poor to housing. The power of suggestion that resides with the court is evident in an affidavit of the Secretary, Ministry of Urban Development and Poverty Alleviation to the Delhi High Court in 2001, where these words in the Supreme Court’s judgment were extracted, to deflect the need to provide for a policy of relocation or in situ upgradation.35 Implicit in this statement is the warning that a land use policy that accounts for allocating land for the resettlement of slum dwellers whose habitat had been demolished would be in contempt of the Supreme Court’s orders! There is an imputation of criminality that is palpable in the Supreme Court’s statement. This is not an unusual presumption to encounter. In Olga Tellis, even as the judgment begins, the court sets out its vision of the slum dwellers’ life and times. At the end of a graphic, and adjectival, description of what the judges think life is in the slum or on the pavement, including “rabid dogs in search of stinking meat” and daughters, coming of age, and bathing “under the nosey gaze of passers-by, unmindful of the feminine sense of bashfulness”, the court, apparently more mindful of effect than of fact, generalises: “The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: ‘who doesn’t commit crime in this city?’ ” (pp. 555–56). Later in the judgment, the court rises heroically to the defence of the slum dwellers, declaring that the State Government’s charge that they
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“exhibit especial criminal tendencies” is unfounded. Citing a study conducted by the Head of the Urban Studies unit of the Tata Institute of Social Sciences, the court counters the government’s averment with the statistic that only 1.7 per cent of slum and pavement dwellers were found to be “generally unemployed”; and accuses the government of “prejudice against the poor and the destitute” (p. 585). Again, the court speaks for the pavement and slum dwellers when it explains that their occupation or business cannot be termed opprobrious or nefarious, and that they do not claim the right to dwell on pavements or in slums to pursue any activity which is “illegal, immoral or contrary to public interest. Many of them pursue occupations which are humble but honourable” (p. 573). Despite these supportive sentiments, the court did not revise its opening lines. A Planning Commission document reveals this bias when it characterises a slum as:36 … (b) Socially—slum is a way of life, a special character which has its own set of norms and values reflected in poor sanitation, health values, health practices, deviant behaviour and social isolation.
The illegal, and undeclared, status of slum clusters, means that getting services into the area is a gargantuan task. But it is not impossible. The inability to get electricity connections legally, for instance, would not preclude the possibility of procuring lines which provide power. This “power theft”, born of neglect and necessity, and made possible by informal systems of distribution often tainted with informal payments to entrepreneurs who work out the illegal connections, costs the slum dweller both in terms of payment for the service as also in terms of becoming another symbol of illegality.37 That the idea of the alternative site being “free” has taken root is patent in Almitra. In fact, every family, before allotment of the alternate plot, has to pay a sum of money to the corporation. The revised funding pattern in the Draft Annual Plan 2000–2001of the Urban Department of the Government of the NCT of Delhi on the “Relocation of JJ Squatters” runs like this: • The LOA is to pay Rs 55,000 for each eligible family • Government support would be Rs 15,000 per eligible family • The relocated ‘licensee’ would pay an interest free cash security of Rs 5,000, a licence fee of Rs 200 per year to be charged for
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10 years in the first instance, and Rs 1,000 as relocation charges to the Slum and JJ Department before taking possession. The slum dweller therefore has to pay Rs 8,000 before moving to the relocation site. It is also interesting that the government sets out to subsidise the LOA, but makes the displaced dweller pay a part of the cost. The recognition that there are ‘slum lords’, which is explicitly acknowledged in judgments (infra) who make the slum dweller pay while in the illegal settlement is not within the computation of costs that the slum dweller has incurred in the illegal residence. Further, the development of land at the demolished site remains unaccounted. Vacant, often uninhabitable, land is developed by the enterprise of the settler, and rendered fit for use. For instance, in the Dharavi of Mumbai that Kalpana Sharma introduces to us in “Rediscovering Dharavi”,38 it was the newly emerging land from marshes and swamps that the people converted into their habitation. When they are pushed off the land, this is nowhere in the reckoning. So, too, the houses that are destroyed; the construction of the varying ranges of structures in an uncertain climate of illegality, even hostility, and with no assistance from the state, is not reflected in any calculus when these shelters are demolished. The Instituto Libertad Democracia in Lima, Peru estimated that, on a house-by-house basis, and using replacement cost as of June 1984, the average value of an informal dwelling was $22,038 and the total value of the buildings located in Lima’s informal settlements came to $8319.8 million. The state’s investment for settlers whose socio-economic characteristics were similar to that of the informals roughly during the same period of investment, viz., 1960 to 1984, was $176.6 million.39 No such ascription of value and computation of investment have happened in India, and the myth of ‘free’ housing has been perpetuated. The ‘illegal’ status has also allowed mass demolition of housing without compensating the slum dweller for the losses sustained in the process. It is a rare occurrence when a court recognises the loss of property that is represented in the destructive process of demolition and confiscation. Meera Bapat records one such episode where, after a demolition carried out in Mumbai on 3.11.88, the municipal corporation was ordered to pay compensation to cover the value of the goods lost in the demolition, and costs of the petition. In a variation from the theme of bias against the poor and the illegal, the judge in
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this case was “very critical of the fact that the municipal personnel deliberately misled the people and lulled them into a sense of security, that they did not permit people to take away their belongings but instead allowed them to be misappropriated by municipal staff… (and) she has cast doubts on the honesty of municipal officers and workers” while giving credence to the “simple straightforward” evidence of pavement dwellers.40 After a later demolition, of 87 huts in June 1992, it was the word of the municipal authorities against the pavement dwellers’ word, and there were no surprises in store this time. Accounts of court proceedings suggest that the pavement dwellers were disadvantaged by their “lower credibility emanating from commonly held biases against them”.41 These processes of demolition, destruction, confiscation, and the inevitable reconstruction (since people must live) constitute unfailing prescriptions for impoverishment, but is wholly unaccounted for in statute law or policy; and is present only in unrepeated judicial utterances. The connection between land mafias and slums which is generally perceived as real has done its bit to sully the credibility of the slum dwellers’ claim to the right to shelter. In Olga Tellis (1985), a pavement dweller-petitioner narrated, among the facts he placed before the Supreme Court, that a “slum lord” had extorted Rs 2500 from him in exchange for a shelter of plastic sheets and canvas on a pavement on the Western Express Highway, Bombay, in which the dweller dwelt with his wife and three teenage daughters. This is the one concrete instance among the documents of law, policy and judgments. The court in Ahmedabad Municipal Corporation (1996) called it “common knowledge” that when “government allows largesse to the poor,… ‘slum lords’ exert pressure on the vulnerable sections of society to vacate their place of occupation and shift for settlement to other vacant lands… by encroachment.” (p. 141) The Almitra court (2000) collapsed the two “illegals” into one, in the process according an attribute of criminality to slum dwelling. “Establishing or creating of slums, it seems, appears to be good business and is well organised…. Large areas of public land, in this way, are usurped for private use free of cost … The promise of free land, at tax payers’ cost, in place of a jhuggi, is a proposal which attracts more land grabbers,” it said (p. 578), before likening an encroacher on public land to a pickpocket—a statement that is now being invoked implicitly to deny resettlement (supra).
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It is interesting that many states have made “special laws” to give the executive extraordinary powers to deter “land grabbers”;42 but there is little evidence of the usefulness of these laws in containing organised land invasion or encroachments. In asserting the logic of slum dwelling residents in cities, both advocates for the rights of slum dwellers and those seeking their disappearance recognise a link with livelihood as the essential cause for their clustering in the areas where slums have come up. This perception has, on the one hand, resulted in the non-consideration of a statistic that emerges from an NSSO survey: that more than 89% of urban slums in the country as a whole were located in residential areas, whereas 5% and 3% of the slums were found in industrial and commercial areas. In seeking explanations for this statistic, the role of social networks in determining where people settle, for instance, may be relevant. So, too, the factor of enhanced survival capacities in areas where the corporation exerts itself to provide services to other, more ‘legal’, residents. The narrowing down of matters of concern to just that of livelihood is perhaps what has emboldened the executive to decide to shift chemical units operating in Delhi and outlawed by orders of the Supreme Court to Narela—the site chosen to resettle those who had been close to the centre of Delhi.43 This focus on livelihood has also brought in notions of redundancy. The tolerance of illegality is reduced when the slum dwellers cease to be relevant as the working classes. It is hypothesised that the exiling of industry from within Delhi by court order in 1996 and the demolition drive against slum dwellings are not unconnected. This emphasis on livelihood has also eroded, even before it was formed, the right of persons without power to purchase legality to “reside and settle in any part of the territory of India”.44
…AND PRIORITIES In the competition for the city’s spaces which has surfaced in the last quarter of the twentieth century the rights of its residents have been negotiated and re-negotiated, and conflicts of interest resolved. Courts have been sites for resolving conflicting claims and policy has absorbed the prescriptions set out in judicial decisions. Legislation,
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such as the 1956 Act, has constituted the backdrop, but has not been actively used, or contested. The experience of Delhi in 1975–77, when demolition was unleashed on slum dwellings, and resettlement colonies established in what were then Delhi’s outskirts, is now part of Emergency lore.45 It is this that earned Jagmohan, currently Minister of Urban Development, and Vice-Chairman of the DDA during the Emergency, the epithet ‘demolition man’. In his tenure as Minister, Delhi has witnessed the routinising of Emergency-style demolition, but with no consequences to the government at the centre, or to the Minister’s political career.46 When he sets out priorities and designs in his “strategy of spatial planning”, it therefore demands to be noticed: “Whatever be the reason for the existence of slums and squatters’ settlements”, he says, “the fact remains that they cause extreme congestion, strain public utilities, make a mockery of the zoning regulations and municipal bye-laws, breed diseases and escalate the cost of the project for which lands squatted upon are needed. The inhabitants of these clusters are themselves the worst sufferers.” And: “The best way to deal with this gigantic and complex problem is to resettle the existing clusters on permanent sites and to ensure that future migration takes place in a planned and purposive way and the process of migration becomes skill and productivity oriented.”47 Both Olga Tellis and Ahmedabad Municipal Corporation represented the issue as a contest between pavement and slum dwellers, and pedestrians. It was a tussle between the right of way and the right to livelihood as it nestled within the right to life. “Public streets, of which pavements form a part, are primarily dedicated for the purpose of passing and, even the pedestrians have but the limited right of using pavements for the purpose of passing and re-passing,” the court said in Olga Tellis. And, “if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised” and “an act of trespass”. In Ahmedabad Municipal Corporation, eleven years after Olga Tellis, in 1996, the court was more peremptory: ‘The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility which has matured into a right of the pedestrians cannot be set at naught by allowing encroachments to be made on
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pavements.’ So, a ‘duty’ was cast upon the competent authority to remove encroachments on the pavement or the footpath. In K. Chandru (1985), the five judges of the Olga Tellis court cited a report which referred to the 1202 “ugly spots” in Madras city. By 1995, when the BEAG petition was filed in the Bombay High Court, environment had acquired a primordial status in the settling of conflicting claims by courts, and there was virtually no contest between conservation of the Sanjay Gandhi National Park and the shelter of the encroacher-dwellers. The Almitra court (2000) was considering the question of solid waste disposal in the cities of Bangalore, Mumbai, Chennai, Calcutta and Delhi. It seems to have been a short step from garbage disposal to slum clearance. The court’s understanding that it is the large number of inhabitants in “unauthorised colonies with no proper means of dealing with the domestic effluents, or in slums with no care for hygiene” that allowed it to draw slum clearance on to its agenda. The judge presiding over the bench, Justice B.N. Kirpal, had already expressed his views on resettlement in November 1993. In directions issued in the case of Lawyers’ Cooperative Group Housing Society v. Union of India48 he, along with a brother judge had said: “It appears that the public exchequer has to be burdened with crores of rupees for providing alternative accommodation to jhuggi dwellers who are trespassers on public land”.49 He then went on to alter the basis of rights of resettled dwellers from leasehold to licence.50 Now, in 2000, Justice Kirpal chastised the authorities for allowing an increase in the density of the population beyond the sustainable limit and said: “What the Slum Clearance Department has to show, however, does not seem to be visible.” Then, in a display of judgement which sidesteps the empirical issue of waste generation and disposal, while providing one more ground for condemning slums, he held: “Instead of the slum clearance, there is ‘slum creation’ in Delhi. This in turn gives rise to domestic waste strewn on open land in and around the slums. This can best be controlled, in the first instance, by preventing the growth of slums” (pp. 570–71). Almitra is a definitive statement on priorities. It is revealing that, in a judgement where the provision of “free land” to displaced slum dwellers was castigated, the court found the public interest in providing land free for landfill sites. Arbitrating on a difference between the DDA, which holds a lot of vacant land, and the MCD, which is to deal with the garbage, the court said: “Providing of landfill sites is
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not a commercial venture which is being undertaken by the MCD…. Not providing the same because the MCD is unable to pay exorbitant amount is ununderstandable. Landfill site has to be provided and it is wholly immaterial which governmental agency or the local authority has to pay the price for it.”51 The sites for landfills were to be identified within four weeks, bearing in mind the requirement of Delhi for the next 20 years, and handed over to the MCD/NDMC within two weeks of being identified “free from all encumbrances and without MCD or NDMC having to make any payment in respect thereof ”.52 The affidavit of 2.8.2000 of the Deputy Commissioner, MCD in Almitra is a reiteration of the Delhi government’s policy on slums. It is explicit in setting out the real estate priorities of the state, and of the ownership by the “land owning agencies” (LOAs) of the land that belongs to them, but which they have left vacant thus far. Following brief descriptions of the three schemes of environmental improvement in urban slums, in situ upgradation, and relocation of jhuggi jhompri clusters, the affidavit suggests two measures to be taken to gain effective control over the problem: (i) the land owning agencies53… be directed to take care of their lands and not to allow further encroachments on their … lands”. And “(ii) …LOAs be directed to provide no objection certificate for on-site upgradation of JJ clusters where lands are not required for project by LAO during next 10–15 years.” The protection of land from settlement or invasion has also been emphatically advised by the courts. In Ahmedabad Municipal Corporation, the court warned against allowing encroachments time to settle on the land; the competent authority was advised to “ensure constant vigil” against encroachments (p. 130). In Almitra, the LOAs were directed to “take appropriate steps for preventing any fresh encroachment or unauthorised occupation of public land for the purpose of dwelling, resulting in creation of a slum”. Almitra went further to recommend that steps be taken to improve sanitation in the existing slums ‘till they are removed and the land reclaimed’ (p. 573). It is telling that neither of these judgments speaks about the housing needs, or rights, of the city’s poor. When MCD suggests that LOAs inform the MCD that they will not need the land for 10–15 years, so that upgradation work can be undertaken, the implicit position, and the intention of policy, is that the slum may be demolished after 15 years, and the slum dwellers’ rights would have, at most, grown into a right to resettlement of the
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‘eligibles’ in the slum. This absoluteness attributed to LOAs is in contradistinction with the way the law has developed when a landlord seeks to evict a tenant from a notified slum. The Slum Areas (Improvement and Clearance) Act 1956 has a chapter on ‘protection of tenants in slum areas from eviction’. Every person desirous of evicting a person from a slum area notified under the Act has to obtain the permission of a competent authority designated under the Act. Section 19(4) requires the authority to take into account the following factors: (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum area; (c) ….. The case law that has developed around this provision in law is quite unqualified in holding that the purpose of the provision is to ensure that the tenant would not create another slum if he is evicted,54 and that alternative accommodation within the means of the tenant is available.55 The ocean of difference between the 1956 Act’s concern for alternative accommodation in individual cases of eviction, and the mass demolitions authorised, and more recently spurred on, by courts, often while invoking the right to life under Article 21 in a PIL, is striking. In cases of slum demolitions, then, the priority is slum clearance, and ‘reclaiming’ the land, while housing gets relegated to insignificance. The assertion of the right to shelter has been more categorical where the court has been endorsing coercive acquisition of land under the Land Acquisition Act 1894 avowedly to provide houses to dalits, tribals and the poor. The court, in Chameli Singh v. State of Uttar Pradesh,56 recognised power in the state to make compulsory acquisition of land invoking an “urgency” provision in the Land Acquisition Act, 1894 which dispenses with the procedure of giving notice of the acquisition, and inviting and hearing objections to the acquisition from persons whose interests in the land are being taken away, before finalising it. “So long as the unhygienic conditions and deplorable housing needs of dalits, tribes and the poor are not solved or fulfilled,” the court said, “the urgency continues to subsist.” While a decision
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such as this reinforces the power of acquisition of the state by using the right to housing as a justification, it does pitifully little about the right to housing itself.57 There has been a shift in the priorities of those who turn to courts to protect the ‘public interest’. When Olga Tellis and K.Chandru in the early eighties went to the court, the petitioners were advocating the right of the city’s poor to housing, and faulty planning and state inaction in implementing even such plans as were made, were indicted as the causes for pavement and slum dwelling becoming a necessary condition in the lives of the ‘illegal’ dwellers. In 1995, when BEAG went to court, the environmental group was approaching the High Court asking for demolition of slums infringing the borders of the National Park. In Almitra, the 1996 petitioner, went to the court asking for cleaning up the cities of garbage, was unable to steer the course of her petition. And when the court decided to take the slum ‘clearance’ route, there was no overt conflict with this revised agenda set by the court. This reinterpretation of the ‘public interest’ where it excludes the city’s poor, even as it denies a position to the right to housing, seems set to recur in the court’s processes, adding another dimension to disenfranchisement. In 1988, the National Housing Policy (NHP) was tabled in Parliament. Setting out policy objectives, the NHP “recognises the growth rate of slum populations…, the limited capacity of government institutions to provide shelter…, (the) futility of brick and mortar approach to the housing problem … The policy aims at eradicating houselessness by the turn of the century…”58 Yet, the benign statements in policy have not penetrated the perimeters of priority and practice in the arena of housing of the city’s poor. The silent demise, even in its pre-natal stage of the (Draft) Slum Policy mooted by the Government of India, which had among its “main objectives” the “bringing about the integration of these (slum) settlements and the communities residing within them into the urban area as a whole” has been a tale without a beginning.
LANGUAGE There is a vocabulary that is being moulded by practice and policy which exerts a deep-reaching influence on the perceptions and
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priorities that determine the extent of insecurity of the slum dwellers’ housing and the right to reside in the city. “Encroachment” is a term that is often used in the context of slum dwelling. It is loaded with illegality, usurping of the right of possession and use of land which belongs elsewhere. An encroacher is akin to a trespasser, as Olga Tellis reminds us, and trespass is a tort. The state has eminent domain over all land in its territory, and, in Delhi, the large scale acquisition of land to facilitate planned development has given government agencies, particularly the DDA which was to be the primary agency in developing the city according to a Master Plan, ownership rights over most vacant land within the city. A poor city dweller, seeking to create a shelter, would, then, inevitably be an encroacher, susceptible to the vicissitudes of illegality. Freehold, leasehold and licence are terms that have entered common parlance. These are systems of land tenure. Leasehold rights to residential property generally give the leaseholder the right over the land at a nominal periodic fee for a period of 99 years when the land would, in law, revert to the state. Freehold alters the status of the land in two significant ways: it gives rights to the landholder in perpetuity, which, among other effects, increases the marketability of the land. And it reduces the role of the government when dealing with land: a freeholder, unlike a leaseholder, does not require prior permission of the government to mortgage, sell or otherwise transact on the property. On 14.2.1992, the Government of India decided to sanction the conversion of leasehold to residential properties to freehold in Delhi.59 Not long thereafter, on 8.11.93, the Delhi High Court directed that, in the matter of “any alternative plots… allotted by way of rehabilitation” to “jhuggi dwellers who are trespassers on public land” the allotments “shall only be on licence basis with no right in the licensee to transfer or part with possession of the land in question”.60 By the time of the demolitions and relocation in Delhi in 2000, the conditions of the licence had been fleshed out. There are 13 conditions, which include:61 … (4) The licensee shall have no ownership rights. They shall not be allowed to sell/rent the plot. If it is sold/rented, the plot will be taken back. (5) No one other than the licensee and her/his family may stay in the house/allotted plot.
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(6) The licensee shall not use the plot for business or trade, for instance, by having a shop, or godown or storage. (7) The licensee shall use the plot only within the allotted space. If there is any unauthorised construction, it may be demolished without assigning any reason or giving notice of demolition. (8) If an adequate house is not constructed within six months of allotment, the licence shall be terminated. …. (12) If the licensee has taken a loan from HUDCO62 (for construction of the house), and has not been able to pay back the loan instalments for a period of six months, the licence will be automatically cancelled, and the licensee will be evicted from the plot. (13) Warning: Selling or buying the plot is against the law. In accordance with the directions of the Delhi High Court in CMP No.267 and 464 of 1993, the licensee does not have ownership rights. If anyone other than the licensee or his/her family is staying on the plot, licence will be cancelled and the person will be evicted without notice or without assigning any reason. The severity and peremptoriness of the conditions are explained by reference to the reported practice of allottees in the relocation site selling, transferring or otherwise giving up the use of the plot in the relocation site to return closer to their place of earlier residence. The non-provision of water, electricity, toilets, the absence or expense of transport services out of the relocation site, the distance and time from the workplace, or the access to schools could be the reason for the return.63 Leasehold rights in the relocation site could be the first semblance of a property right that the slum dweller acquires by residence in the city, which may then be exchanged or encashed to improve the opportunities available to the relocated dweller. This negotiability is dealt with punitively when the leasehold is converted into a ‘licence’. Rehabilitation is a term that has entered ‘displacement’ literature, i.e., where the context is large-scale displacement for the execution of projects such as dams and for industry. But resettlement and relocation are words that have entered the glossary of demolition narrative too.
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Resettlement sites, and relocation of slums, are used with a degree of interchangeability. However, while resettlement sites carries within it development of the land and the provision of basic infrastructure to facilitate a people to resettle at the new site, relocation of slums may be seen to have literal import—that of demolishing a slum to relocate it at another site. These however are nuances that are only gradually being teased out of the practice of demolition and shifting out of slum dwellers. The language of ‘eviction’, which is part of the 1956 Act, and which applies to ‘notified slums’, has given place to ‘demolition’. While slum ‘improvement’ is considered an option where the LOA does not require the land for a period of, say, 10–15 years, slum ‘clearance’ is the policy where the LOA wants to reclaim the land. Being an LOA in Delhi, for instance, where most of the land is held by government agencies, has the effect of diluting fair procedure in reclaiming the land. Where a private holder of land would be required to follow a procedure which may involve demonstrating the need to reclaim the land, competing comparative hardship to the occupier of the land and to the reclaiming owner, assessment of alternatives available to the occupier, being an LOA appears to obliterate all this. Differently from the illegality which is inherent in the existence of a slum, the categorisation of slum dwellers as ‘eligible’ and ‘ineligible’ has defined further the legality or illegality of the slum dwellers. The ‘cut-off date’ has acquired a meaning in this context. It refers to the date before which the slum dweller should be able to prove residence in the slum so as to be eligible for a space in the resettlement site. The cut-off date is only one factor. The slum dweller has to furnish proof of belonging in the slum before the cut-off date. These symbols of belonging may include identity cards, metallic tokens to signal entitlement at the resettlement site, a ration card and the voter identity card or the name in the electoral list. The capacity to pay ‘development charges’ and ‘licence fee’ within a stipulated date would also be relevant in determining eligibility. In an affidavit filed before the Delhi High Court, it was said for the Slum and JJ Department that they had received requests for relocation of 69,073 jhuggies of which 34,819 were eligible and 34,254 were ineligible. When demolition occurs, the eligible could move to the resettlement site. The ineligibles are invisibilised in this process. It is difficult in the current state of research to locate where the ineligibles
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disappear, though some of their number may be found on the fringes of resettlement sites, and it is considered not improbable, though not empirically established, that some of the displaced ineligibles attempt a return to their places of origin; their capacity to return remains undocumented.
IS LEGALITY
FOR THE
CITY’S IMPOVERISHED?
Olga Tellis was the first case of significance where the right of pavement dwellers and slum dwellers were in contest with state powers to outlaw them. Despite the sentiments of solidarity with the cause of the slum dweller that peppered the judgment, the court was unable to recognise a substantive right to housing for the city’s poor. Even while the right to livelihood was projected as a part of the right to life itself, demolition of the dwellings was accorded approval, with a gentle nudge asking that the exercise be tempered with humaneness. The right was reduced to procedural fairness, which essentially required that slum dwellers be given notice before their homes were destroyed. There was resentment of minimal procedure by the time the court spoke in 1996 in Ahmedabad Municipal Corporation. In 1989–90, the mood changed in the matter of housing, and, along with work, there were serious governmental moves to introduce housing as a fundamental right within the Constitution. A nongovernmental effort produced a Housing Rights Bill in 1990.64 1990 was the year when the then Prime Minister V.P. Singh announced the issue of food cards to jhuggi dwellers, and a survey was undertaken by the Civil Supplies Department between January and March 1990 to establish the identity of slum dwellers so that they could enter the planning process.65 With the fall of the V.P. Singh government later in 1990, the right to housing was no longer an issue. In Delhi, the nineties has seen: • demolitions and resettlement of a part of the dislocated population, viz., the eligibles; • the creation of planned slums, where the de-housed are given plots of 25 square metres where they have proof of residence in the demolished slum predating 1990 and 12.5 square metre plots to others who qualify for the 1998 cut off date;
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• exclusion of slum dwellers from the city, and their relocation in the outskirts of the city; • the invisibilising of the ineligibles; • the perception of illegality of the slum dweller dominating legal discourse, urging a denudation of already tenuous rights. This is certainly evident in the experience of Delhi. Perhaps the most severe sanction has come in the form of the conditions of the licence in the resettlement site which have been incorporated upon prodding by the Delhi High Court. The indictment of the slum dwellers in Almitra when giving land for settling a slum dweller was likened to rewarding a pickpocket is ironic in the face of the court’s imperative that land must be found, and given free, for garbage disposal. The entreaties of the Slum and the JJ Department that the process of acquiring land was encumbering the relocation of slums raises serious questions about how remote the possibility is of slum dwellers being able to participate in the land market to gain their houses the protection of legality. The policy of effecting improvement in slum areas if the LOA does not require the land for 10–15 years lends credence to the apprehension that the state of illegality persists until demolition is decided upon. The undetermined concept of ‘adequate housing’, along with the illegality of slums as encroachments, appears to have dislodged any priority that may have been accorded to shelter as a basic need, and a right. Decontextualised from the priorities of slum dwellers, as well as the capacity of the state to take the onus for providing shelter, it has become commonplace to ignore the enterprise, and the investments, of the poor in housing. The meaning of ‘adequate housing’ needs reconstruction, particularly to ensure that determinations of inadequacy do not result in permitting routinised, even authoritarian, demolitions. The perceptions, priorities and policies surrounding slum dwellings, and dwellers, have eroded responsibility for ensuring shelter and housing, even as illegalising the housing that slum dwellers provide for themselves has increased the insecurities of their dwellings and facilitated policies and practice of demolition. The systematic demolition of the housing that the city’s poor make for themselves is based on notions of illegality and encroachment, as
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also on the opportunity costs it represents for other potential users of the land or for city-zens. The right to housing, and the basic need for shelter, tend to fade out to reappear as formal procedural rights. The existence of policy, which urges the invisibilising of ‘ineligibles’ while relocating the eligible in a planned slum, leaves little room to doubt that it is slum clearance which is the objective of the exercise, and not the improvement of the conditions of life of the slum dwellers. The low priority accorded to the provision of basic services in the relocation site reinforces the belief that it is the exiling of the poor population which is the purpose of the demolition exercise. The ‘reasonableness’ of demolition and relocation, therefore, ought to be tested on standards that is yet to be set, on revised priorities and constitutional imperatives—including this, that every person is entitled to shelter. The abandonment of the NHP’s recognition that the slum and squatter settlements are a reservoir of low quality housing stock, “a sizeable potion of which cannot be substituted by conventional housing in the foreseeable future”66 is inexplicable except as prejudice compounded by practice, which cannot constitute the basis for policy or for an explication of rights. It seems it should be axiomatic that the destruction of shelter must be a measure in the last resort. The privatisation, by the state, of public land—with the state acting as a private owner would—while yet cultivating the powers of acquisition, demolition and dispersal of the city’s poor is a striking feature of state power which has become a weapon in de-housing slum dwellers, but is hardly invoked to proactively provide housing. An altered perspective on the nature of public land, and of who constitutes the ‘public’, might bring the city’s poor back on the housing agenda.
ACKNOWLEDGEMENTS The Centre for Human Sciences, New Delhi, supported a part of the research. Neeru Vaid provided committed research assistance. Muralidhar, Jayashri Suryanarayana and Seshadri Ratnam helped in the search for documents. Veronique Dupont prodded curiosity in the direction it then took and was generous in sharing her work, method and findings.
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An earlier version of this work was presented at Cape Town in November 2000 on …... and, again, at the Centre for Human Sciences, New Delhi, in a public meeting held on 18.12.2000.
NOTES
AND
REFERENCES
1. These refer to huts, or housing which shelters the city’s poor. They may be made with a range of materials including mud, thatch, perhaps some brick, tarpaulin and maybe some wood. These are relatively impermanent structures, often constructed or developed by the dweller, and are not in themselves difficult to demolish; it is the density of these dwellings and resistance to forced eviction, which makes demolition an immense exercise. 2. Part III of the Indian Constitution sets out the Fundamental Rights, which includes: Article 19 (1) All citizens shall have the right…. (e) to reside and settle in any part of the territory of India. 3. Baxi makes an important distinction between poverty and impoverishment. He explains that “impoverishment is a dynamic process of public decision-making in which it is considered just, right and fair that some people may become or stay impoverished”: Upendra Baxi, “Introduction”, in U.Baxi (ed.), Law and Poverty, Tripathi, Bombay, 1988, p.vi. 4. In this article, wherever used, ‘city-zen’ is used to refer to that part of the city’s population that, particularly since the nineties, have come to be regarded as those for whom cities are to be re-arranged. Practices of prioritisation, and exclusion, indicate who the city-zen is. 5. This is a jurisdiction exercised by the High Courts and the Supreme Court. 6. Baxi would have preferred the use of the term Social Action Litigation, both to distinguish it from PIL activism in the US, and in acknowledgment of the constituency of the court in this jurisdiction: “Undertrial as well as convict prisoners, women in protective custody, children in juvenile institutions, bonded and migrant labourers, unorganised labourers, untouchables and scheduled tribes, landless agricultural labourers who fall prey to faulty mechanisation, women who are bought and sold, slum dwellers and pavement dwellers, kins of victims of extra-judicial executions—these and many more groups…,” (Baxi). Baxi, U.U. Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”, in U. Baxi (ed.), supra note 3 pp. 387–415 at p. 388. 7. For an overview of the development of PIL in the Supreme Court, see Ashok H. Desai and S.Muralidhar, “Public Interest Litigation:Potential and Problems” in B.N. Kirpal et al (eds), Supreme but not Infallible: Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000, pp. 159–92.
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8. Article 142: “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…” 9. For e.g., Article 21 of the Constitution reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” After the advent of PIL, “life” has been interpreted to encompass livelihood, education, a clean environment, dignity, the absence of starvation… see ibid. 10. Gunther Teubner, “How the law thinks” (1989) extracted in MDA Freeman, Lloyd’s Introduction to Jurisprudence, 6th edn., 1994, p. 644. 11. In this article, consonant with the imprecision with which courts and policy documents have used terms, slums, squatter settlements and jhuggi jhompri will be used interchangeably. 12. Principally court decisions and policy. 13. Section 3 of the 1956 Act. 14. NSSO, Department of Statistics, Condition of Slum Areas in Cities, no. 290, 31st Round, September 1980, New Delhi. 15. NSSO, Department of Statistics, Slums in India, 49th Round, September 1997, Government of India, p.2. Pucca and katcha structures were also explained: “A pucca structure is one whose walls and roof (at least) are made of pucca materials such as cement, concrete, oven burnt bricks, stone, stone blocks, jackboards (cement plastered reeds), iron and other metal sheetings, timber, tiles, slate, corrugated iron, zinc or other metal sheets, asbestos cement sheet etc.” “A structure which has walls and roof made of non-pucca materials is regarded as a katcha structure. Non-pucca materials include unburnt bricks, bamboo, mud, grass, leaves, reeds and/or other thatch.” Further, katcha structures may be “unserviceable katcha” and “serviceable katcha”. And there might be semi-pucca structures. This is indicative of how ‘adequate housing’ would be understood. 16. Planning Commission, Report of the Working Group on Slums, May 1998, Government of India, p.1. 17. Affidavit filed in the Supreme Court by the Deputy Commissioner, Slum and JJ Department, Municipal Corporation of Delhi in the matter of Almitra H. Patel v. Union of India WP (C) 888 of 1996 dated 2.8.2000 p. 4. 18. K Chandru v. State of Tamil Nadu (1985) 3 SCC 536 at 539. 19. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) 11 SCC 121 at 135. 20. (1985) 3 SCC 545 at 555. 21. Also see T. Ramasamy Poojari v. Tahsildar (2000) 3 Madras Law Journal 845 at 847, where the Madras High Court held that: “The petitioner being, admittedly an encroacher in the land, he is not entitled to come before this court seeking for redressal... since it has been held… that the jurisdiction (of the High Court under Article 226 of the Constitution) can be invoked only to protect the existing right and not to confer a new right.”
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22. The petitioners were two journalists and two civil liberties groups—the People’s Union for Civil Liberties and the Committee for the Protection of Democratic Rights—and nine pavement dwellers. 23. Though, at first glance, the case seems to be concerned only with pavement dwellers, it in fact develops into a judgment on pavement, and slum, dwellers. 24. Cited at p. 557. 25. This Act was intended to impose a ceiling on urban holdings. “With the growth of population and increasing urbanisation, a need for orderly development of urban areas has also been felt. It is, therefore, considered necessary to take measures for exercising social control over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections and also avoiding speculative transactions relating to land in urban agglomerations.” Statement of Objects and Reasons, AIR Manual, Volume 44, 5th edn., 1989:1999 p. 780. This Act was repealed in 1999 because it had become “this most potent clog to housing”, and “provided copious opportunities”: Statement of Objects and Reasons attached to the 1998 Bill. So, the Act as passed in 1999, allowed those who had managed to hold on to possession of the land, contrary to the law, to retain it: section 3(2). This Act has to be adopted by each state to come into effect in that state, in conformity with the constitutional norms of federalism. 26. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) 11 SCC 121 at 130, emphasis added. The Madras High Court expressly followed this dictum in T.Ramasamy Poojari v. Tahsildar (2000) 3 Madras Law Journal 845, asserting the power of precedent. In the meantime, the Olga Tellis bench had reiterated its position in K.Chandru v. State of Tamil Nadu (1985) 3 SCC 536, pertaining to Madras city. 27. Writ Petition No. 305 of 1995 in the Bombay High Court. 28. (2000) 1 SCALE 568. 29. At p. 586. 30. Shantistar Builders v. Narayan Khiimalal Totame (1990) 1 SCC 520. Adopting the ‘means’ test, a family with an annual income of Rs 18,000 was considered to belong to the weaker section. It was suggested that a committee be set up to oversee the implementation of a scheme for effectuating the purpose of providing housing within the limited scope under consideration. This was in January 1990. However, in November 1995, questions of who should and should not be on the committee were still being agitated before the court: (1996) 1 SCC 233. 31. K.Chandru v.State of Tamil Nadu (1985) 3 SCC 536 at 541. 32. “High Court pulls up police over slum clearance”, Hindustan Times (Delhi), 27.4.2000, p. 3. 33. Number of jhuggi jhompri (JJ) clusters on land belonging to various LOAs in Delhi as on 1994: DDA –700; Land and Development Office – 76; Railways – 65; Slum Department – 30; MCD – 23; Gram Sabha – 16; Cantonment Board – 11; NDMC – 6; Others – 153; Total – 1080 JJ clusters. Source: Affidavit of Deputy Commissioner, Slum and JJ Department, Municipal Corporation of Delhi, dated 2.8.2000 in the matter of Almitra Patil v. Union of India Writ Petition (Civil) 888 of 1996.
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34. 35. 36. 37. 38. 39. 40.
41. 42.
43.
44.
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It is significant that the largest segment of JJ clusters is on DDA land. The DDA was established to “promote and secure the development of Delhi according to plan”. See the Delhi Development Act 1957. It has the power to acquire land under the compulsory, and coercive, land acquisition procedures. Among its functions has been the provision of affordable housing for different classes of house buyers, including what are termed in the planning process as “Economically Weaker Sections”. The Master Plan for Delhi, first prepared in 1962, and revised in 1990 and currently under scrutiny for a further revision, does not, however, provide for slums, since that is not a type of dwelling that the law has been willing to endorse. The Master Plan for Delhi made under the 1957 Act has been invoked, and often misrepresented, in its application by the courts, the executing agencies and non-governmental actors too; but that is a matter for another study. The various moves to demolish slums, and the reluctance to part with land held by the DDA to house the de-housed, reinforced by a strident unwillingness exhibited by the court in Almitra is, therefore, a telling statement of who the DDA, and the Almitra court, see as their constituency. Almitra at p.571. Affidavit submitted to the Delhi High Court in the matter of K.K.Manchanda v. Union of India Civil Writ No. 531 of 1990 dated 13.4.2001. Report of the Working Group on Slums, Government of India, Planning Commission, May 1998, p. 5. See, for instance, “Slum clusters choke ‘model colony’”, Hindustan Times, (Delhi), September 13, 1999. 2000, Penguin India, p. xxi. Hernando de Soto, The Other Path: The Invisible Revolution in the Third World, Harper and Row Publishers, New York, 1989, p. 18. Meera Bapat, “Bombay’s Pavement Dwellers: Continuing Torment”, 1992 Economic and Political Weekly 2217 at 2218 referring to a contempt petition in Writ Petition 3381 of 1988 by judgment delivered on 28.4.89. Meera Bapat, ibid. e.g., Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981; Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982; Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. Sujay Mehdudia, “Plan to shift chemical units to Narela”, The Hindu (Delhi edn.) 29.4.2000. It is not insignificant that industries in Delhi have been outlawed as an environmental measure and to distance the city-zens of Delhi from potential hazard. Article 19(1) (e) of the Constitution, supra note 2. The Constitution recognises only two reasons which might result in a restraint on this right—“the interests of the general public” or “the protection of the interests of any scheduled tribes”.
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45. The Shah Commission of Inquiry, set up by the government, which succeeded Mrs Gandhi’s Emergency rule after the elections in March 1977, records in its Interim Report II, chapter XIII. For extracts, see, “Shah Commission’s Findings—V: The Wrecking of Delhi” in Economic and Political Weekly, 24 June 1978, pp. 1019–1021. 46. The Emergency demolitions are identified as one of the causes of the government in the elections of 1977. 47. “Settlement code”, Pioneer (Delhi), 23.1.2000, being excerpts from a speech at the Conference of State Ministers for Urban Development. 48. Civil Writ No. 267 and CM 464 of 1993. 49. Quoted in Draft Annual Plan 2000–01 at p. 8. 50. See infra for discussion on licence. Contrariwise, in May 1996, the Delhi government altered the terms of ownership of houses constructed by the DDA. The rule had been that there could be no sale or transfer of ownership rights for a period of ten years from allotment. A market had been created through “power of attorney” transactions. This de facto flouting of the law was therefore given legal status by allowing for conversion of the housing to freehold from leasehold, upon which the power of attorney holders could become bona fide holders of the apartments. Cooperative Era, volume 15, No. 1, April–June 1996, p. 15. In 1992, the government had initiated measures to allow conversion of properties, other than DDA flats, to freehold making their sale and purchase simpler: see Brochure: Conversion from Leasehold into Freehold issues by the Ministry of Urban Development, Land and Development Office, Government of India, July 1999, p. 1. 51. At pp. 571–72. 52. At p. 573. 53. See note 33 supra for a listing of LOAs in Delhi. 54. e.g., Raj Rani v. Dwarka Das 1972 RLR (N) 13; Balkishan v. P.R. Varshneya 1972 Delhi Law Times 390. 55. e.g., Om Prakash v. Lachman Das (1972) 2 DLT 382. For other cases under the 1956 Act, see, Sangita Dhingra Sehgal, An Exhaustive Guide to the Slum Areas (Improvement and Clearance) Act 1956, Universal Law Publishing Co. Pvt. Ltd., 1998. 56. (1996) 2 SCC 549. 57. Chameli Singh has also come at a time when the Land Acquisition Act 1894 is under severe challenge for being used to displace whole populations of the economically marginalised to make way for large projects, including dam construction, industry and mining. 58. Promila Suri, Urban Poor: Their Housing Needs and Government Response, Har-Anand Publications, New Delhi, 1994, at p. 65. 59. See Brochure supra note 50. 60. Quoted in Annual Plan 2000–2001 at p. 8. 61. Free translation of an allotment letter of a relocated slum dweller in Narela, in the outskirts of Delhi, during a visit on 17.12.2000. 62. A housing loan corporation.
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63. In Samudayik Vikas Samiti v. Union of India CWP No.6553 of 2000 and CM No.10041 of 2000 in the Delhi High Court, order dated 16.11. 2000, the court recorded paucity of bus services from the relocation site, as also of facilities for health, sanitation, water and electricity. And the court had to order the provision of these services at the site of the ‘planned’ slum in Bhalaswa, Delhi. 64. Prepared by the National Campaign for Housing Rights. For a brief description of the features of this bill, see, S. Muralidhar, Adequate Housing: From a Basic Need to a Fundamental Right, dissertation submitted to the Faculty of Law, University of Nagpur, 1991. 65. Annual Plan 2000–2001, p. 1. 66. Supra note 58.
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12 Illegal Coal Mining in Eastern India Rethinking Legitimacy and Limits of Justice* KUNTALA LAHIRI-DUTT
Commonly presented as arising from poor policing and corruption, and as destroying the environmental commons, “illegal” production and marketing of coal is a significant aspect of everyday life in eastern India. Representations of illegality hide unpleasant social realities of the coal mining tracts: poor environmental performance of the state-owned mining sector, social disruption and displacement of communities, and a general decay in the traditional subsistence base. This paper works through the complex layers of mining laws and investigates whether the laws protect the interests of the disadvantaged. It offers a rethinking of what causes and constitutes illegality when a large number of people’s livelihoods depend on this kind of mining.
I
llegal mining usually makes sensational news in popular media. News of such mining represents a mix of human-interest stories peppered with (often serious) environmental concerns, shady businesses outside the boundaries of law making huge profits, and in general, paints a frightful future. Media tell us of those coal “thieves” whose relatives fear to claim the dead bodies of their loved ones who have died in roof collapses, of local politicians preventing the police from enquiring into the cave-ins, of the mafia involvement and the complicity of company or government officials in dishonest dealings in coal, of the
∗ This article has earlier been published in Economic and Political Weekly, 8 December 2007.
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threat to the environment from these mines, and the imminent dangers, risks and hazards to our roads and rail tracks that these mines are posing. The accidents, in particular, make excellent stories; and often make it to the front page especially if there are large numbers of dead or if the security of our comfortable middle class lives seems to be threatened.
UNINTENDED COLLIERIES Illegal mining indeed is a reality of life in the coal-bearing tract stretching from Raniganj in West Bengal westward to DhanbadRanchi-Hazaribagh where the collieries extend into Jharia and North Karanpura areas in Jharkhand. Three subsidiary companies1 of Coal India (CIL), with different histories and problems are responsible for the mining operations. Illegal mines are found in the older mining areas of Raniganj-Asansol-Dhanbad with more working or abandoned underground mines; it has also expanded rapidly around the large open cut coal mines that have come up in the last decade or so in to the Ranchi-Hazaribagh area. This paper deals with only eastern India, but informed observers say that such mining is common throughout the coal tracts of India. We may call them the “unintended” collieries— the extension of the informal practices, which, according to HarrissWhite comprise 88 per cent of India’s economy, into India’s coal mining sector.2 Once a furtive activity like the rice-traders in Calcutta’s suburban trains in 1960s, the illegal coal mining now openly inhabits the public space. It is now impossible to drive along any length of the highway from Raniganj region to Ranchi or Hazaribagh towns without encountering evidence of illegal mining in the myriad antlike processions of ragtag men—the cyclewallahs—pushing bicycles laden with sacks of coal weighing over 150 kg. To query the scale of unintended collieries, I jointly undertook a field survey of the small-scale distribution of illegal coal in eastern India (Lahiri-Dutt and Williams 2005). The cyclewallahs often cover up to 20–25 km in a day of work and their numbers may well be 2,000 or more on an average day on the roads around the edge of the coalfields between Ranchi and Hazaribagh. The survey found
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that about 2.5 million tonnes of coal was transported just by cycles in 2003–04. This amount is equivalent to the production of a reasonably large colliery. Yet, this coal is just the tip of the iceberg; add to this the marketing and distribution by the trucks all over the coal-bearing tracts of India, each one of which can carry up to 70 cycles weight of coal, and one can assess the immense size of the black economy. A veteran from the coal industry felt that around 70–80 million tonnes of coal is produced in India annually in addition to the official production figure of about 350 million tones.3 This illegal coal—black, invisible and underground in every sense of these terms—forms a part of an economy that has intricate networks and complex linkages going deep into all aspects of life in the coal producing regions of India. These unintended collieries pose a challenge to our understanding of the social changes engulfing the coal mining (and probably all mineralbearing) tracts. These mineralised lands since economic reforms have seen a flurry of activities as a result of the enormous demand for energy, minerals and industrial or building materials. Local people have often been unable to take full advantage of the new economy, whereas the environmental organisations have risen in unqualified critique of all kinds of mining, even calling for a “moratorium” on all of mining (see Vagholikar et al. 2003). In my view, the causes are buried under layers of complexities of outdated colonial laws of land acquisition and state-ownership of coal resources, lack of safeguards and protection of poor people, despicable social and environmental practices by formal mines, the disregard for social impacts by mining engineers and technologists, a continuity of licence ‘raj’ in CIL, and the overall trend informalisation of the economy. Illegal coal mines are an expression, locally, of unjust national mineral laws that fail to ask simple questions such as “who owns the mineral resources, since when and why”? “who controls their use”? and “who is looting and under what circumstances?” They also speak volumes about the performance of CIL as a mining company that represents the state and its interests. Above all, such collieries and the cycle-borne delivery also reflect several inescapable global trends—in mining, in mineral prices—and indicate a complex future in view of increasing pressure to liberalise the coal mining sector. The possible answers would depend on asking the right questions, and this paper aims to draw attention to the possibility of rethinking India’s mineral resource management and the mining laws through questioning illegitimacy itself.
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In dealing with mining in moonlighting mode, the invocation of macroeconomic theories of resource dependency is inadequate to fully explain the phenomenon of illegality. The theories of “resource curse” or “resource war” tend to reduce the complexity of mining livelihoods to a singular element and factor without a political and historical context (see Le Billion 2007; Omeje 2006; Lahiri-Dutt 2005 for more on this line of thought).4 Conventional understandings of mining-related social change or even the most sophisticated “Environmental Impact Analysis” techniques are inadequate for developing a socially-sensitive, politically-engaged, historically-informed and locally-embedded understanding of the phenomenon. Clearly, a rethinking is urgently needed; this review would involve challenging the picture of lawlessness repeatedly painted by the urban-based middle class, a picture that accepts the laws as immutable, and state’s interests as preceding over those of local people. One can then proceed towards revisiting the “commanding heights” philosophy-based coal mining laws and the monopoly that they have given to CIL. In this paper, I have attempted to use a “thick” geographical and historical contextualisation, and avoided citing too many international comparisons.5 Let us first take a brief look at the informalisation of the economy and illegitimacy in mining in other countries.
INFORMALISATION
AND ILLEGITIMACY IN
MINING
Illegal mining is prevalent throughout the mineral-bearing tracts of the developing world. Martinez-Castillo (1999: 31) has described such mining as “traditional” and “informal”, resulting from a range of pressures: “the economic crisis, urban unemployment in the cities, poverty in the agricultural areas and the violence that prevailed in the 1980s gave rise to a growing social phenomena—individual, family or collective migration to zones other than the place of origin, searching for safety and economic survival”. The use and extraction of minerals by different means such as digging, panning, sorting and amalgamation comprise an integral part of the vast informal economy on which little or no official data exists. In terms of sheer numbers, these people are not insignificant; a recent estimate of the World Bank suggests that over 20 million people in the world depend on
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mineral resource extraction for their living, a figure that is immensely more than those employed by the large and formal mining industries (CASM 2005). Indeed, employment in the formal mining sector has been steadily declining, whereas the numbers in informal mining have increased manifold (ILO 2002). A significant amount of minerals are produced this way, and can often account for a greater segment of a country’s mineral production. For example, the informal mining generated up to 65 per cent of Peru’s gold production in 2005–06. The representations of those engaged in informal mining vary: they are known as the wildcat ‘Garimpeiros’ in Brazilian Amazonia, the ‘Galampseys’ in Ghana, ‘Barranquilas’ in Bolivia, ‘Ninjas’ in Mongolia, and the ‘Gurandils’ (literally, “those who jump from cliff to cliff ”) or PETIs (acronym for “those mining without licence” in Bahasa Indonesian) in Indonesia. Only sparse data is available on China, but according to experts, the number of people engaged could reach 15–16 million, if cheap industrial minerals such as sand, stone and gravels are included.6 Whereas some countries might have a long artisanal tradition of mining, in most contemporary cases, informalisation of mining can be related to increasing poverty in rural areas that bear minerals or gem stones. International decision-making circles have now developed a nuanced understanding that this kind of mining is “a poverty issue which must be addressed by a comprehensive approach” (CASM 2005: 22). As people enter the informal mining sector as an alternative or supplement to subsistence agriculture, families may have marginally better access to cash incomes for the maintenance of their livelihoods. Hilson and Potter (2005) noted that the policies associated with the Structural Adjustment Programme of Ghana has fuelled the uncontrolled growth of poverty-driven gold mining and have further marginalised its impoverished participants. However, in almost all ex-colonial countries, the legal framework is such that minerals are owned only by the states. Consequently, throughout the third world, the phenomenon of illegal mining is increasing and greater numbers are taking up this profession. For example, in Mongolia, a semi-desert country and one of the last frontiers of human settlement, the number of Ninja miners increased from 10,000 to 1,00,000 between 2000 and 2004 (MBDA 2003). This represented around 20 per cent of the rural workforce (ILO 2006). During the same time, the Mongolian government has aggressively wooed foreign mining capital. As the
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major mining companies entered the fray, the ninja miners were pushed into more marginalised environments, panning for gold in harsh wintry cold often only at night to avoid being caught by the police (Appel 2004). Historically, we have seen such “rush” conditions in the Americas and Australia; although the early gold rushes in these countries of white settlement are now glorified as heroic elements of the colonial frontier economy. By contrast, in the third world countries, the lawless chaos envisioned in “contemporary rushes” has emphasised the illegality of such mining and suggested curse and war theorisations.7 Sierra Leone is the most remarkable case where the illegal mining of diamonds had funded warring rebel groups. However, attention to the pure economics of mineral revenues in isolation, leaving aside questions of justice and political ecology can give impressions that all conflicts over resources are because of the minerals as such, making them the problem, and eroding our historic understanding of resources as nature’s endowments. For example, the Central Intelligence Agency described the leaking of petroleum from oil pipelines by “militant impoverished ethnic groups” in Nigeria—an “archetypal oil nation”—as violent expressions of conflict. Summoning a broad “resource war” in this case, according to Watts (2004), draws attention away from the fact that the different ethnic groups have consistently tried to expand their access to and control over resource revenues occurring within their territories and have resisted the governmental control over resources that is rooted in the colonial history of the country.
OF SMALL MINES
AND
MAJOR MINERALS
To explore the question of legitimacy in Indian coal mining, let us first turn to the legal or regulatory framework of coal (and other minerals) in India, and the licencing and policing systems. We will then go on to examine how responsive our legal and political structures have been to the social and economic issues arising in mining regions. This section shows how coal, the mineral, itself is categorised as a major mineral, and then mines and mining are classified into different categories according to size. In this classical and seemingly watertight classificatory mode, there is no space left for small mining of a major
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mineral such as coal. But first let us obtain a snapshot view of mines classification in India. The Mines and Minerals Development and Regulation (MMDR) Act of 1957 is the principal legislation governing mineral prospecting, exploration and mining, besides the Indian Mines Act of 1952 which is primarily meant for labour welfare and safety and health issues. According to MMDR, a “mine” means any excavation where any operation for the purpose of searching for or obtaining minerals has been carried on and includes many other specific activities and operations. “Minerals” according to this act means all substances which can be obtained from the earth by a variety of mining, digging, drilling, etc., and includes mineral oils, which in turn include natural gas and petroleum. The MMDR Act and any other mining development plans are guided by the overall National Mineral Policy (NMP)9 first outlined by the government of India in 1993, and then revised in 2002. The objectives of the NMP are primarily “mineral development” through explorations of “mineral wealth” in the land and off-shore areas, to develop the wealth taking into account the national and strategic considerations, and ensure their adequate supply and best use. The NMP is meant to promote the mineral industry as well as research, training and development in minerals, keeping in view the present needs and future requirements, but with minimal adverse effects on forest, environment and ecology, and to ensure safety and health of all concerned. These objectives can raise a few important questions. First, if the ordering of the objectives reflects the priorities of the state, then where does one place the interests and well-being of ordinary people who fail to get a mention except in their being a part of the “all concerned”. Second, where, in this policy, does the state place the possibility and the need for undertaking assessments and mitigations of social impacts? Third, how does the state consider the governance, and regulation of the mineral producers including voluntary regulation? Finally, where do we place the informal mines and how do we deal with the phenomenon of illegitimacy under the current laws? According to Chakravorty (2002), an expert on small mines, such mines together constitute about 88 per cent of the reported mines producing about 10 per cent of the total value of mineral production of the country. The informal mines comprise a repository of the poorest people toiling at the lowest wages in the worst security, health and safety
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conditions, and which come nearest to the subject of my discussion. Here one must remember that whatever the size, all mines in India come under a plethora of government rules and regulations—the MMDR Act, Mines Act, Forest Act, Environment Act. The Minerals Conservation and Development Rules (MCDR) (1988) divides all minerals into “major” and “minor”, and rests the responsibility of mining the major minerals (such as coal) with the state. The Indian Bureau of Mines (IBM), working under the MMDR Act identified, according to Rule 42 of MCDR, 1988, further two categories: A or B category mines, determined on the basis of labour employment and the standard of mechanical equipment used. Whereas the “minor” minerals are defined by MMDR Act as “building stones, gravel, ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the central government may, by notification in the official gazette, declare to be a minor mineral”, there is some confusion regarding the definition of B class mines.10 The outstanding feature in this definition is scale: small production, small capital investment, labour intensiveness, shallow nature of deposits and low technology deployment. Thus, some of the coal mining operations on privately owned land would come under this category of mining. On the other hand, some labour-intensive underground collieries of the Eastern Coal Fields (ECL) could also qualify as “small” mines. Clearly, the current policies and regulations on the mining of minerals are not built to deal with the complex realities of informal or illegal mining and attempts to simplify mines, mining and minerals. It is worse when mines are classified according to production amounts only; the National Institute of Small Mines (NISM) defined the categories of mines in India according to their production.11 It is clear that the legal definitions hinge upon “size” factor. The size of operation determines the duration of a mine; however, for an economic activity like mining with close social linkages, such legal definitions are not helpful because they give the impression that a large colliery is just a scaled-up version of a small quarry. This reductionist concept uses the popular language of scale classification and obscures the unity or diversity of mining practices or linkages across scales. As large or the formal processes tend to appear as the only acceptable forms of mineral extraction, processing and use, those practices that cannot be fitted within the categories tend to be rejected and illegitimised.
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Clearly, the existing laws are neither comprehensive nor adequate to handle the informal mining sub-sector, part of which is licenced, but part of which is illegal, part of which has a long artisanal tradition extending back into pre-colonial days and part of which has been an offshoot of recent developments in mineral tracts. The illegal miners cannot lobby for recognition, and the current laws offer very few practical possibilities for them to mine coal legally, a situation that has resulted in serious consequences for the well-being of local populations and the environment.
COAL: ONLY
FOR THE
BIG BOYS
Under the amended Coal Mines (Nationalisation) Act, 1993, only two groups are eligible to mine coal: a central or state government company or corporation and “a person to whom a sub-lease has been granted by the above mentioned government company or corporation having a coal mining lease, subject to the conditions that the coal reserves covered by the sub-lease are in isolated small pockets or are not sufficient for scientific and economic development in a coordinated manner and that the coal produced by the sub-lessee will not be required to be transported by rail” (GoI nd). The rule is unambiguous: there is clearly no space for individual operators for mining coal. CIL, established in the euphoric and heady days of nationalisation in early 1970s, has the full responsibility of mining coal, the ownership of which is vested in the state. Consequently, over the years, CIL has come to represent the quintessential “greater common good”. The decision-making on the mineral resources in India has been characterised so far by a preponderance of engineers, geologists and bureaucrats, with politicians claiming they represent the entirety of “people’s interests”.12 The governance of coal resources is vested almost entirely with CIL. The Coal Mines (Nationalisation) Amendment Bill, 2000, allows state governments or undertakings to mine coal from smaller deposits only if CIL provides a certificate of no intention to mine—another vestige of licence raj times. The ministry of coal (MoC) has awarded CIL a near-monopoly, giving rise to a highly institutionalised, hierarchical and tight bureaucratic control over India’s
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coal resources. An opening of the coal sector to genuine competition— attempted by the World Bank and hinted by the Planning Commission report—will not necessarily solve its problems. The point I want to make is that there a need for policy makers to connect to social realities in mining areas and explore how to keep the wealth generated from mining within the region, how to benefit people from mining expansion, how to make laws that do not render people and their livelihoods illegitimate. Till 1993 or so, jobs were being given as compensation for land, but with increasing mechanisation and preference for open cut mining technologies, the number of available jobs have dwindled. At the same time, large projects have necessitated resettlement and rehabilitation (R&R) policy—first in 1994 and revised in 2000—but “income restoration” as envisaged in the policy has primarily meant insecure jobs with contractors and some form of assistance towards non-land based self-employment.
SOCIAL IMPACTS In spite of ministry of environment and forest controls, the CIL subsidiaries have vandalised the environment with little or no concern for the social implications. Environmental degradation associated with new mining projects has had serious social consequences: decay in forest-based livelihoods, crumbling social order, declining farming and shift of the peasantry from farm-based to livelihoods, to say nothing of physical relocation or displacement by mining. Even without environmental degradation, large mining projects are well known internationally to have caused significant social changes with serious implications for the livelihoods of local communities. Yet, this is an area that seems to remain beyond the periphery of the mineral governance in India. Social impacts in India are particularly associated with new mining expansion. Rao (2005) noted that displacement from traditional occupations has forced people into scavenging in Jharkhand. The neglect of social and cultural issues around minerals and mining has created a space for extreme leftist or Maoist movements—as observed by Chandra Bhusan, the associate director of Centre for Science and Environment in the dialogue on mining held by them in New Delhi in April 2007. Chandra showed
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that India’s mineralised tracts are co-terminus with “conflict zones”. Company officials, bureaucrats and technical experts including mining engineers have not sincerely engaged with the social issues, including the fact that the legal instruments are of colonial vintage, anti-poor, and are unable to deal with contemporary realities.13 Civil society groups have also adopted peaceful paths to use existing control mechanisms, such as public interest litigation (PIL), to bring justice to local people. These include the PIL filed by Haradhan Roy of Colliery Mazdoor Sabha which went to the Supreme Court against poor environmental care by ECL. The non-governmental organisation’s (NGO’s) concern for the environment is understandable given that the current legal framework allows for at least some amount of concern. In the absence of legal measures for social care, such as social impact assessments made by social scientists, or community engagement systems, resettlement and rehabilitation policies and practices have become the main plank of action by NGOs to give voice to local people and attempt to seek justice.14 The complaint made by Chhotanagpur Adivasi Seba Samiti (CASS) to the inspection panel of the World Bank on Parej East open cut project against poor social concern provides an example. Parej East was one of the 25 projects funded by the World Bank under its Coal Sector Rehabilitation Project.15 However, although the panel lashed the bank management and CIL, both remained unresponsive (Lahiri-Dutt and Herbert 2004). Even these measures have been largely unable to take up social issues in useful ways or claim mineral resource rights for landowners.
CIL’S MONOPOLY IN THE CONTEXT OF GLOBAL CHANGES The Indian coal industry currently occupies the third position in the world, mining about 400 mtpy with the US second at about 1,100 mtpy and China by far the largest at 2,400 mtpy in 2006. Within the country, coal mining is seen largely as equivalent to national interest, a crucial means for achieving economic growth and industrialisation and for meeting the rising aspirations or the comforts of urban residents; indeed nearly 60 per cent of our electricity is from coal.
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Outside the country, India’s coal mining industry is perceived as highly inefficient in terms of productivity: the mining cost of coal in India is 35 per cent higher than other coal exporting countries such as Australia, Indonesia and South Africa, the cost of mining is not recovered by coal sales and poor productivity (about 3 tonnes/manshift as compared to 12,000 in Australia). State ownership of coal mining in India is important because it can put a significant amount of control over the volatile nature of mineral sector revenues and prevent booms and slumps from occurring at intervals. It was presumed at the time of nationalisation that state ownership would effectively modify the negative roles played by the innumerable ‘private’ owners, but the role of the state-owned company in the post-liberalisation economic context has not been quite clarified. Currently, we have a volatile combination of rising coal demand, rising coal prices in the international market [in response to which the ministry of coal (MoC) has deregulated the coal pricing], of interested multinational companies (MNCs) attempting to invest in India (only sub-contracts are being given out at present to such large international companies such as Thiess, although several other companies are waiting behind the wings). Rethinking illegitimacy becomes important at this crucial juncture of India’s coal industry. To deal with the challenges facing the Indian coal mining industry, we need a greater awareness of the changes in the extractive industries sector elsewhere in the world, mainly in the “mining countries” [a major part of whose gross domestic product (GDP) comes from mining and minerals] such as Australia, Papua New Guinea and Canada. The challenge of mining coal stems from the fact of nearly 500 million or more people thirsting for access to electricity. No matter what the NGOs believe, coal mining will keep playing a major part in satisfying the demand for electricity for the foreseeable future. Coal consumption in the country is expected to reach somewhere between 800 and 2,000 mtpy by 2030 (the different crystal ball gazers are IEA 2006; Grover and Chandra 2006; Reuters 2007). There are obvious global implications concerning climate change and the Kyoto Protocol, enhanced imports and investments by Indian companies in coal mining in other countries. The implication on the ground is a definite increase in informal collieries which will continue to meet the demands of small, local consumers.
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SOCIAL LICENCE
TO
OPERATE
Let me come back to the changes that are occurring in the global minerals industry, which provides the “big picture”, the backdrop within which to evaluate CIL’s performance as a company. Increased and concerted global efforts have been underway since 1998 beginning with the formation of Global Mining Initiative (GMI) and the subsequent design of Mines, Minerals and Sustainable Development (MMSD) project supported by nine major mining companies. The International Council for Mining and Metals (ICMM) has been established as an industry peak body and the recently completed Extractive Industries Review (EIR) findings have led to the Extractive Industries Transparency Initiative (EITI), although the World Bank has not been fully supportive of all these initiatives. These processes were direct responses to the increasing charges of environmental destruction and the irresponsibility of mining projects to care for the social and cultural changes caused by them around their areas of operation. These global processes have forced some of the global mining companies to accept that legal compliance alone is not enough; they also need a “social licence to operate” in developing countries where mining has been “breaking new grounds” (see MMSD 2002).16 The main objective was trust building; the MMSD report noted (2003: 5–6): The mining and minerals industry faces some of the most difficult challenges of any industrial sector—and is currently distrusted by many of the people it deals with day to day. It has been failing to convince some of its constituents and stakeholders that it has the “social licence to operate” in many parts of the world, based on the many expectations of its potential contributions. The Bougainville rebellion in Papua New Guinea has now achieved a mythical status in mining lore; poor attention to community development and engagement with the landowners there caused the closing down of a large copper mine (see Filer 1990). Such examples are available closer home: the Phulbari coal mine project in Bangladesh was shelved in 2006 because of community agitations for alternative livelihoods. Yet the mining industry—unused to examining the complexities in social relations and territorially embedded nature of communities—has remained insensitive to the validity of increasing resentment against mining projects. For the mining engineers
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who make almost all plans, the mining project itself assumes great importance, subsuming people into disposable “overburdens” of mining operations.17 This is exemplified by the views of an ex-director of Indian School of Mines, Banerjee, who in a 2004 article even suggested the erection of boundary walls around the entire leased land after acquiring it a la urban gated community style. In the absence of a nuanced understanding of the society within which the mine operates, CIL falls back upon the legal system and the rationale that “The Land Acquisition (LA) Act or the Coal Bearing Areas (CBA) Act does not provide any assistance for” the local people affected by mining. Mining areas are characterised by heightened cash flows, influx of migrants, rapid urbanisation and the formation of new social alliances. Unused to analysing and addressing these social changes, mine planners complain: “not all people who live in communities occupying or using land required by the mine are land-owners” and resent that these people often “provide the leadership to those opposed to the land acquisition programmes”. As compared to this “social blindness”, the global mining industry is changing its approach, at least at the level of policy, language and organisational processes. Many corporate policies now explicitly address broader social justice objectives, local and indigenous employment, security and human rights, sustainable livelihoods, culture and heritage, the need for undertaking social impact assessments, ethical procurement and stakeholder and/or community consultation (Kemp et al 2006: 391–92). Many international mining companies now regularly hire social scientists, anthropologists and even gender specialists, for advising on good practice of integrated management of social and environmental issues around their mine sites.
ILLEGAL COAL
AND ILLEGAL
MINING
It is important to differentiate between illegal mining of coal and the illegal marketing and distribution of illegally (or even legally) mined coal. Not all illegal coal is illegally mined. Often legally mined coal may “fall off the back of truck”, is thrown out of rail wagons, or sourced by scavenging from mines and/or sale dumps,18 and can
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become illegal. Before prescribing any measure, one needs to remember that there are in fact two separate (but not unrelated) aspects of the “black” coal business: illegal mines and mining (without licence) and illegal marketing/distribution of coal. Neither are the two entirely homogeneous, nor do they have similar histories and organisational structures. Illegal mining takes three main forms in eastern India: small shallowdug village mines on private land, mining on re-opened abandoned or orphaned government mines, and scavenging on the leasehold land of official operating mines. This is just based on the source; there may not be any major difference in their production amounts. There are also a few “unregistered” mines: those that somehow escaped enlistment during nationalisation and became illegitimate. The lands on which mines are dug illegally are usually privately owned in Raniganj, but in Jharkhand, these are often village commons or ‘gair majurwa’19 lands. The mines are dug into outcrops exposed at the sides of steep hills or rivers. Coal may be extracted through a series of small open-cut holes, which may extend underground. Alternatively, they may be shallow underground operations, entered via a drift or a shaft to a depth of about 10–15 m, and which can extend for up to 200 m horizontally. Small brickworks—the customers—are located nearby synergistically. Coal is removed by pick-axe by the coal cutter after which loaders put the pickings into metal dishes or baskets carried on the head about 25 kg at a time. Some of these mines can operate throughout the year; others become unstable during monsoons; overall, the rainy season is the slack time as workers tend to take up employment in the fields. Some of these village mines can be extensive, where four or five thousand people work on an average day. Scavenging from old abandoned mines is another important source of coal. The eastern colliery tracts have a 200 year, poorly documented, history of underground and incline mining. The entire Raniganj-Jharia region is dotted with small abandoned mines, some of them orphaned by mining companies owned by individuals. As collieries were brought under state ownership, no one picked up the bill for rehabilitating the remains of old mines. The shafts of these pits provide ready access to underground leftover coal. More importantly, poor environmental care in rehabilitating the mines encourage scavenging. It is common for CIL subsidiaries to neglect filling up of voids with sand as per
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regulation (Lahiri-Dutt 1999), and consequently, villagers have ready access to any coal that is left. Breakage of sealed underground mines is quite common, the carbon monoxide present in such abandoned underground colliery often kill those entering to scavenge coal. The “board and pillar” system of coal mining in most underground collieries means that the entire amount of coal can never be lifted and significant amounts of coal is left behind. The company tends to leave a mine as soon as it becomes “uneconomic”, thus leaving the rest for local villagers to scavenge upon thus throwing them into seriously risky jobs. The ecological footprint left by open cut mines is more serious; so far there have been only a few cases of filling up and rehabilitation, re-contouring and re-vegetation of large pits after mining. Scavenging can occur in both underground and/or inclines, but assumes great significance in open cast mines. First of all, there are cases like the Samdi and Sangramgarh collieries in Raniganj, both among the oldest collieries of this area, where mining operations have been going on since late 18th century. Sangramgarh is an open cast operation where a 2 m thick coal seam near the surface has been left by the ECL, choosing instead to work on the lower, 6 m thick layer. This upper, thinner layer of coal has been cut into a maze of honeycomblike labyrinths, often extending to considerable distance under the surface. Scavenging of small amounts of coal, stealing and pilfering occur regularly from nearly all open cast mines. Poor security in mines, storage and transportation area provides opportunities for scavenging. In working underground mines, this happens from the coal loading area: coal is loaded by head baskets into awaiting trucks. Scavenging during transportation is not only small pilfering, but can also reach significant scale. Coal India also delivers coal to both the local sale dumps located near the mines and big dumps, and pilferage can take place on major highways from long-distance trucks or railway wagons. Trucks are “hijacked” regularly and at times significant amounts of coal can be offloaded from rail wagons. Though uncommon, there are some cases of oversight by officials in which the existence of some collieries was forgotten during the listing at the time of nationalisation. For example, Pahargora is a mine that did not make it to the official “list” of private collieries to be brought under government ownership. It continues to thrive till today. A similar case was Saltora in the Purulia district of West Bengal.
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PAUPERISATION
IN
MINING AREAS
The significant amount of social and environmental transformation in colliery tracts stems largely from the monopoly of CIL over coal ownership, mining and marketing. The notion that coal is being utilised for the greater national good by a central, government-owned body which represents people’s interests has allowed its painful lack of attention to social impacts of mining coal. The social transformations have come to characterise mining areas: decay of social fabric, changes in power relations, erosion of traditional livelihoods, migration from surrounding regions and rising levels of urbanisation. The social impacts vary according to the physical proximity of the mine, and are felt differently within the society, varying according to gender, class and caste. For example, in Raniganj region between 1971 and 2001, both agricultural land and the representation of peasantry in the workforce have steadily declined even in the non-colliery villages. Women—especially those from poorer, lower caste and adivasi communities—have found themselves more negatively impacted on as a group. In Jharkhand, a process of gradual pauperisation of the local residents has taken place in which the traditional land and water rights have been lost and few of the benefits of mining have accrued to local indigenous communities. To exemplify my point, let us now focus our attention on a spot on the highway to Ranchi. Amid a procession of cyclewallahs loaded with sacks and bags of coal chunks, I meet Nirjal Birhor. I first met Nirjal in his leaf hut some distance away from Hazaribagh town in the early 1980s. At the time, his livelihood continued to be based on hunting and catching animals and making rope from ‘chop’ creepers, despite the dwindling reserves of the surrounding Chhotanagpur jungles. In the last 20 years, his world has been turned upside down by the advancing coal mines. He has been evicted from his home, and in the absence of the forest resources that had offered him subsistence, has now turned to digging for coal. He describes his living as “coal collection”, but to others, Nirjal is a petty thief, stealing and delivering stolen coal. The links between the legal and illegal coal mines go beyond this simple evidence of pauperisation. The mining companies are the largest owners of land in the coal tracts, the prime employer
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of people and mover of resources. They choose to either overlook the coexistence of illegal mining with their operations, or see it as a law-and-order problem to be dealt by the district administration. To complaints of “theft” from its premises, the bureaucratic reply is usually that the company should look after its own premises and property with its own considerable resources. More often than not, the matter ends after a few exchanges of letters or at best “high level committee” meetings.20 In Jharkhand, illegal coal mining has followed the expansion of formal coal mining in recent years. This is primarily due to fact that CBA Act supersedes the non-transferability of tribal land which was a basic protective instrument for poor and indigenous peoples (Bengara 1996). In Raniganj and Jharia, occupational displacement due to the degradation of cultivable land has caused people to turn to this profitable economic activity. Formal and informal coexist in this part of India; at times the legal collieries have had to adapt their practices at times to the coexistence of illegal mines. In Khaerbad colliery in Raniganj, leakage of oxygen into the underground coal seams—caused by locally dug “rat holes”—has caused extensive mine fires. To keep the fire under control, Jambad, previously an underground colliery, has now been turned into an open cast mine, regularly needing hosing to quench the fire. The links are also evident in a subtle tolerance of illegal coal mining—both from private lands and scavenging from official mines and small-scale transport and distribution of illegal coal by company officials and district administrations. The metropolitan-based media has been concerned in recent years about the possibility of subsidence of the main railway track passing through the region. Concern on the part of the district administration and the subsidiary company of CIL is usually determined by the degree of media exposure received by major accidents. District collectors view the problem of illegal coal mining as one of law and order, yet avoid taking direct responsibility for preventing theft from company-owned land. They also tend to ignore the larger operations on privately owned land as long as the owners maintain peace with local power structures. Police officials tend to vary in their views regarding illegal coal; the district superintendent of police often tries to control the larger operations, both mining and truck transportation, but tends to ignore the cyclewallahs. Mine
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managers also appear to be fully aware of the exact locations of large illegal operations. Understanding these perceptions is important before giving out a prescription. For example, according to a journalist based in Hazaribagh, both large-scale (by trucks) and small-scale transportation (by cycles) occur in a centrally controlled manner that resembles the illegal ‘satta’ (gambling) business, run by the underground kingpins in the big cities. Although the mafia’s omnipresence is noted by everyone in the coal belt, in my view, the mafia operations comprise a different—I emphasise not necessarily unconnected—system of production and distribution of coal than that performed by the cyclewallahs. In my interviews with coal cyclewallahs, it was clear that the mafia-controlled system of illegal coal transport operates in trucks. Part of the problem also lies in how coal is marketed by CIL: coal is not freely sold to small and domestic consumers, and the entire coalproducing region in eastern India does not have a single distribution depot to cater to small and domestic consumers. Factories use coal by obtaining “linkage” from the mining companies. Often, a local coalbased industry-owner applies to the central government for a grant of coal to fire its furnaces. Till recently, this permission paper was rather hard to obtain and might require multiple bribes at various levels. Once granted, these permission papers can be repeatedly used to obtain tax-free coal from sale dumps of the Central Coalfields (CCL) even though the industry may have subsequently shut down and is only a front. In interviewing the cyclewallahs, we repeatedly asked whether their supplies were meant for fixed customers or not. Local chimney ‘bhattas’ or brick kilns can be major consumers of this coal throughout the dry months. In most cases, the cyclewallahs are itinerant sellers, selling coal to local chimney bhattas or brick kilns and even smaller consumers like individual homes. Thus a fundamental reason for delivery of coal by bicycle in the coalfields is lack of any regular delivery system to small local users. In the eastern parts, up until the 1960s, the urban households situated around the coalfields cooked with coal. Small coal dumps were established and licensed within a town, the coal being delivered by truck or rail. When liquid fuels (LPG and kerosene) became routinely available, use of coal in the middle class households was phased out in their favour. Being demand-driven in this case, the coal supply-chain extended as far as Kolkata or beyond.
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REGULATION, REGULARISATION REVISITING THE LAWS
OR
As the district administrations in Burdwan, Dhanbad and Hazaribagh set up committees to control and curb illegal coal mining, the main debates centre upon the options of regulation, regularisation and formalisation. Regulation would mean total blockade of all illegal mining—on private lands, operational and abandoned mines. A mine manager even suggested that the entire upper 20 feet layer of coal be razed as a preventive measure. As noted earlier, policing has so far been the preferred choice for CIL and its subsidiaries, although responsibility remains a thorny issue. The possibility of regularisation has been discussed recently in the Raniganj fields of West Bengal, where it has been proposed to bring the local illegal mines under a cooperative management of sorts. This is not new; in Indonesia, Soekarno’s government recognised the long artisanal tradition of mining and created space for them in “People’s Mines” which are allowed to operate at their low production levels. In people-friendly China, such village cooperative mines have existed in designated areas. However, responses to West Bengal government’s proposal so far have been unenthusiastic. The proposal, although the best available so far, is also unrealistic; cooperatives could include only the “illegal mines on privately owned land”. Cooperativism would also not challenge the exploitative production structures within these mines, perpetrate inequalities within and reinforce existing production relations in the absence of a good understanding of how the labour supply works. The important area of scavenging, pilferage and such other sourcing of coal—often involving the poorest of the poor—would then receive the main policing attention. With coal prices rising and demand soaring, the opportunity cost of illegal mining would remain favourable to the diggers. Blocking the topend—restricting market access or certification—would also not help under the dualistic market situation in which small consumers predominate and large-scale sales is centrally controlled by CIL. Above all, isolated measures targeted at stopping illegal mining would not work as long as the state and its representative CIL—are not perceived as fair and efficient. In my view, neither regulation nor regularisation would be possible unless the current legal framework around minerals is changed.
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However, the views expressed by the high level committee of Planning Commission which devoted a full sub-section on the implications of illegal mining, although suggesting many changes focuses on the revenue losses to the state and suggests (2006, p 131) that “for checking illegal mining there can be no substitute for improved standards of governance”. In my view, the existing mineral ownership and land acquisition laws are antiquated and unresponsive to concepts of social justice, and the regulatory system itself is in need of change to respond to the emerging social reality. This need for changing the regulatory system can even be seen through a purely economic lens. As noted before, rising prices in the international market, and the recent deregulation of coal prices within India means that coal prices will be in the near future on an upward swing. The demand is arising from the domestic sector as much as from small industries, not only the urbanising classes demanding coal but in many parts of eastern India degrading forests forcing even the villagers to use coal instead of conventional biomass fuels. Besides rising demand and prices, the other driving forces are the complete alteration of society and degradation of the environment—both of which are forcing people to turn to illegal coal mining for a living. On the larger, industrial scene, India will turn increasingly towards imports of coal. We simply will not be able to mine enough coal to meet the kind of demand that has been forecast. Indeed, India currently imports 35 mt coal, largely from Australia and Indonesia (ICRA 2006). An example of this new trend of Indian capital moving out of the country in search of securing coal sources is Tata Power’s recent purchase of Bumi Resources, an Indonesian coal company with mining leases in eastern Kalimantan. I envisage that in future the Indian coal industry will operate in three distinct layers (instead of the current formal-informal binary). The three layers will be comprised a top globalised sector, where multinational companies will enter to operate in different garbs and Indian companies will secure coal from abroad for their industries and power plants; a middle tier of CIL changing its modus operandi only marginally or refusing to change quickly enough, and a lower tier of unstoppable local private entrepreneurs investing and making money at the cost of poor people’s labour, yet providing a critical livelihood base for the masses and thus playing an important social role. As things stand now, it is difficult to predict the respective shares of these segments, but my guess is that in terms of numbers and
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livelihoods involved, this lowest tier will play such an important role that there will be a forced rethinking of our legal framework for mineral resource governance.
LIMITS
OF
JUSTICE
The high level committee on National Mineral Policy (2006) actually agrees with this point of view albeit indirectly. Although the report unabashedly intends to open up the minerals sector to foreign investors, it also notes in critiquing the NMP, that (2006, p. 20) “the issue of compensation for local tribal populations as a primary charge on the minerals extracted from their land needs to be built into the policy and given primacy along with the issues of deforestation, pollution, and other disturbances caused in the ecology by mining activity”. Quite rightly it points out the various defects in existing legal framework, particularly the lack of clarity and transparency (on such issues as the basis for grant or denial of concessions), conflicting laws at the federal and state levels (such as that of states imposing additional cess/taxes on top of royalties) that give a confusing picture to investors, and cumbersome and time-consuming procedures of obtaining a mining lease. In adopting a path of prescribing procedural complexities it explored how a “single window” system could be formed and suggested that coordination-cum-empowered committees should be set up at the state and central government levels to hasten the decisions on applications.21 However, it frames the issue of local community in terms of corporate social responsibility22 (CSR) which is again a neoliberal jargon term. It also contradicts itself in noting that “with a soft state apparatus amounting to a virtual absence of mining policies” will lead to greater illegal and unregulated mining, but for all practical purposes suggests a retreat of the state.
EFFECTS
OF
PRIVATISATION
We are now passing through a volatile time when the nationalised coal mining industry will undoubtedly, eventually, undergo divestment,
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and the monopoly of CIL will break. How will we then deal with the hundreds and thousands of people making a living from illegal mining of coal? Unless we understand this as a livelihood, and accept the rights of people over mineral resources, we will neither be able to strengthen our democracy nor uplift the enormous numbers languishing and threatening our economic prosperity. For this, more robust and socially informed mineral resource laws need to be developed based on an agreed set of broad principles. The foremost of these principles would be respect for the rights and interests of all those involved. With our poor track record of policing the environmental performance, it is dangerous to invite either foreign investment or open up the coal sector to private investment. The key question in this stage is, can the foreign investors rely on national governments to look after the interests of local communities, or should they do it themselves through CSR? The other question then would be, is legal reform the best approach or will the empty rhetoric of CSR be proven effective in India? Other liberalising developing countries that have opened up their minerals sector have banked on the CSR largesse, with significant resources and attention being devoted to developing comprehensive CSR policies within companies and nationally seeing corporations as vehicles of good governance and sustainable development. For example, in Indonesia receiving CSR awards has become an attractive deal for mine managers. Describing this as the “gift of the market” in South Africa, Rajak (2007) notes most mining companies now have a package of policies covering various areas which fall under the broad spectrum of CSR or socio-economic development (SED). CIL, moulded over the years of its existence into the philanthropic paternalism, remains far away from such measures. Given the history of small-scale entrepreneurship in Indian coal sector, it will be impossible to expect anything but a mushrooming of small coal mining leases in an open market scenario. Moreover, the current laws are focused only on mitigating the negative impacts of mining on the environment and people. Instead, we need to frame policies and laws that can deliver sustainable benefits for local, regional and even global communities. This can be achieved only if the laws emphasise the need for a more participatory and inclusive approach at the process level that mining companies can adopt. As things stand now, we are far away from establishing such
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processes. First of all, we need to learn more about the production organisation of “illegal” mines, as well as the marketing chains and chains through which legally mined coal may be illegally distributed. It is also necessary to know the extent of involvement of coal smugglers and mafia and the level at which they operate. It is crucial to identify the stakeholders of this black economy, and the linkages between the formal and informal coal mining sectors also need to be understood to identify the social, political and economic forces driving these unintended collieries. A revisit of the laws surrounding mineral resource extraction in India would thus involve a fuller understanding of the role of the community in local economies, to provide access to resources to local people, and to integrate community interests in mine management plans. Access to the land and its natural resources and food security are at the centre of illegal coal mining. If the coal resources of India are truly vested in national interest, they must help us to build and live in a society where opportunities and benefits are equal for everyone. The other urgent needs include the protection of common pool resources that help poor communities survive in rural economies in colliery tracts and to find ways to vest the power to co-manage the minerals with the local communities. If we can develop working arrangements for joint forest management or integrated water resource management systems, we can also start a rethinking process in India to create a situation where some form of co-management of collieries can be effectively developed.
RIGHTS
OF
LOCAL CITIZENS
We need to accept local and indigenous communities as equal and integral citizens, to acknowledge their rights over local natural resources, to develop the society also according to their needs as different from the dominant mining-urban-industrial economic form; and to find ways of decision-making in which they can take equal part. In India, especially in mining regions, people such as Nirjal are somehow tolerated, and planning is done for them, according to what the engineers think is best for them.
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It is also important that a wide debate takes place, between social scientists, planners, international agencies and civil society, on the issue of justice in coal mining areas. To find a socially just and forwardlooking resolution, and to make sure that an apparently “modern” but equally authoritarian, restrictive “planning” does not get imposed to “control” the “problem”, which will also enable the growth of Indian society, is a challenge which has yet to be solved. Illegal coal mining provides an important entry point to a public debate on rights over mineral resources—one that is of far more significant than that might appear to be the case at first sight. Collectively the debate implicitly involves the lives, livelihoods, and futures of a significant number of people straddling the mineral-rich tracts of all developing countries. This is not only a large population, but is also amongst the poorest and most exploited in the region. Our mainstream society has avoided accepting the poor and disadvantaged as an integral part, isolating them, and flaunting the environmental impacts of illegal mining a major cause of concern. It is important that we first of all question the limits of justice. Notions of legitimate and illegitimate (economic) practices are grounded upon a consistent traditional view of social norms and obligations, of the proper economic functions of several parties within the community. As the formal coal industry continues to isolate and exclude local communities from the formal economy, poor peasants and others can assert their rights.
ACKNOWLEDGEMENTS I thank a number of people who provided me with data, insights and answers to difficult questions. The late Sunil Basu Roy of CITU and Haradhan Roy of Colliery Majdoor Sabha India (CMSI); Tony Herbert of Prerana Resource Centre, Hazaribagh; Bina Stanis of Chhotanagpur Adivasi Seba Samiti, Hazaribagh; Bulu Imam of Sanskriti, Hazaribagh; and Xavier Dias of BIRSA deserve many thanks. Thanks particularly to Joydeb Bannerjee for his local insights and to David Williams for accompanying me to some difficult locations, to Colin Filer and A.J. Gunson for their critical reading of various drafts, and to Nitin Gupta for his research assistance.
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NOTES 1. These are Eastern Coalfields, Bharat Coking Coal (BCCL) and Central Coalfields (CCL). 2. The term ‘Unintended Collieries’ is inspired by Jai Sen’s ‘Unintended Cities’ article and is gratefully acknowledged. 3. For example, Meghalaya is a “fifth schedule” state in Indian north-east, implying that mineral resources there belong to local landowners. However, coal, which is abundant there, is classified as a “major mineral” meaning that technically it can only be mined by the state or major players. Consequently, the 30,000 or so engaged in coal mining in Meghalaya fall in a vacuum of non-legal space. 4. For example, the Movement for the Emancipation of the Niger Delta (MEND) from January 2006 kidnapped and ransomed over 50 workers, blew up pipelines, overran offshore rigs, killed Nigerian soldiers, declaring a “war on Shell”. Their demands were restitution for the environmental damage wrought by the oil industry, greater control over oil revenues for local government and development aid to improve living conditions. Watts (2004) had previously showed how the bureaucratic and government control over the oil resources of Niger delta have actually impoverished people to a great extent. 5. Diamonds in Africa are the best example; seen widely as a “rebel’s best friend” (Buhaug and Rod 2006), and now preserved for eternity by Leonardo de Caprio film, Blood Diamond. 6. Personal communication, with Shen Li, an authority on ASM in China and also the head of CASM China Network. See http://www.casmsite.org/regional_ CASM-China.htm 7. I do not contribute to the positivist theories of resource conflict, resource curse and resource wars that prophesise doom and gloom in developing countries, demonise the rightful needs and livelihoods of poor people, and prescribe topdown measures such as conflict management (see Lahiri-Dutt 2006). 8. Such size-based classification to govern natural resources has been a hall mark of India. Forest products were similarly classified into major and minor. 9. Available from http://mines.nic.in/nmp.html accessed on August 2, 2007. 10. Sahu (1992) describes them as “those whose production, or excavation quantity is limited in tonnage and not very large, mostly manually operated and sometimes employing machines to small capacity. Such mining activities are usually confined to deposits which are shallow in depth and small in extent.” 11. Small-scale up to 0.1 million tonnes per year (mtpy), medium from 0.1 to 0.5 mtpy, and large-scale being over 0.5 mtpy. 12. A statement in the March 1993 National Mineral Policy of the government of India exemplifies the utopian world that those in power inhabit: Small and isolated deposits of minerals are scattered all over the country. These often lend themselves to economic exploitation through small-scale mining with modest demand on capital expenditure and short lead-time, they also provide employment opportunities for the local population. Efforts
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Kuntala Lahiri-Dutt will be made to promote small-scale mining of small deposits in a scientific and efficient manner while safeguarding vital environmental and ecological imperatives. In grant of mineral concessions for small deposits in scheduled areas, preference shall be given to the scheduled tribes.
13.
14.
15.
16.
17.
In a scoping study on small mines and quarries, excepting a few rare cases, I did not find any small quarry that is in reality owned by an indigenous person, although many such mines operate on tribal lands, especially throughout Jharkhand-Chhotanagpur belt. CIL is aware of its poor social performance, but either bundles social issues with the environmental ones or cannot include the social issues within the current compliance regime that has little or no social content. Consequently, the Coal Sector Rehabilitation Project was split in November 1995 in an agreement between the government of India and CIL to separate the environmental and social components. Apparently, it was meant to assist CIL in the implementation of high priority environmental and social mitigation programmes, while providing the GoI with the time to take the necessary legal steps for the implementation of reforms. The Samatha judgment (dated July 11, 1997) is an exception in which the Supreme Court accepted the right to compensation of local populations, not only in cash through usual relief and rehabilitation packages, but also to a fuller life. The panel report found several instances of non-compliance on the part of the Bank with its policy on involuntary resettlement, particularly during the project preparation and appraisal phases, and with its policies concerning environmental assessment, consultation and disclosure of information and timely provision of land titles to resettled persons. The panel also found that the resettlement action plan for Parej East provided for the payment of a subsistence allowance which has not been paid to eligible families. The World Bank Management in response proposed to the government of India that it would provide additional support to address this shortcoming. The government of India noted that this allowance was not included in 12 other resettlement action plans prepared under Coal India’s corporate resettlement and rehabilitation policy and was reluctant to establish precedence. A social licence fundamentally changes the manner in which mining companies do business. Put simply, it implies that a means will exist for society to monitor and measure a project, and company performance throughout the mining life cycle. It is an extra-legal, abstract and ethereal concept that is largely outside the “core business” of mining. It has been defined as “the recognition and acceptance of a company’s contribution to the community in which it operates, moving beyond meeting basic legal requirements towards developing and maintaining the constructive stakeholder relationships necessary for business to be sustainable. Overall, it comes from striving for relationships based on honesty and mutual respect” (DITR 2006). The final report of MMSD, Breaking New Ground was presented to the Global Mining Initiative Conference held in Toronto May 2002. An example from Bannerjee (2004: 8) would be sufficient to exemplify this tunnel vision: “As Coal India, already suffering from a load of surplus labour,
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could not offer so many jobs to the land oustees as demanded, a large number of dissatisfied land oustees were formed and many CIL projects started facing land acquisition problems. Many mines have not been able to advance in the way it was planned, many others had to resort to muffled or controlled blasting and many new projects were delayed and the economic impact of these disruptions were enormous.” Sale dumps are depots where the mining companies store their coal after digging it out from different collieries. These are also distribution points for legal coal. Therefore, these are spots from where trucks leave with “linkage” papers to their destinations. “Gair majurwa” literally means “deedless land”, that is, land that is not officially recorded and has no legal ownership. Those living or cultivating such land may have de facto ownership, although such customary ownership is not recognised by the law when the company takes over land for mining. Consider this. In its letter No. 9627-P dated September 20, 1999 the superintendent of police of Burdwan district wrote to the chief managing director of ECL: “The response of the ECL authority in mentioning that the responsibility and authority in curbing down anti-social activity rests with the district administration and state police being true but the ECL authority should also not avoid its responsibility of guarding its property lying abandoned in open especially when ECL is provided with over 1,000 armed central industrial security force personnel and over 5,500 security personnel. Nearly 1,700 guns/revolvers are available with the security staff also.” Note the accurate numbers mentioned but the overall reluctance to share the responsibility of tackling the problem. The report refers to the submission by one mining company that it had to pass through 77 desks taking a minimum of 485 days. Rajak (2007: 2–3) has made a scathing critique of CSR: “Corporate Social Responsibility claims a radical break with the legacy of corporate philanthropy— charity replaced by the technocratic rationalism of ‘responsible competitiveness’ and ‘sustainable development’, while stakeholder engagement and participation take the place of the mine manager’s paternalism.… CSR claims the capacity to change the way in which business itself is done. It asserts the happy coincidence of economic imperative and moral injunction—the convergence of economic value and ethical values. It does so by drawing on a powerful paradigm of social investment through partnership.”
REFERENCES Appel, Peter. 2004. Small-scale Mining in Mongolia: A Survey Carried Out in 2004, Denmarks Og Gronlands Geologiske Undersogelse Rapport 2005/4, Denmark. Bannerjee, S.P. 2004. ‘Social Dimensions of Mining Sector’, IE (I) Journal–MN, Vol. 85, August, pp. 1–10. Bengara, Ratnakar. 1996. ‘Coal Mining Displacement’, Economic and Political Weekly, Vol. XXXI, No II, pp. 647–49.
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Buhaug, H. and J.K. Rod. 2006. ‘Local Determinants of African Civil Wars: 1970–2001’, Political Geography, Vol. 24, pp. 315–35. CASM. 2005. ‘The Millennium Development Goals and ASM’, Communities and Small-scale Mining, World Bank, available from www.casmsite.org. Chakraborty, M.K. 2002. Issues of Problems of Indian Small-Scale Mines. National Seminar on Policies, Statutes and Legislation, January, CMRI, Dhanbad, India. DITR. 2006. ‘Community Engagement and Development: Leading Practice Sustainable Development Programme for the Mining Industry’, Department of Industry, Tourism and Resources, Australian Government, Canberra. Filer, Colin. 1990. ‘The Bougainville Rebellion, the Mining Industry and the Process of Social Disintegration in Papua New Guinea’, Canberra Anthropologist, 13, pp. 1–39. Hilson, Gavin and Clive Potter. 2005. ‘Structural Adjustment and Subsistence Industry: Artisanal Gold Mining in Ghana’, Development and Change, 36(1), pp. 103–31. GoI. 2007. ‘Eligibility to Coal Mining’, available from http://www.coal.nic.in/ eligibility_to_coal_mining.htm accessed on July 2. Grover R.B. and S Chandra. 2006. ‘Scenario for Growth of Electricity in India’, Energy Policy, 34, pp. 2834–47. Harriss-White, Barbara. 2003. India Working, Cambridge University Press, Cambridge. Hilson, Gavin and Clive Potter. 2005. ‘Structural Adjustment and Subsistence Industry: Artisanal Gold Mining in Ghana’, Development and Change, Vol. 36, Issue 1, pp. 103–31. ICRA. 2006. ‘Coal Sector Analysis’, New Delhi, available from www.icra.in IEA. 2006. World Energy Outlook, International Energy Agency, Paris, pp. 600. ILO. 2002. The Evolution of Employment, Working Time and the Mining Industry, Document TMMI/2002, International Labour Organisation, Geneva. ———. 2006. ‘Informal Gold Mining in Mongolia: A Baseline Survey Report Covering Bornuur and Zaamar Soums, Tuv Aimag’ in Informal Economy, Poverty and Employment Mongolia Series, International Labour Organisation, Number 1, International Labour Office, Geneva. Kemp, D., R. Boele and D. Brereton. 2006. ‘Community Relations Management Systems in the Mining Industry: Combining Conventional and Stakeholderdriven Approaches’, International Journal of Sustainable Development, Vol. 9, No. 4, pp. 390–403. Kumarmangalam, S.M. 1973. Coal Industry in India: Nationalisation and Tasks Ahead, Oxford and IBH Publishing Co, New Delhi. Lahiri-Dutt, Kuntala. 1999. ‘State and the Market: Crisis in Raniganj Coalbelt’, Economic and Political Weekly, Vol. XXXIV, No. 41, pp. 2952–56. ———. 2001. Mining and Urbanisation in the Raniganj Coalbelt, The World Press, Kolkata. ———. 2006. ‘May God Give Us Chaos, So that We Can Plunder: A Critique of “Resource Curse” and Conflict Theories’, Development, 49(3), pp. 14–21.
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Lahiri-Dutt, Kuntala and David J. Williams. 2005. ‘The Coal Cycle: Small-scale of Illegal Coal Supply in Eastern India’, Resources, Energy and Development, 2(2), pp. 93–105. Lahiri-Dutt, Kuntala and Prasun K. Gangopadhyay. 2007. ‘Subsurface Coalfires in the Raniganj Coalbelt: Investigating Their Causes and Assessing Human Impacts’, Resources, Energy and Development, Vol. 4, No. 1, pp. 71–87. Lahiri-Dutt, Kuntala and Tony Herbert. 2004. ‘Coal Sector Loans and Displacement of Indigenous Populations: Lessons from Jharkhand’, Economic and Political Weekly, Vol. XXXIX, No. 23, June 5–11, pp. 2403–09. Le Billion, P. 2007. ‘Geographies of War: Perspectives on “Resource Wars”’, Geography Compass, Vol. 1, pp. 1–29. Martinez-Castilla. 1999. ‘Child Labour in Traditional Mining: Mouhuaca, Peru’, in N.S. Jennings ed. Child Labour in Small Scale Mining: Examples from Niger, Peru and the Philippines. International Labour Office, Geneva. MCDR. 1988. The Minerals Conservation and Development Rules. MBDA. 2003. Ninja Gold Miners of Mongolia: Assistance to Policy Formulation for the Informal Gold Mining Sub-sector in Mongolia, Eco-Minex, Mongolian Business Development Agency in assistance with Eco-Minex International and Murray Harrison, Ulanbataar. NISM., News Bulletin No. 11 and 12 October 1993 and January 1994, The National Institute of Small Mines, Calcutta, India. NMP. 2006. National Mineral Policy: Report of the High Level Committee, Planning Commission, Government of India, New Delhi. Oneje, K. 2006. High Stakes and Stakeholders: Oil Conflicts and Security in Nigeria. Aldershot: Ashgate, March. Rajak, Dinah. 2007. ‘Uplift and Empower’: The Gift, the Market and CSR on South Africa’s Platinum Belt’, Sussex University, UK, forthcoming in 2008 issue of Research in Economic Anthropology, special issue. Rao, Nitya. 2005. ‘Displacement from Land: Case of Santhal Parganas’, Economic and Political Weekly, Jharkhand Special Issue, October 8. Reuters. 2007. ‘India’s Coal Demand May Quadruple by 2031—Minister’, available at www.planetark.org/dailynewsstory.cfm/newsid/40808/story.htm Sahu, N.K. 1992. ‘Mine Reclamation and Afforestation: Different Methods’, Lecture notes of Training Course on Management of Small Mines: TechnoAdministrative Aspects, Organised by TISCO, Noamundi, February, 1–10. Vagholikar, Neeraj, Kaustabh A. Moghe and Ritwick Dutta. 2003. Undermining India: Impacts of Mining on Ecologically Sensitive Areas, Kalpavriksh, Pune. Watt, M.J. 2005. ‘Antinomies of Community: Some Thoughts on Geography, Resources and Empire’, Transactions of the Institute of British Geographers, Vol. 29, pp. 195–216. Watts, M. 2004. ‘Resource Curse? Governmentality, Oil and Power in the Niger Delta Nigeria’, Geopolitics, Vol. 9, No. 1, pp. 50–80.
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13 Verdict on an HIV Case, Supreme Court of India* LAYA MEDHINI, DIPIKA JAIN AND COLIN GONZALVES
IN THE SUPREME COURT OF INDIA Appellants: Dr Tokugha Yepthomi Vs. Respondent: Appolo Hospital Enterprises Ltd & Ann AIR 1999 SC 495 Decided On: 21.09.1998 Hon’ble Judges: S. Saghir Ahmed and B.N. Kirpal, JJ.
ORDER 1. Infringement of ‘Suspended Right to marry’ cannot be legally compensated by damages either in Torts or common law, is our answer to the problem raised in this appeal which is based on the peculiar facts of its own. 3. One Itokhu Yepthomi who was ailing from a disease which was provisionally diagnosed as Aortic Aneurysm was advised to go to the ‘Z’ Hospital at Madras and the appellant was directed by the Government
∗ Reproduced in Medhini, Laya, Dipika Jain and Colin Gonzalves (eds) 2007. ‘HIV/AIDS & The Law’, Ch 8, Gender: Women & HIV (Human Rights Law Network, New Delhi)
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of Nagaland to accompany the said patient to Madras for treatment. For the treatment of the above disease, Itokhu Yepthomi was posted for surgery on May 31, 1995 which, however, was cancelled due to shortage of blood. On 1 June 1995 the appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the result showed that the appellant’s blood group was A(+ve). On the next date, namely, on 2 June 1995, Itokhu Yepthomi was operated for Aortic Anuerism and remained in the Hospital till 10th June, 1995 when he was discharged. 4. In August, 1995 the appellant proposed marriage to one Ms ‘Y’ which was accepted and the marriage was proposed to be held on 12 December 1995. But the marriage was called off on the grounds of blood test conducted at the respondent’s hospital in which the appellant was found to be HIV(+). The appellant went again to the respondents’ hospital at Madras where several tests were conducted and he was found to be HIV(+). Since the marriage had been settled but was subsequently called off, several people including members of the appellant’s family and persons belonging to his community became aware of the appellant’s HIV(+) status. This resulted in severe criticism of the appellant and he was ostracized, by the community. The appellant left Kohima (Nagaland) around 26 November 1995 and started working and residing at Madras. 5. The appellant then approached the National Consumer Disputes Redressal Commission for damages against the respondents; on the grounds that the information which was required to be kept secret under Medical ethics was disclosed illegally and, therefore, the respondents were liable to pay damages. The Commission dismissed the Petition as also the application for interim relief summarily by order dated 3rd July, 1998 on the grounds that the appellant may seek his remedy in the civil court. 6. Learned counsel for the appellant has vehemently contended that the principle of “duty of care”, as applicable to persons in medical profession, includes the duty to maintain confidentiality and since this duty was violated by the respondents, they are liable in damages to the appellant. 7. Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an ethical code attributed to the ancient Greek
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Physician Hippocrates, adopted as a guide to conduct by the medical profession throughout the ages and still used in the graduation ceremonies of many medical schools and colleges. ∗∗∗ 8. The Hippocratic Oath consists of two parts. The first, or convenant, is the solemn agreement concerning the relationship of apprentice to teacher and the obligations enjoined on the pupil. The second part constitutes the ethical code. 9. It is on the basis of the above that International Code of Medical Ethics has also laid down as under: A physician shall preserve absolute confidentiality on all he knows about his patient even after his patient has died. 10. Here, in this country, there is the Indian Medical Council Act, which controls the medical education and regulates the professional conduct. Section 20A which was inserted by the Indian Medical Council (Amendment) Act 1964 provides as under: Professional Conduct: ∗∗∗ [T]he Code of Medical Ethics has been made by the Indian Medical Council which, inter alia provides as under: Do not disclose the secrets of a patient that have been learnt in the exercise of your profession. Those may be disclosed only in a Court of Law under orders of the presiding judge. 11. It is true that in the doctor-patient relationship, the most important aspect is the doctor’s duty of maintaining secrecy. A doctor cannot disclose to a person any information regarding his patient which he has gathered in the course of treatment nor can the doctor disclose to anyone else the mode of treatment or the advice given by him to the patient. 12. It is contended that the doctor’s duty to maintain secrecy has a co-relative right vested in the patient that whatever has come to the knowledge of the Doctor would not be divulged and it is this right which is being enforced through these proceedings. 13. It is the basic principle of Jurisprudence that every Right has a co-relative Duty and every’ Duty has a co-relative Right. But the rule is not absolute. It is subject to certain exceptions in the sense that a
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person may have a Right but there may not be co-relative Duty. The instant case, as we shall presently see, falls within the exceptions. 14. “RIGHT” is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined the “Right”. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition. The elements of a “LEGAL RIGHT” are that the “right” is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to ad or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that right. 15. Hippocratic Oath as such is not enforceable in a court of law as it has no statutory force. Medical information about a person is protected by the Code of Professional Conduct made by the Medical Council of India under Section 33 (m) read with Section 20A of the Act. The relevant provisions of the Code of Medical Ethics have already been reproduced above which contain an exception to the general rule of confidentiality, inasmuch as it provides that the information may be disclosed in a court of law under the orders of the Presiding Judge. This is also the law in England where it is provided that the exceptions to this rule permit disclosure with the consent, or in the best interests, of the patient, in compliance with a court order or other legally enforceable duty and, in very limited circumstances, where the public interest so requires. Circumstances in which the public interest would override the duty of confidentiality could, for example, be the investigation and prosecution of serious crime or where there is an immediate or future (but not a past and remote) health risk to others. 16. The General Medical Council of Great Britain in its guidance on HIV infection and AIDS has provided as under: When diagnosis has been made by a specialist and the patient after appropriate counselling, still refuses permission for the General Practitioner to be informed of the result, that request for privacy should be respected. The only exception would be when failure to disclose would put the health of the health-care team at serious risk. All people receiving such information must consider themselves to be under the same obligations of confidentiality as the doctor
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principally responsible for the patient’s care. Occasionally the doctor may wish to disclose a diagnosis to a third party other than a health-care professional. The Council think that the only grounds for this are when there is a serious and identifiable risk to a specific person, who if not so informed would be exposed to infection…. A doctor may consider it a duty’ to ensure that any sexual partner is informed regardless of the patient’s own wishes. 17. Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure in the circumstances enumerated above under which public interest would override the duty of confidentiality, particularly where there is an immediate of future health risk to others. 18. The argument of the learned Counsel for the appellant, therefore, that the respondents were under a duty to maintain confidentiality on account of the Code of Medical Ethics formulated by the Indian Medical Council cannot be accepted as the proposed marriage carried with it the health risk to an identifiable person who had to be protected from being infected with the communicable disease from which the appellant suffered. The right to confidentiality, if any, vested in the appellant was not enforceable in the present situation. 19. Learned counsel for the appellant then contended that the appellant’s right of privacy has been infringed by the respondents by disclosing that the appellant was HIV(+) and, therefore, they are liable in damages. Let us examine this contention. 20. Right to privacy has been culled out of the provisions of Article 21 and other provisions of the Constitution relating to Fundamental Rights read with Directive Principles of State Policy. It was in this context that it was held by this Court in Kharak Singh v. State of Uttar Pradesh that police surveillance of a person by domiciliary visits would be violative of Article 21 of the Constitution. This decision was considered by Mathew, J. in his classic judgement in Gobind v. State of Madhya Pradesh and Anr., in which the origin of “right to privacy” was traced and a number of American decisions, including Munn v. Illinois; Wolf v. Colorado and various Articles were considered and it was laid down ultimately, as under: Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon
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the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. ∗∗∗ ∗∗∗ ∗∗∗ ∗∗∗ ∗∗∗ 24. Reference may, at this stage, be made to Article 8 of the European Convention on Human Rights which defines this right as follows: (1) Every one has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. 25. As one of the basic Human Right, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others. 26. Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, Doctor-patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of person’s “right to be let alone” with another person’s right to be informed. 27. ...[A]s already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.
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28. Having regard to the fact that the appellant was found to be HIV(I), its disclosure would not be violative of either the rule of confidentiality or the appellant’s Right of Privacy as Ms ‘Y’ with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken place and consummated. 29. We may now examine the right based on confidentiality in the context of marriage. 30. Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how, life goes on and on, on this planet. 31. Mental and physical health is of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally healthy children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce. Reference, for instance, may be made to Section 13(1)(v) of the Hindu Marriage Act, 1955 which provides as under: 13.(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) xx xx xx xx (v) Has been suffering from venereal disease in a communicable form. 32. So also Section 2 of the Dissolution of Muslim Marriage Act, 1939 sets out that if the husband is suffering from a virulent venereal disease, a woman married under Muslim Law to such person shall be entitled to obtain a decree for dissolution of her marriage. 33. Under the Parsi Marriage and Divorce Act, 1936, one of the grounds for divorce set out in Section 32 is that the defendant has, since the marriage, infected the plaintiff with venereal disease. 34. Under the Indian Divorce Act, 1869, the grounds for dissolution of a marriage have been set out in Section 10 which provides that a wife may petition for dissolution if her husband was guilty of incestuous adultery, bigamy with adultery or of rape, sodomy or bestiality.
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35. Under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married was suffering from venereal disease in a communicable form. 36. The emphasis, therefore, in practically all systems of marriage is on a healthy body with moral ethics. Once the law provides the “venereal disease” as a ground for divorce to either husband or wife, such a person who was suffering from that disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of the disease. If the disease, with which he was suffering, would constitute a valid ground for divorce, was concealed by him and he entered into marital ties with a woman who did not know that the person with whom she was being married was suffering from a virulent venereal disease, that person must be injuncted from entering into marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman. 37. The contention of the learned Counsel that every young man or, for that matter, a woman, has a right to marry cannot be accepted in the absolute terms in which it is being contended. Having regard to the age and the biological needs, a person may have a right to marry but this right is not without a duty. If that person is suffering from any communicable venereal disease or is impotent so that marriage would be a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also legal duty, to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her. In this situation, the right to marry and duty to inform about his ailment are vested in the same person. It is a right in respect of which a corresponding duty cannot be claimed as against some other person. Such a right, for these reasons also, would be an exception to the general rule that every “RIGHT” has a correlative “Duty”. Moreover, so long as the person is not cured of the communicable venereal disease or impotency, the RIGHT to marry cannot be enforced through a court of law and shall be treated to be a “SUSPENDED RIGHT”. 38. There is yet another aspect of the matter. 39. Sections 269 and 270 of the Indian Penal Code provide as under:
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269. Negligent act likely to spread infection of disease dangerous to life—Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection, of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. 270. Malignant act likely to spread infection of disease dangerous to life—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 40. These two Sections spell out two separate and distinct offences by providing that if a person, negligently or unlawfully, does an act which he knew was likely to spread the infection of a disease, dangerous to life, to another person, then, the former would be guilty of an offence, punishable with imprisonment for the term indicated therein. Therefore, if a person suffering from the dreadful disease “AIDS”, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Sections 269 and 270 of the Indian Penal Code. 41. The above statutory provisions thus impose a duty upon the appellant not to marry as the marriage would have the effect of spreading the infection of his own disease, which obviously is dangerous to life, to the woman whom he marries apart from being an offence. 42. Can the appellant, in the face of these statutory provisions, contend that the respondents, in this situation, should have maintained strict secrecy? We are afraid, respondents’ silence would have made them participient criminis. 43. Ms ‘Y’, with whom the marriage of the appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+). The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage. As a human being, Ms ‘Y’ must also enjoy, as she, obviously, is entitled to all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country.
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This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV(+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms ‘Y’s’ right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay, in the Hail, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”. 44. “AIDS” is the product of indisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how so high ever or, for that matter, howlow he may be in the social strata. The patients suffering from the dreadful disease “AIDS” deserve full sympathy. They are entitled to all the respects as human beings. Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions. [See : School Board of Nassau Country, Florida v. Airline (1987) 107 S. Ct. TT23; Chalk v. USDC CD of Cal. (9th Circuit 1988) 840 2 F 2d 701; Shuttleworth v. Broward cty., (SDA Fla. 1986) 639 F Supp. 654; Raytheon v. Fair Employment and Housing Commission, Estate of Chadbourne (1989) 261 Cal. Reporter 197]. But, “sex” with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object. 45. For the reasons stated above, the appeal is without merits and is, consequently, dismissed.
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14 An Indian Charter for Minority Rights* SABYASACHI BASU RAY CHAUDHURY
At the initiative of the International Centre for Ethnic Studies (ICES), Colombo, a Statement of Principles on Minority and Group Rights in South Asia was drawn up and revised in April 2006. Cecilia Thompson did the main work for the preparation of this regional paper. François Roch undertook the background research, and the regional experts namely, Iqbal Ansari, Annil Bahattari, Radhika Coomaraswamy, Priyadarshini Dias, Rohan Edirisighe, Mario Gomez, Meghna Guhathakurta, Ahmed Imtiaz, I.A. Rehman, Ranabir Samaddar, and the Minority Rights Programme Officers of ICES, Jeevan Thiagarajah and Dhanya Ratnavale contributed with comprehensive, insightful and invaluable comments, contributions and suggestions regarding the background paper, the draft Statement of Principles and the annotations. Now on the basis of the Statement Sabyasachi Basu Ray Chaudhury has drafted a charter on minority rights in India being published here as part of this compilation for comments, suggestions, and circulation.
PREAMBLE 1. The Constitution of India has included a few very significant provisions relating to the protection of minorities and guarantees the cultural and social diversities in the country. But, the functioning of ∗ This article has been previously in Policies and Practices 14, 2007 (CRG).
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the Indian political system has indicated that the Constitution has not always been able to reflect the realities of the majoritarian basis of the Indian polity, the poor state of the protection mechanisms available in the country, and the low level of the constitutionally acknowledged minority rights on the basis of which these provisions are likely to function; 2. Very often the history of majoritarianism seems to suggest that the ideology of majoritarianism still exerts extensive and decisive influence on the conduct of State affairs in India, and the Indian State sometimes seems to believe that this country does not have a multi-ethnic, multi-religious and plural society, and as if minorities have not contributed in building this society; 3. Usually the protection of minority rights has been granted in India in terms of provisions of certain rights as rights of individual citizens, but not specifically as rights of members of minorities, that is group rights, and certain affirmative actions exist mainly as positive discrimination, and rights of minorities are assured only in the form of non-discrimination and equality before the law, which has proved insufficient to guarantee that minorities, who are often disadvantaged by society, may exercise all their human rights without discrimination and on a basis of equality, and may effectively participate in cultural, religious, social, economic and public life, as well as in decisions which affect them; 4. The minorities remain excluded from the decision-making processes in Indian national life, particularly in various levels of administration, formation and function of representative bodies including assemblies, formulation of cultural policies, and significant norms of citizenship, with the consequence that constitutionally and legally provided rights are not implemented in practice, and widespread violations of minority rights and discrimination against particular groups of the population continue on a daily basis, with citizenship having become an impoverished reality. In India, sub-group loyalties of people based on caste and sub-caste, clan and tribe being strong “others” are easily excluded, discriminated or neglected. Occurrence of inter-group violence involving minorities based on religion, sect, race, language and ethnic identity is rather common. Very often the members of minorities, including religious minorities, have been exposed to abuses perpetrated by private persons with the connivance or acquiescence of governments, with the criminal justice system failing in many instances in providing persons belonging to minorities with
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adequate legal redress for abuses suffered. The operation of the justice system is such that it has not only failed to deliver speedy untainted justice, but has given rise to a pervasive climate of impunity, with perpetrators of violations not having been brought to justice, which is one of the major sources of recurring violence in India; 5. India has done very little to remove the root causes of religious and other forms of discrimination, and violations perpetrated against minorities. The orthodoxies of the majority religion are not always ready to extend equal rights to the “other” who may be outside the religious/sectarian fold. This situation re-emphasises the need to elevate the national-judicial and legal norms and constitutional jurisprudence in India on equal protection and group rights issues to the standards of regional and international human rights law relating to minorities, that include the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the OSCE Framework Convention for the protection of National Minorities, the European Charter on Regional or Minority Languages, the Hague Recommendations Relating to the Educational Rights of National Minorities, the Lund Recommendations on the Effective Participation of National Minorities in Public Life, and other similar documents; 6. This situation of discrimination against minorities has aggravated after the tragic events of 11 September 2001, and certain minority communities have been facing systematic discrimination, and, in general, the weaker groups are suffering as a consequence of structural reforms, withdrawal of social welfare functions of the State, and the situation is calling for immediate establishment of regional and national standards and harmonisation of juridical-legal guarantees of minority rights. The Statement of Principles on Minorities and Group Rights in India may include the following:
PRINCIPLE 1 Application of the Principles (a) These principles shall be observed by the State, authorities, public and private organisations, institutions, corporations, NGOs, groups
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of persons, public officials and private individuals, whether State or non-State actors and irrespective of their legal status; (b) These principles shall apply without distinction to all groups, including, but not limited to, minorities, peoples, nationalities, ethnic groups, castes, tribes, migrant workers, stateless persons, internally displaced persons, refugees, as well as, where appropriate, to each member of such groups; (c) These principles shall apply to all persons and groups, irrespective of any citizenship, disenfranchised or other status; (d) These principles complement international, regional and national standards, norms and principles of human rights, refugee and humanitarian law. They shall not affect more favourable provisions concerning minorities, or the legal regime that may exist in a State or is provided for by relevant bilateral or multilateral agreements, in which case the more favourable provisions shall apply. Annotations While applying these principles, the following points need to be remembered. In India, in common parlance, minority solely refers to the religious minorities, and that too the Muslims, whereas there are so many religious as well as linguistic minority groups in the country. Moreover, the group rights are very often acknowledged solely as cultural rights in India, and the economic, political and democratic substance of governance is distanced from the grant of certain group rights. These principles not only apply to the State but to all the actors within the Indian society, and extend beyond the traditional responsibility of States to promote and protect human rights within their territory, in fulfilment of their obligations under international law. Increasingly, with the erosion of the central role of the State, the rise of nationalism, and the expanding role of non-State actors such as extremists, rebel groups and trans-national corporations who have become perpetrators of human rights violations, the respect and promotion of human rights have come to concern all sectors of society. This principle points to the existence of the diversity of different groups and peoples from a variety of religions, beliefs, and linguistic, ethnic and cultural backgrounds in India. The scope of the principles
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should not be limited to the sometimes restrictive concept of a minority, but should rather apply to all groups within the Indian society, in particular, those who are disadvantaged, excluded, marginalized or stateless, or have been disenfranchised. Finally, the principle reiterates that this statement is intended to complement and enhance the effective implementation of international human rights in full respect of individual dignity, tolerance and peaceful coexistence between individuals and groups, and that those provisions at national, regional and international levels which are most favourable to minority protection shall prevail. Regional and International Standards With reference to the responsibility of non-State actors, article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter referred to as the “Genocide Convention”) states that persons committing genocide shall be punished irrespective of “whether they are constitutionally responsible rulers, public officials or private individuals”. In humanitarian law, common article 3 to the Geneva Conventions and Protocol II provides protection in situations of non-international armed conflict and binds not only State actors but also all parties to the conflict. Similar language is used in principle 2 of the Guiding Principles on Internal Displacement, which stipulates, “These principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without diverse distinction.”
PRINCIPLE 2 Non-Discrimination and Affirmative Action z
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all individuals shall be recognised as a person before the law, with full equality before the law, equal protection of the law, and equal benefit from the law; non-discrimination and equality of treatment shall apply in all areas of economic, educational, social, religious, political and cultural life; special protection shall be afforded to persons, particularly women, who may be subject to threats or acts of discrimination, hostility, violence and abuse as a result of their ethnic, cultural, linguistic, religious or other identity; the enactment of laws relating to the crime of genocide and the effective application of laws on hate speech and hate crime shall be promoted; special measures of affirmative action shall be taken in order for persons belonging to minorities to enjoy equal rights with the rest of the population. These shall, however, be discontinued after the objectives for which they were taken have been achieved.
Annotations In view of the Partition of India in 1947 on the basis of religion, Liaquat Ali Khan, the Prime Minister of Pakistan, and Jawaharlal Nehru, the Prime Minister of India signed a pact on April 8, 1950 in Delhi that stated that the “governments of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality”. This should be given special attention while looking at the minorities in the post-partition India. Particular attention needs to be paid to the human rights situation of minorities who are often in a disadvantaged, marginalized and vulnerable position, and are therefore, discriminated against, thus requiring special measures to ensure that they benefit from the same rights on a basis of equality with the rest of the population. If no special measures are taken in favour of minorities, the non-dominant
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sectors of the population may ultimately be required to conform to the dominant groups. The pogrom in Gujarat in 2002 has indicated how certain constitutional safeguards have proved to be inadequate in a situation where the members of a religious minority could not be protected from being killed and massacred as the state itself seemed to have blessings for the perpetrators. For instance, one can refer to the Shah Bano case. Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India—they are different for Christians, Muslims and Hindus) allows the husband to do this without his wife’s consent: the husband just needs to say the word talaaq before witnesses for a valid divorce. Now, Shah Bano, as she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. Critics of the Shah Bano case pointed out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy. The justification for TADA was the increase in Punjab killings after Mrs Indira Gandhi’s assassination in 1984. “[The] Country was lulled into the belief that the police must be armed in that strategic part of India to suppress Pakistan prodded terrorists…. Instead law was made applicable to whole of India and upheld in Kartar Singh,” said former Justice Krishna Iyer. Anti-terror laws have very often been targeted minority groups in India. India’s Terrorist and Disruptive Activities (Prevention) Act was enacted to deal with Sikh secessionism. The civil rights activists allege that India’s anti-terror laws have unfairly targeted Sikhs and Muslims, echoing the criticism of the US Patriot Act. In Gujarat, Muslims were 9% of the population but accounted for a quarter of all jail inmates in the state.
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An assessment of the Indian Supreme Court on anti-terror cases is instructive because it sheds light on the challenges faced by judges in poor and multi-religious democracies. Indian judges have to walk a difficult path between upholding a constitutional mandate of parliamentary (and majoritarian) primacy in emergency laws, and ensuring fair treatment to religious minorities. Discrimination has been interpreted to “imply any distinction, exclusion, restriction or preference which is based on any grounds such as race, colour,… language, religion,… national or social origin… birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”.1 Discrimination has been prohibited in a number of international instruments that deal with most, if not all, situations in which minority groups and their individual members may be denied equality of treatment. Important safeguards from which individual members of minorities stand to benefit include recognition as a person before the law, equality before the courts, equality before the law, equal protection of the law, and equal benefit from the law. This principle, and especially the provision in favour of affirmative action, will contribute to reinforcing constitutional and legislative non-discrimination provisions in India, and enhance the protection of minorities who are often disadvantaged by the State and society, with a view to ensuring that they may exercise all their rights without discrimination and on a basis of equality. Affirmative action, as provided for under principle 2(4) aims at redressing the balance in equality of treatment between minorities and the dominant majority. Provided that the measures have such an aim, and that they seek to do no more than promote this equality, they are not to be considered discriminatory. In India, the law permits affirmative action, or compensatory discrimination, in favour of minorities. But, there should be a balance between measures of affirmative action and the duration of these measures beyond the achievement of their goal on the one hand, and the fundamental right to equality and equal treatment of both minorities and majorities in society, on the other. Formation of an Equal Opportunity Commission in India as recommended by the Sachar Committee Report to look into the grievances of the deprived groups could be a step ahead in that direction. Apart from providing a remedial mechanism for different
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types of discrimination, it could reassure the minorities that any unfair action against them would invite the vigilance of the law. Regional and International Standards Article 1 of the Universal Declaration of Human Rights states that “All human beings are born free and equal in dignity and rights” and article 2 of the International Covenant on Civil and Political Rights requires States to ensure that the rights in the Covenant are ensured to all individuals within their territory and subject to their jurisdiction “without distinction of any kind, such as … language, religion,… national or social origin, … birth or other status”. With specific reference to minorities, article 4 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereafter referred to as “the Declaration”) and article 4 of the OSCE Framework Convention for the Protection of National Minorities (hereafter referred to as the “Framework Convention”) guarantee their right of equality before the law and the equal protection of the law. The same article makes specific reference to the adoption of adequate measures “…in order to promote in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to a majority”. With regard to special measures of affirmative action, article 1(4) of the Convention on the Elimination of All Forms of Racial Discrimination states that “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.” Article 7(2) of the European Charter for Regional or Minority Languages, stipulates that “the adoption of special measures in favour of regional or minority languages aimed at promoting equality between the users of the languages and the rest of the population or which take account of their specific conditions
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is not considered to be an act of discrimination against the users of more widely used languages.” Principle 2(4) draws upon the language of article 6 of the Framework Convention, which states that “The Parties undertake to take appropriate measures to protect persons who may be subject to threats of acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity”.
PRINCIPLE 3 Right of Minorities to their Identity and Characteristics The identity and characteristics of minorities shall be respected and promoted. This includes the right: z
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to express, maintain and develop their identity and characteristics, including their religion, language, culture, traditions, customs and heritage. To this end, measures shall be taken to create the necessary conditions for minorities to enjoy this right. Such measures do not apply in cases where practices, whether ethnic, religious, cultural, linguistic or other, are contrary to international and regional standards, norms and principles and/or in violation of national law in the field of human rights, refugee and humanitarian law; to a nationality or equivalent citizenship status guaranteeing the same rights as those afforded to nationals; of every person belonging to a minority to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights, which are connected to that choice.
Annotations The right to identity is paramount to the protection of minorities as it is from such recognition that their protection may be afforded by
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the State, thereby also facilitating the application of specific measures for the benefit of minorities. The recognition of the identity and characteristics of minorities is very important in the Indian context as the wide variety of identities and the multiethnic, multi-religious and multi-linguistic composition of the Indian society is not sufficiently reflected in constitutional and legislative provisions, nor is the identity of minorities actively promoted. The right to distinct identity should include community-based family laws, provided they are reformed with a view to ensuring gender justice, as in some countries the uniformity of personal laws has become a tool in the hands of those who are pursuing a majoritarian cultural agenda. All minorities within India should enjoy full protection under the national laws, subject to their conformity with international human rights standards. Recognising the identity and characteristics of minorities also contributes to sharpening the focus on minorities as groups, who are distinct from the majority and dominant sections of the population in India. Principle 2 (c) provides protection to those individuals who may not wish to maintain their separate minority identity and would prefer to assimilate with the majority population, or who may be compelled to embrace membership of a minority against their free choice. This implies that no particular identity can be imposed on a given person or that persons belonging to minorities cannot force a person to belong to, or be expelled from, their group. Of particular relevance therefore is the freedom for individuals to choose whether they wish to belong or not to a minority or other group and to define their own identities. Constitutional Provisions There are few direct references in the Constitution of India that refer to the specific identities and characteristics of minorities. Article 29 of the Constitution of India refers to minorities as “any section of the citizens… having a distinct language, script or culture”. Article 16 (4) refers to the “Scheduled Castes and the Scheduled Tribes” as being distinct from the majority, and at article 25, reference is made to religious minorities, such as the Sikh, the Jain and the Buddhist.
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Regional and International Standards The issue of the recognition of the identity and characteristics of minorities is firmly rooted in international law. The recognition of national, ethnical, racial or religious groups and their right to existence is referred to at article II of the Genocide Convention. In many instruments, the protection of the existence and identity of minorities goes beyond mere physical protection to the protection of their religious, cultural and linguistic heritage essential to group identity. Article 1 of the Declaration provides for the protection of the “… existence and the national or ethnic, cultural, religious and linguistic identity of minorities”, the encouragement of “… conditions for the promotion of that identity”, and calls for “… appropriate legislative and other measures to achieve those ends”. With regard to respect and promotion of the characteristics of minorities, article 4 (2) of the Declaration stipulates that “States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards”. At article 2 (1) as well as article 27 of the International Covenant on Civil and Political Rights, persons belonging to minorities have the right to “…enjoy their own culture, to profess and practice their own religion, and to use their own language in private and in public, freely and without interference or any form of discrimination”. Article 5 of the Framework Convention calls on “…Parties to undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.” With reference to principle 3 (c) regarding the choice of whether to belong to a minority or not, article 3 (2) of the Declaration states that “No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration”. Similar language is to be found at article 3 of the Framework Convention which mentions that individuals should have the right to choose whether to be treated as a member of a minority or not.
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PRINCIPLE 4 The Promotion of Diversity and Intercultural Education Effective measures shall be taken, particularly in the fields of education, culture and the media, with a view to combating prejudices and discrimination, and to promoting tolerance, intercultural dialogue, mutual respect, understanding and cooperation among all groups. 2. Intercultural education shall enable all persons and groups within society to participate in a democratic and pluralistic society. To this end; (a) compulsory curricula should include the study of history, culture, traditions, customs, languages and practices of minorities and majorities, with a view to encouraging mutual appreciation of differences and similarities between them, and as a means of promoting intercultural understanding; (b) Intercultural education should be included in compulsory education and should be developed with the active participation of the minorities concerned, and, where appropriate, bodies representing the relevant minorities, so that they can share knowledge and perspectives about their history, culture, traditions, customs, languages and practices. Annotations India is far from being homogeneous cultural, religious, linguistic or ethnic entity. It is composed of a mosaic of minorities with a rich diversity of languages, religions, cultures and traditions. The identity and characteristics of minorities, groups and communities need to be recognised, and the linguistic, religious, ethnic and cultural diversity, as well as the diversity of opinion and the shared value systems in India should be celebrated. Such diversity is not static as the pattern of the mosaic of societies changes as identities shift and new identities develop. Respect for diversity, tolerance and understanding among
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all groups in society is an essential prerequisite of a democratic society. There is a need to emphasise the right of all social groups and communities to have their due share ensured by developing policies and promoting the principle of diversity. The aim of this principle is to strengthen social cohesion, to promote tolerance and intercultural dialogue by eliminating barriers between persons belonging different to religious, ethnic, cultural and linguistic groups through mutual respect and understanding, thereby enabling the integration of minorities into society while preserving their distinct identity and characteristics. In India, the culture, history and traditions of minority groups may be subject to distorted or false representations, especially in situations of conflict, producing low self-esteem among minorities and negative stereotypes in the wider community. The compulsory curricula tend to include only the belief, culture, history and traditions of the majority community. Intercultural education should therefore aim at, among others, eradicating the distortions and negative stereotypes of the history, culture and religion of communities, especially of the nondominant groups. Intercultural education allows both minorities and majorities to learn about and appreciate each other in ways, which make it possible for them to appreciate each other’s cultures as an enrichment of society as a whole. The importance of intercultural education as a means to promote greater tolerance, understanding and respect in minority–majority relations is crucial. Intercultural education aims at highlighting the preservation of the identity of each group in society, accompanied by the acceptance of diversity leading to understanding and tolerance. To this end, intercultural education requires that both the minority and majority learn about each other, about their specific characteristics, their respective histories, as well as about the values of tolerance and pluralism. Special incentives could be given to the educational institutions in order to encourage higher diversity in those institutions.
CONSTITUTIONAL PROVISIONS There exists almost no reference to intercultural education in the constitution of India.
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Regional and International Standards Article 6 of the Framework Convention states that “Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and cooperation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media”. Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates that “States parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among national and racial or ethnical groups….” With regard to intercultural education, article 4 (4) of the Declaration stipulates: “States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole.” Article 12 of the Framework Convention states that Parties shall, where appropriate, take measures in the field of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. In this context, the Parties shall, inter alia, provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. The Hague Recommendations Regarding the Education Rights of National Minorities (hereafter referred to as “The Hague Recommendations”) in recommendation 19 provides that “State educational authorities should ensure that the general compulsory curriculum includes the teaching of the histories, cultures and traditions of their respective national minorities”.
PRINCIPLE 5 Right of Minorities to Freedom of Religion Minorities shall enjoy the right to profess, practice, manifest or to adopt their own religion or belief and to establish their own religious
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institutions, organisations and associations for this purpose. This includes the freedom to: z
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Worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; receive or impart instruction in their own religion or belief; change one’s religion or belief; establish training schools for the faithful; teach a religion or belief in places suitable for these purposes; publish and disseminate their own religious materials, in any language or format, including in the minority language; train, appoint, elect or designate by succession appropriate religious leaders called for by their religion or belief; solicit and receive financial and other contributions to finance their own religious activities; establish, manage and maintain their own religious institutions; observe days of rest and celebrate holidays and ceremonies in accordance with the precepts of their own religion or belief.
Annotations The right of minorities to profess, practice and manifest their own religion is of particular relevance in India which is composed of a whole range of religious minorities and groups, and where religious issues and factionalism have come to dominate much of the political discourse, and have sharpened the expression of identity. Some religious minorities may identify themselves solely by their religious identity and its preservation. Others may perceive themselves as an ethnic or linguistic minority where religion is but one distinguishing feature. Furthermore, the nature of most religions is that the believers acknowledge some supernatural being, a revered teacher or Gods, to guide their lives and communities. As such, compromise can be difficult to achieve in balancing competing interests between religious minorities themselves, between minorities and majorities, and between religious minorities and the State. This situation may be exacerbated in countries where the dominant State religion pervades constitutional and legislative provisions, with little regard for the interests of religious minorities, potentially leading to widespread
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discrimination, tensions and conflict. The majority may disapprove of any individual or group converting from the majority to a minority religion, with anti-conversion sentiments reflected in a number of bills and laws. Apart from increasing anti-conversion legislative pressure, a number of family laws enactments penalise conversion by making those who convert lose the right to the guardianship of minor children. Furthermore, it is important that safeguards be provided for ensuring that freedom of religion be exercised peacefully, especially with regard to the right to receive and use funds, including from abroad for religious purposes. Constitutional Provisions With regard to the right to change one’s religion or belief, the State of Tamil Nadu and Gujarat in India have enacted laws regulating conversion from one religion to another. A number of Hindu family laws enactments of 1955–56 penalise conversion of Hindus to Christianity or Islam by making them lose the right to the guardianship of minor children, and members of the Scheduled Castes lose all benefits of the State’s affirmative action by conversion to Christianity or Islam. Regional and International Standards Article 18 of the Universal Declaration of Human Rights provides that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”. Article 27 of the International Covenant on Civil and Political Rights grants persons belonging to religious minorities the right “…to profess and practise their own religion…”. Article 2 of the Declaration stipulates that “Persons belonging to national or ethnic, religious and linguistic minorities have the right to …profess and practice their own religion”. Article 8 of the Framework Convention states that “Parties undertake to recognise that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish religious institutions, organisations and associations.”
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Article 1 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and article 18 of the International Covenant on Civil and Political Rights provide greater detail as to the content and scope of this right. They stipulate that “…this right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” Furthermore, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”
PRINCIPLE 6
Right of Minorities to Use their Own Language in Private and in Public Minorities have the right to use their own language (including their own script) freely, without interference or any form of discrimination, in private and in public, orally, in writing or in any other form. This includes the freedom for minorities to: (a) Freely express opinions and beliefs and receive and impart information in the minority language across localities, regions and frontiers; use their language in social, political and cultural gatherings, including in private or public conferences, meetings and assemblies; use their language for the production and airing of private and public radio and television programmes, and have access to broadcast time in their own language on publicly funded media; use their language in the creation, development and use of written materials, printed documents, newspapers, magazines, and other materials; use their own surnames and first names in the minority language, and enjoy official recognition thereof;
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post signs, inscriptions, commercial and other information in their own language, which can be displayed visibly to the public, and use traditional local names, street names and other topographical information intended for the public. 2. In regions and localities where minorities are present in significant numbers, or if those minorities so request and where such a request corresponds to a real need: (a) Minorities shall have the right to use their language in relations with administrative authorities at local, regional and national level, as well as contact with public services. Administrative authorities shall take the necessary measures to ensure that public services are provided also in the minority language; Minorities shall have the right to acquire civil documents and certificates both in the official and minority language, and regional and/or local public institutions shall keep the appropriate civil registers also in the minority language. 3. This principle does not in any way affect the status of the official language or languages of the State concerned, nor does it call into question the need for minorities to know or learn the official language. Annotations In India, language is both a very personal matter closely connected with identity, and an essential tool of social organisation, which, in many situations, becomes a matter of public interest. The use of minority language represents one of the principal means by which minorities can assert and preserve their identity, and the use of language bears numerous aspects of the functioning of the Indian State. Linguistic diversity in India contributes to the richness of society, and its preservation and promotion is testimony to political sensitivity, openness, diversity and pluralism. In some countries, the local authorities do not provide public services in the minority language, nor may minorities have access to civil documents and registers, as well as certificates in their own language. The mere prohibition of discrimination against minorities in the use of their language in private and in public is necessary but insufficient. Special measures need to be taken, and support needs
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to be provided, to safeguard the rights of linguistic minorities and to preserve and develop minority languages. Furthermore, the right of minorities to use their own language in private and in public involves an obligation on the part of the State to create conditions favourable for the preservation and promotion of the distinct linguistic identity of minorities. This, however, entails a commitment to provide the resources and make the necessary administrative arrangements required to effectively apply this right. There are many situations in daily life in which it is important for minorities to be able to use their own language, freely and without interference. These may include being able to speak in a minority language at home, as well as with family and friends in public places, use a minority language in social, political or cultural gatherings, and for the production and airing of radio and television programmes. It also includes producing and disseminating materials and documents in the minority language and the posting of commercial and other signs in public places. Principle 2 ensures that minorities can exercise their right to use their language before administrative authorities, and in their contacts with public services. This allows them to exercise their rights and fulfil their civic duties in conditions that respect their own modes of expression, improves communication between public authorities and minorities, promotes the minority language in the public domain, and thereby contributes to the richness and cultural wealth of multilingual societies. Specific reference is made to the concentration of a minority group in a region and the expressed wish of minorities to use their language in their relations with the authorities, as this principle calls for special measures to be taken which may entail the allocation of resources, other than those provided by the minorities themselves. With regard to the implementation of this right in India, it is important to focus on more adequate constitutional protection of minority languages which implies not only the guarantee of freedom to users of these languages but also involving an obligation of the State to create favourable conditions for the preservation and promotion of the distinct identity of minorities. In this respect, some of the lesser-used languages cannot survive without the official support from the State, including measures to maintain and promote such languages.
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Constitutional Provisions Despite the fact that Hindi in the Devanagari script has been declared the official language of India at article 343, the Constitution of India has recognised the rights of minorities to use their own language in article 29 which states that “any section of the citizens of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”. In articles 120 and 210, the Constitution also provides to some extent for the rights of minorities to use their language before the authorities, in that any Member of Parliament or the Legislature may be allowed to use his mother tongue if he cannot adequately express himself in Hindi or in English. In accordance with article 344 of the Constitution, persons representing the different languages specified in the Eighth Schedule of the Constitution, namely, Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Konkani, Malayalam, Manipuri, Marathi, Oriya, Punjabi, Sanskrit, Sindhi, Tamil, Telegu, and Urdu, may be appointed by the President to a Commission entrusted with making recommendations to the President regarding the progressive use of the Hindi language for official purposes, the restrictions on the use of the English language, and in particular with regard to any language to be used for official purposes, in proceedings of the High Court, subject, however, to previous consent of the President. To this end, particular attention is to be paid to the claims and interests of persons belonging to the non-Hindi speaking areas. With reference to the right of minorities to use their own language in their relations with administrative authorities, article 345 of the Constitution of India grants the freedom of any state of India to adopt any one or more of the languages in use in that state as the language or languages to be used for all or any of the official purposes of that state. According to article 347, “on a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a state desire the use of any language spoken by them to be recognised by that state, direct that such language shall also be officially recognised throughout that state or any part thereof for such purpose as he may specify.” However, articles 345, 347 and 350 (A) on the right to use minority languages for specified official or administrative purposes as well as for imparting primary education is discretionary, not mandatory.
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Regional and International Standards In accordance with regional and international standards, Article 19 of the International Covenant on Civil and Political Rights and article 9 of the Framework Convention provides that every person belonging to a national minority is granted the freedom to hold opinions and to receive and impart information and ideas in the minority language, or the language of one’s choice, without interference by public authorities and regardless of frontiers. Article 2 (1) of the Declaration proclaims the right of persons belonging to national minorities to “use their own language, in private and in public, freely and without interference or any form of discrimination”, and article 10 of the Framework Convention uses similar wording but adds that minorities can do so “…orally and in writing”. More specifically, article 11 of the Convention provides for the right to use surnames and first names in the minority language and the right of official recognition thereof, and stipulates that “…minority language signs, inscriptions and other information of a private nature can be displayed visibly to the public”. In addition, the right to use one’s surname and first names in the minority language and to “…display traditional local names, street names and other topographical indications intended for the public also in the minority language when there is sufficient demand for such indications” should be respected. As far as the right of minorities to use their own language in relations with the administrative authorities is concerned, article 10 of the Framework Convention, and the Oslo Recommendations Regarding the Linguistic Rights of National Minorities (hereafter referred to as the “Oslo Recommendations”) grant minorities the freedom to use their language in relations and communications with the administrative authorities. More specifically, the Oslo Recommendations at recommendation 13 stipulate that the administrative authorities shall, wherever possible, ensure that public services are provided also in the language of the national minority, and that regional and/or local public institutions shall keep the appropriate civil registers also in the language of the national minority. They further grant persons belonging to a national minority the right to acquire civil documents and certificates both in the official language or languages of the State and in the language of the national minority in question from regional
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and/or local public institutions, and ensure that elected members of regional and local governmental bodies can also use the language of the national minority during activities relating to these bodies. With reference to the media, article 9 of the Framework Convention, prohibits States from discriminating against minorities in their access to the media, and stipulates that “ …the creation and the use of printed media…” shall not be hindered and that the possibility be granted “…of creating and using their own media” with regard to sound radio and television broadcasting. Additional details are provided in the Oslo Recommendations, which state in recommendations 8, 9 and 10 that “Persons belonging to national minorities have the right to establish and maintain their own minority language media”. They should also “…have access to broadcast time in their own language on publicly funded media, and the independent nature of the programming of public and private media in the language(s) of national minorities shall be safeguarded. Public media editorial boards overseeing the content and orientation of programming should be independent and include persons belonging to national minorities serving in their independent capacity.”
PRINCIPLE 7 The Right of Minorities to be Taught their Language and have Instruction in their Language 1. Minorities have the right to be taught their language and to receive instruction in their language. To this end, the following measures may be taken: z
z
z
to make available kindergarten, pre-school, primary, secondary, university, higher and vocational education in the minority language; to make available a substantial part of primary, secondary and vocational education in the minority language; to teach the minority language as part of the curriculum of primary, secondary, university, higher and vocational education.
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2. This principle shall not prejudice the learning of the official language or the teaching of this language. Annotations The right of every person belonging to a minority to learn his or her minority language represents one of the principal means by which minority identity can be asserted and preserved. Although this principle refers to measures to be taken for minorities to be taught their language and have instruction in their language, the nature of these measures will depend on the context of the particular situation, including whether the number of students in part of a territory warrant such measures, there is a demand for such measures, and the State is able to commit the necessary resources to respond to such demands. In cases where the language of the minority is a territorial language traditionally spoken and used by many in the region of the country, pre-school and primary school education should, ideally, be in the child’s own language. In regard to non-territorial languages spoken traditionally by a minority within a country, minorities should, as a minimum, have an opportunity to learn their mother tongue. In this regard, minorities have a right, like others, to establish their private institutions, where the minority language is the main language of instruction. Constitutional Provisions According to article 350 A of the Constitution of India, “It shall be the endeavour of every state and of every local authority within the state to provide adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups, and the President may issue such directions to any state as he considers necessary or proper for securing the provision of such facilities.” Regional and International Standards Article 4 (3) of the Declaration stipulates that, “States should take appropriate measures so that, wherever possible, persons belonging to
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minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue”. In article 14 of the Framework Convention, “The Parties undertake to recognise that every person belonging to a minority has the right to learn his or her minority language.” In the same article, minorities are granted the right to have adequate opportunities for being taught the minority language or for receiving instruction in this language. Specific mention is made that this right shall be implemented without prejudice to the learning of the official language or the teaching in this language. In recommendations 11 to 13 of the Hague Recommendations suggestions are made that pre-school, kindergarten and primary school should ideally be taught in the minority language. “In secondary school a substantial part of the curriculum should be taught through the medium of the minority language.” In recommendation 15, “Vocational training in the minority language should be made accessible in specific subjects…” and recommendation 17 suggests that minorities “…should have access to tertiary education in their own language…” The most detailed treaty in this respect is the European Charter for Regional or Minority Languages which provides, in article 8, a sliding scale regarding the extent to which minorities may be taught their own language and have instruction in their own language. The scale ranges from pre-school education to be made available in minority languages to ensuring that a substantial part of pre-school education is available in the relevant language. It also ranges from making primary, secondary, university education, continuing education and technical and vocational training available in the minority language to teaching the minority language as part of the curriculum.
PRINCIPLE 8 Right of Minorities to Establish and Manage their Own Unions, Associations and Institutions Minorities shall have the right to establish and manage their own unions, non-governmental organisations, associations and institutions, in all fields including education, religion, culture, language, politics and labour, and to associate with any of these at local, national, regional and international levels. To this end:
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Any form of discrimination or interference in the establishment and maintenance of such institutions is prohibited; minorities shall have the freedom to seek funding for such institutions from the State, local, regional and international sources and from the private sector. Annotations This principle allows for persons belonging to minorities to set up any union, non-governmental organization, association and institution they may want, and associate with any of these at local, national, regional and international levels. Granting minorities the right to freely associate and to establish and maintain their own institutions contributes to their effective participation in public and political life, and to the maintenance and development of their own identity and characteristics. Such institutions should be established and maintained freely, without interference or discrimination. Minority schools run by minorities themselves are expected to conform to basic national standards applicable to all schools, including rules regarding compulsory schooling, compulsory curricula requirements, and teaching standards, and shall be subjected to normal supervisory standards. Minorities should also have the right to seek sources of funding for these institutions from the budget of the State, local, regional or international sources or the private sector. Constitutional Provisions In accordance with article 30 of the Constitution of India, all religious or linguistic minorities “…shall have the right to establish and administer educational institutions of their choice”. Furthermore, the Constitution provides for the possibility of the State granting aid to such educational institutions, without discrimination “…against any educational institution on the grounds that it is under the management of a minority, whether based on religion or language”. In practice, the rights of minority educational institutions under article 30 are subjected to unreasonable restrictions especially in their admissions policy, requiring admission of a certain percentage of non-minority students as obligatory for reasons of national integration, whereas other
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educational institutions are not required to meet the same criteria and admit a fair number of minority students for the same purpose. Regional and International Standards Article 13.4 of the International Covenant on Economic, Social and Cultural Rights refers to the liberty “…of individuals and bodies to establish and direct educational institutions” and article 6 (b) of the Declaration on Religious Intolerance specifies that freedom of religion or belief includes the freedom to “establish and maintain appropriate charitable or humanitarian institutions”. Article 2 (4) of the Declaration stipulates: “Persons belonging to minorities have the right to establish and maintain their own associations”. In article 13 of the Framework Convention, “Within the framework of their education systems, the Parties shall recognise that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments.” Recommendation 6 of the Oslo Recommendations grants minorities the right “…to establish and manage their own non-governmental organisations, associations and institutions”.
PRINCIPLE 9 Effective Participation of Minorities in Public and Political Life Minorities have the right, irrespective of citizenship or other status, to effectively participate in cultural, social, economic and political life, and in public affairs, in particular in those that affect them directly. This includes the right of minorities: z
z
to be consulted by means of appropriate procedures and through their representative institutions when legislation or administrative measures are being considered which affect them directly; to be involved in the preparation, implementation and assessment of national and regional programmes and plans which are likely to affect them directly;
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to effectively participate in decision-making processes and elect bodies at local, national and regional levels; to vote and be elected at genuine periodic elections; to be effectively represented; to have access to, and hold, public office.
Minorities have the right to participate in the conduct of public and political affairs, directly or through freely chosen representatives. To this end, the following measures may be taken: z z z
z z z
reduced requirement for the registration of political parties; lowered threshold for entering parliament; special representation through reserved seats in parliament, and other elected bodies of the national society; proportional representation; favourable delimitation of constituencies; creation of minority administrative and advisory bodies in particular with regard to education, culture and religion, such as minority parliaments, advisory councils and round tables.
The imposition of requirements on minorities to freely exercise their right to effective participation shall be prohibited, except for linguistic requirements necessary to hold public office; Measures which alter the proportions of the population in areas inhabited by minorities with the aim of influencing minority representation in elections or for other political purposes, and/or restrict the rights and freedoms flowing from these principles, are prohibited. Examples of such measures include expropriation, evictions, expulsions or redrawing of electoral boundaries. Annotations Effective participation of minorities in cultural, religious, social, economic, public and political life, as well as in decisions that affect them, including in the legislative and administrative sectors, aims at encouraging real equality within society. It represents a shift from mere protection of minorities to guaranteeing representation by all groups. Special measures are often required to facilitate the effective
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participation, through substantive contribution, of minorities in decision-making. Effective participation is necessary to ensure that minorities are respected, recognised and heard. The most fundamental requirements of this right is to ensure that minorities enjoy the right to non-discrimination, including on the basis of citizenship or other status, as well as to vote and to be elected. However, this is often insufficient to enable minorities to effectively participate, and special measures are required. One of the key issues of participation of minorities in India is their representation in all aspects of society. While it is essential that minorities and groups be given opportunities for effective participation, no single formula exists that is appropriate to all minority situations in India. Forms of participation may therefore require adaptation to the variety of needs and aspirations of different minorities as well as to their size and distribution, and may involve the creation of ethnic, cultural and religious associations and societies, political parties, advisory and decision-making bodies, and minority representation in parliament and other elected bodies within national society. In India, minorities may not have the same access to holding public office as the majority or dominant population. Furthermore, minorities tend to be under-represented in public and political life, as their numbers are lower, implying that they are often outvoted in terms of their representation and their potential for being heard, and cannot elect the number of representatives that reflect the actual percentage of the minority population. In India, minorities are persistently under-represented in public and political bodies. In addition, electoral boundaries may be manipulated so that, even when a minority represents a fairly large percentage of the population in a given region, its members are divided between a number of districts restricting their ability to elect even a minimal number of representatives who belong to minorities. The Sachar Committee Report indicates that, the Muslim participation is lower in professional, technical, clerical and managerial work. In proportion to their population, the Muslims are relatively much fewer in the formal sector of the Indian economy even after sixty years of de-colonised existence of the country. The Muslims are few in number in both public and private sector employment that provide some amount of social security, status and power. Moreover, the number of Muslim members in all the policy-making bodies in
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India is not only inadequate, according to the Sachar Committee Report, but, in fact, has strikingly declined in Parliament and most of the state assemblies. The pattern seems to be the same at the levels of the local government. The most disturbing fact is that several constituencies in the state assemblies with sizeable Muslim population have been declared as reserved for Scheduled Castes (SC), although many of them do not have high SC population. The measures to ensure effective participation of minorities in public and political life may include for example: a minimum number of seats for representatives of minorities in parliament and other elected bodies; proportional representational elections in which seats are allocated according to the vote cast; the lowering of thresholds for minority party representation, thereby allowing minorities to participate in the legislature and other elected bodies; reduced requirements for the registration of a minority party in elections; favourable delimitations of constituencies along minority lines, especially in countries where such minorities may be scattered across the territory, granting adequate opportunities for minority seats; and, the creation of administrative and advisory bodies which may serve advisory functions regarding matters, including policies and programmes, which concern minorities or decisions which affect them. Constitutional Provisions Article 325 of the Constitution of India ensures that no person shall be ineligible for inclusion in the general electoral roll on grounds of religion, race, caste, sex or any of them. Section 125 of the Representation of Peoples Act further provides that any persons who in connection with an election promotes or attempts to promote on the grounds of religion, race, caste, community or language feelings of enmity shall be punishable with imprisonment as well as fined. According to article 16 (4) and (4A) of the Constitution, the State may make provisions for the reservation of appointments or posts in favour of any backward class of citizens, Scheduled Castes and Scheduled Tribes, who, in the opinion of the State, are not adequately represented in the services under the state. In the Mandal controversy, the Supreme Court affirmed that reservations for ‘Backward Classes’ and ‘Other Backward Classes’ were part of the doctrine of equality
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and not an exception to it, and that access to government jobs was a salutary form of empowerment for disadvantaged people and those discriminated against with no access to such power.3 Regional and International Standards Article 25 of the International Covenant on Civil and Political Rights stipulates that every citizen shall have the right and the opportunity without distinctions and without unreasonable restrictions (a) “to take part in the conduct of public affairs, directly or through freely chosen representatives”, (b) “to vote and be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”, (c) “to have access, on general terms of equality, to public service in his country”. Article 2 (2) and (3) of the Declaration states that, “Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life” and they have “…the right to participate effectively in decisions on the national and, where appropriate, regional level, concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation”. In article 4 (5), “States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development of their country.” Article 5 (1) and (2) states that national policies and programmes as well as programmes of cooperation and assistance among States should be planned with “due regard for the legitimate interests of persons belonging to minorities”. Recommendation 9 of the Lund Recommendations on the Effective Participation of National Minorities in Public Life (hereafter referred to as the “Lund Recommendations”), states that the electoral system should facilitate minority representation and influence, and recommendation 6 stipulates that minorities should have an effective voice at central government which may include special representation through a reserved number of seats in parliament, on the courts, and allocated positions on advisory bodies and cabinet, mechanisms to ensure that minority interests are considered within relevant ministries, and that minorities participate in civil service. Article 15 of the Framework Convention provides that, “The Parties shall create the conditions necessary for the effective participation
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of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.” At article 16 of the Convention, “The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present Convention.” According to the explanatory report to the Convention, examples of such measures might include expropriation, evictions and expulsions or redrawing administrative borders with a view to restricting the enjoyment of such rights and freedoms (i.e. gerrymandering).
PRINCIPLE 10 Devolution of Power, Autonomy and Federalism 1. Consideration shall be given to arrangements, which enhance the capacity of minorities to regulate their affairs and take their decisions, in their own interests and in accordance to local conditions. 2. Where minorities are scattered throughout the territory or part thereof, such arrangements may include self-administration on a non-territorial basis by a minority, of matters which are essential to its particular identity. 3. In geographic areas where minorities are concentrated and where they constitute a majority, such arrangements may include: decentralised or local forms of self-government or autonomous arrangements on a territorial and democratic basis, including consultative, legislative and executive bodies chosen through free and periodic elections without discrimination; a federal system of government. Annotations In India, devolution of power, autonomy and federalism may be necessary to ensure effective participation of minorities in decisionmaking processes both at the State and sub-State level. These
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arrangements, which affect the political organisation of multicultural States, allow for the accommodation of minorities and a degree of independence of minority communities in managing a substantial share of public affairs under their own responsibility and in their own interests, in accordance with their circumstances at the local level. Different arrangements may be applied to allow for a different degree of independence of minorities in managing their own affairs, and may range from decentralisation in administrative matters, to self-government with certain legislative powers to a virtually independent administrative, legislative and judicial system. A federal system is somewhat different as it is integral to the State structure and in the functioning of the State, in particular as representation is constitutionally guaranteed at all levels of the structure, with the allocation of powers shared between the Centre and the federal entities which all work towards common aims through compromise. Such arrangements imply the sharing of power between the Centre and its parts, while preserving the unity of States, with the sub-unit granted a certain degree of authority, which cannot be overruled or restricted by the Centre. These arrangements should, therefore, be established by legislation or preferably by the Constitution. Furthermore, a prerequisite for an efficient functioning of any of such arrangements is the provision of sufficient resources, either through financial support from central government or from the income of the minority groups themselves. Special attention needs to be paid to the fact that territorial arrangements may only benefit the minority group concerned, and not those persons living in the same territory but who do not belong to the said minority. This situation of a minority within a minority may lead to added disparities between groups as well as to widespread discrimination and even repression in some cases. Arrangements therefore need to ensure that the autonomous entities respect and promote human rights, including minority rights. Constitutional Provisions The members of the Constituent Assembly in India adopted the idea of federalism to assuage communal, ethnic and cultural sectarianism. Federalism was enshrined in the Constitution of India in the form of a written Constitution, a dual polity, a division of legislative and
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executive powers between the Centre and the States, an independent judiciary, and supremacy of the Constitution and electoral rules. A range of formal institutions such as state and national legislatures, National Finance Commission, Planning Commission, National Development Council, Inter-state Council and numerous other inter-state coordinating bodies further embodied the federal political structure in the Constitution of India. In India, the political struggles for autonomy led to a wide variety of constitutional forms.3 The Constitution of India provides special status for certain states such as Jammu and Kashmir, Nagaland, Sikkim, Assam, Manipur, Arunachal Pradesh in Articles 370 and 371H. Under the special protection clause in Article 371, tribal customary laws, procedures, and land rights are protected. Part XVI of the Constitution ensures special provisions for Scheduled Castes, Scheduled Tribes, and Other Backward Classes. There is also a provision for Autonomous District Councils in Scheduled Tribe-dominated areas of India. The 73rd and 74th Amendments to the Constitution ensured devolution of powers at village and town levels. Similarly, the Constitution arranged for financial autonomy of the states through constitutionally prescribed division of resources and the national level Finance Commission. Apart from creating new states, a range of accords and unilateral measures on Darjeeling, Bodoland, Ladakh, North Cachar Hills, Karbi Anglong, Khasi Hills, Jayantia Hills, Tripura Tribal Areas, Chakma Autonomous District Councils have been created either as autonomous areas or district councils under the Fifth and Sixth Schedules of the Constitution. The Constitution of India provides for the subdivision of India into federal entities generally according to linguistic lines. Regional and International Standards The political notion of autonomy is caught between various legal ideas of the right to self-determination, minority rights and minority protection, obligations of the state to offer autonomy to the indigenous peoples. As for regional and international standards, the Lund Recommendations, at recommendation 14 states that, “effective participation of minorities in public life may call for non-territorial or territorial arrangements of self-governance or a combination thereof”. At recommendation 24, reference is made to, “additional
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dispute resolution mechanisms, such as negotiation, fact finding, mediation, arbitration, an ombudsman for national minorities, and special commissions, which can serve as focal points and mechanisms for the resolution of grievances about governance issues.” Paragraph 35 of the Document of the Copenhagen Meeting of the CSCE makes reference to the possibility of creating an environment that would be conducive to the participation of national minorities in public affairs, in their own language, by establishing “appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of minorities in accordance with the policies of the State concerned”. Article 3 of the European Charter of Local Self-Government, states that “Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.” Article 9 of the Charter provides that “Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.”
PRINCIPLE 11 Effective Implementation and Redress 1. Institutions shall be established, and where they exist, strengthened, with the mandate to effectively implement these principles and other rights relevant to minorities, address violations of minority rights and provide the necessary redress. These may include national institutions such as human rights commissions, commissioners, and ombudspersons. In particular, these institutions shall: z
z
z
be accessible to all and their procedures shall be facilitated to provide easy access for minorities; be independent and autonomous and dedicated to upholding democracy, human rights, the rule of law, and diversity; provide redress including effective remedies that allow for the implementation of minority rights, sanctioning of perpetrators of violations, and compensation for the victims.
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2. Minorities have the right to effective remedy and compensation for violations of their rights, and, to this end, shall have easy access to all courts and tribunals, as well as to conciliation, mediation and dispute resolution mechanisms, including through legal assistance; 3. Minorities shall have easy access to regional and international tribunals, as well as to the United Nations treaty bodies and complaints procedures. Annotations Human rights acquire real meaning for minorities when the public authorities of the State establish mechanisms to ensure that the rights guaranteed in international conventions and declarations or in domestic legislation, are effectively implemented and protected. In many States, normal procedures are complex, costly and slow and may therefore not be easily accessible to minorities. When confronted with violations of their rights, minorities must often overcome significant obstacles in order to access the judicial system and other domestic human rights protection mechanisms. Furthermore, in some cases, the judicial process may be ineffective in addressing violations of minority rights and granting redress and compensation. One of the challenges is to effectively enforce legal and other provisions relating to minorities and ensure that the rights of minorities are translated into reality at the national level. It may therefore be useful to consider, as a complement to judicial procedures, the establishment and strengthening of independent national institutions, which are usually able to provide quicker and less expensive recourses and are as such more accessible to minorities. When domestic remedies for violations have been exhausted, concerns can be brought to the attention of United Nations mechanisms and procedures. In India, the constitutional and legal guarantees to protect the rights of minorities remain all too often unfulfilled. Violations of the rights of minorities are a common feature, with widespread discrimination based on caste, race, religion and ethnic origin. Some of the institutions, which have been established to safeguard the rights of minorities, have limited powers and functions, and have proved ineffective in protecting minorities. The electoral system is systematically undermined and the judiciary and legal profession inspire little confidence, resulting in few cases involving minorities
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being brought before the courts, and the few cases that are prosecuted are being delayed for years. Many violations fail to be investigated, perpetrators have not been brought to justice, and redress and compensation remain unattainable. Constitutional Provisions At article 350, the Constitution of India stipulates: “Every person shall be entitled to submit a representation for the redress of any grievance to any officer, or authority of the Union or a state in any of the languages used in the Union or in the state, as the case may be.” Article 350B provides for a “…Special Officer for linguistic minorities to be appointed by the President” who shall have the duty to “… investigate all matters relating to the safeguards provided for linguistic minorities under this constitution and report to the President”. Furthermore, India has also established human rights institutions, which aim to promote and protect the rights of minorities and to address violations and injustices. These include, among others: the National Commission for Scheduled Castes and Scheduled Tribes, the National Human Rights Commission and the National Commission for Minorities of India. Their mandates and responsibilities vary, but generally they are responsible for conciliating, monitoring, investigating and advising the Government on human rights, including minority rights, and usually have the power to recommend and mediate. Regional and International Standards Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination declares: “States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention…”. According to the Oslo Recommendations, in recommendation 16, “States in which persons belonging to national minorities live should ensure that these persons have, in addition to appropriate judicial recourses, access to independent national institutions such as ombudspersons or human rights commissions, in cases where they feel that their linguistic rights have been violated.”
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ANNEX A References to International and Regional Human Rights Instruments (In Order of Appearance in the Document) Convention on the Prevention and Punishment of the Crime of Genocide (UN) Guiding Principles on Internal Displacement (UN) Geneva Conventions and Additional Protocol II (UN) Universal Declaration of Human Rights (UN) International Covenant on Civil and Political Rights (UN) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN) Framework Convention for the Protection of National Minorities (OSCE) Convention on the Elimination of All Forms of Racial Discrimination (UN) European Charter for Regional or Minority Languages (Council of Europe) Hague Recommendations Regarding the Education Rights of National Minorities (Foundation on Inter-Ethnic Relations) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN) Oslo Recommendations Regarding the Linguistic Rights of National Minorities (Foundation on Inter-Ethnic Relations) Lund Recommendations on the Effective Participation of National Minorities in Public Life (Foundation on Inter-Ethnic Relations) Document of the Copenhagen meeting of the Conference on the Human Dimension of the CSCE (now OSCE) European Charter of Local Self-Government (Council of Europe)
NOTES
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REFERENCES
1. General Comment 18 of the Human Rights Committee on non-discrimination under the International Covenant on Civil and Political Rights, HRI/GEN/1/ Rev.2 of 29 March 1996.
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2. R. Dhavan and F.S. Nariman, 2000, “The Supreme Court and Group Life: Religious Freedom, Minority Group, and Disadvantaged Communities”, in B.N. Kirpal et al. (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India, Oxford University Press, Oxford, p. 271. 3. For details, please see Ranabir Samaddar (ed.), 2005. The Politics of Autonomy: Indian Experiences, Sage, New Delhi.
Gulamiya Ab Hum Nahi Bajeibo
SECTION IV
Women and Marginality: An Issue of Gender Justice
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Introduction
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he notion of ‘Justice’ is a social construct and its manifestation in post-colonial democracies is through various ideas, institutions and practices that are hierarchical in nature and function. These hierarchies reproduce certain forms of power relations that are responsible for perpetuation of certain sets of ideas and practices. These sets of ideas and practices contain and produce such notions of denial of justice which are borne out of power matrixes. It is in this context, positions of marginality are important locations and are grounds to understand how marginalities produce ideas of denial of justice. Lack of access to means of representation/resources/survival means such as education, health, etc., results in marginalisation and gender is one such important location of means of denial. State formation, in India, as elsewhere, rapidly ignored the voices of the marginals showing how a democratic set-up empowering the national collective also produces deficits and marginality for those who refuse to belong to it or are left out of it. It is a playground of the dominant—certainly male, definitely majoritarian. The thing to note here is that while the Constitution has provisions of justice in its various articles and clauses, unlike in the case of rights, justice does not have a compact formulation, even though the Preamble, and earlier the Objectives Resolutions of the Constituent Assembly, had justice as one of the founding provisions. The Constitution, therefore, needs a responsive and sensitive revision of the concepts of citizenship that is inclusive of all these marginal categories, including gender. But marginalisation of the Indian women has been a reality over centuries. It was social marginalisation of limiting women into ‘closed spaces’ that excluded them from the decision-making process, which remained a man’s domain. It is true, however, that some women had played a role within the private spaces exclusively allocated to them. Even though the nationalist movement encouraged women to take part in the freedom struggle and in demonstrations, this access was limited to a certain section of women per say. It was a liminal or transient stage for the larger national ideal, which required the strength
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of women, both physical and numerical to make the struggle more meaningful. It broke the traditional barriers for many educated as well as illiterate women who took part in this ‘march to freedom’. Among the many achievements of the movement, the most significant were the constitutional guarantees of equal rights for women and universal adult suffrage in independent India. However, these guarantees did little to bring about social and material change in the lives of most Indian women, and sustain the spirit of achievement that women felt during the freedom struggle. Later, sporadic yet intense womenled struggles were witnessed in various parts of India. They, in their own way, challenged the deep-rooted patriarchy, which still remains ingrained among Indian social and political structures, influencing the political and social institutions and determining what opportunities and how much opportunities should be given to women. The great leap forward that India is ambitiously poised to take in the world’s politico-economic stage also needs to be read with caution. Literacy rates for women are significantly lower than that for men; the 2000 UN Development Program (UNDP) Report for India found that 38 per cent of women were literate, compared with 66 per cent of men. Yet, a silent revolution is taking place. Women from across small towns to big cities are becoming mobile and economically independent, if not self-sufficient. This is however not happening out of any enlightened planning. Also, India has a very poor tale of domestic violence. Education does nothing to deter the incidence of violence against the females. A BBC news report carrying the story on the The Protection of Women from Domestic Violence Act, 2005 reported junior minister for women and child development, Renuka Chowdhury, telling the Press Trust of India news agency: ‘We have been trying for long to protect women from domestic violence. In India alone, around 70 per cent of women are victims of these violent acts in one or the other form’.1 The demand of the Indian economy with the proliferation of globalisation into the Indian countryside has led to newer negotiations and ensuing conflicts (sometimes subtle at other times more obvious) between patriarchy and the economic structure where women are the casualty. For women to be empowered as equal right-bearing citizens of the country, the sustained marginalisation of women from the political–public sphere has to alter. Though women have been fighting for 33 per cent reservation in the parliament, uniting across party lines,
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it cannot be assumed that more women in public offices would mean a healthier and improved arrangement for women in general. Yet, there are important reasons for demanding greater representation of women in political life (not just in the parliament, but also in other decision-making roles). The greater the number of women in public office or visible in public space articulating interests and seen to be wielding power, the more the gender hierarchy in public life could become dislocated and interrupted. The three articles chosen for this segment of the compendium try to bring out in a nutshell the marginalisation of Indian women legally as well as socially as mentioned in article 1, which is a part of a report published by the Human Rights Law Network. The second article is the National Policy for the Empowerment of Women, which aims to bring about the advancement, development and empowerment of women. The Policy will be widely disseminated so as to encourage active participation of all stakeholders for achieving its goals. The third article explores statelessness and the insecurities that it inevitably brings in the lives of stateless women, as trafficking becomes their means of survival, exploitation and negotiation. Referring to the South Asian experience, stateless women become further insecure because they can be displaced any time the state or the majority community so desire. When displaced, they are destabilised from their moorings and such destabilisation is made an occasion for their sexual exploitation and women are ready prey for traffickers. Gender is a social construct and the gendered streotypes of the constructions have been internalised by the society. For any society to make progress, it is important to go beyond these constructions and take a critical look. Gender, and particularly the role of women, is widely being recognised as vitally important to national and international development issue(s). This often means a focus on gender-equality, ensuring participation in economic and political processes and greater role in decision-making procedures. One possible way would be to include interests, needs, experiences and visions of women in the definition of development approaches, policies and programmes.
NOTE 1. “India tackles domestic violence” in http:/news.bbc.co.uk/2/hi/south_ asia/6086334.stm//last accessed on 20 May 2008
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15 Gender Women and HIV∗ LAYA MEDHINI, DIPIKA JAIN AND COLIN GONZALVES
THE FEMINIZATION
OF THE
EPIDEMIC
F
or women throughout the world, safety (that is freedom from physical sexual verbal, psychological and other forms of violence as well as the lack of economic freedom) is an issue that dominates all others in their lives. UNAIDS in July 2006 reports that almost half of the adults living with HIV and AIDS today are women. Over the past two years, the number of women and girls infected with HIV has increased in every region of the world, with rates rising particularly rapidly in Eastern Europe, Asia, and Latin America. In sub-Saharan Africa, women and girls already make up almost 60 per cent of adults living with HIV. Women comprise an increasing proportion of people living with HIV/AIDS worldwide. Global prevalence among women has accelerated from 41 per cent of infected adults in 1997 to 50 per cent in 2002. Among youth, this gender gap is exasperated. Seventy-five per cent of all young people living with HIV are female. Most of the women who suffer from HIV/AIDS are in the prime of their productive lives. Mere identification as HIV positive often results in discrimination, gender-based violence, unemployment, abandonment ∗ This report has earlier been published in Medhini, Laya, Dipika Jain and Colin Gonzalves (eds) 2007. ‘HIV/AIDS & The Law’ Ch 8 ‘Gender: Women and HIV’, New Delhi : Human Rights Law Network.
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and consequently and simultaneously the loss of human rights. The epidemic affects young and old alike taking its toll on those who fall ill and those who survive, whether a teenager who barters sexual favours for school fees to a grandmother who struggles to care for her orphaned grandchildren. The feminisation of the epidemic brings into sharp contrast the disparity and discrimination that shapes people’s conduct and limit the options women have to protect themselves. Many women are very vulnerable to HIV even though they do not practise high-risk behaviour. In some places, ‘marriage itself is a risk factor’. Despite this alarming trend, women still know, less than men about even the mere basics like how HIV/AID transmitted and how they can prevent infection. What little they do know is often made useless by the discrimination and violence they face and their relative powerlessness to refuse sex or negotiate safe sex, especially in the context of marriage. UNFPA states that though recent evidence shows that sustained, intensive programmes in diverse settings are reducing HIV incidence through behaviour changes, such as increased use of condoms, delayed sexual initiation and fewer sexual partners. Nevertheless infection rates are still increasing globally. Gender inequities are a primary cause of making men and women vulnerable to HIV/AIDS. Many HIV strategies assume an idealized world in which the belief is that all are equal and free to make empowered choices, and opt to say no to sex, stay faithful to one’s partner or use condoms as a means of protection. Reality though presents a different picture—women and girls face many HIV-related risk factors and vulnerabilities that men do not. Some of these are embedded in the social relations and economic realities of their societies and are not altered. In many places, male identity is directly linked to sexual performance and safer sex could be perceived a threat to masculinity. Young men, in particular, may feel pressured to take risks to assert their male identity. Risk taking by girls and young women is marked by unequal gender relations, and unequal access to resources assets, income opportunities and social power. Infrastructural support must be laid down to ensure sustainable livelihoods for women and girls, especially those living in female-headed households, if they are to be able to protect themselves against HIV infection and deal with its impact. Gender is now acknowledged as an inextricable part of the HIV/ AIDS equation.6 Young women are disproportionately vulnerable
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to infection; elderly women and young girls are disproportionately affected by the burden of care-giving. Gender inequality and poor respect for the human rights of women and girls are key factors in the HIV/AIDS epidemic: both from the point of view of effectiveness and from the call for social justice. The complex relationship between gender, health, development, and socio-economic status means that gender, and women and men’s vulnerabilities to HIV/AIDS must be tackled as cross-cutting issues, through the health sector and through education, the media, and public policy.
HUMAN RIGHTS
AND
HIV/AIDS
Poor respect for human rights increases the prevalence and worsens the impact of HIV/AIDS. For those who are denied or have only poor access to information, education and health care services, the risk of contracting HIV is increased. The ability of any individual to access their human rights is closely linked with the spread of HIV/AIDS and its impact on people and communities around the world. The spread of HIV/AIDS also undermines progress in the realization of human rights, as it places tremendous stress on the country’s resources, and undermines attempts to provide a full complement of services guaranteed as rights to all citizens. The unequal incidence of HIV/ AIDS among certain groups in many countries like women and girls, those living in poverty, illustrates the broad correlation between access to basic rights and risk from sexual abuse and HIV/AIDS. The vulnerability of women and girls to HIV and AIDS is compounded by other human rights issues including lack of adequate access to the information, education and services necessary to ensure sexual health; which may suffer by sexual violence; by harmful traditional or customary practices affecting the reproductive health of women and children (such as early and forced marriage); and by lack of legal capacity and equality in family matters. Stigma and discrimination associated with HIV/AIDS reinforces prejudices, discrimination and inequalities related to gender, poverty, sexuality, disability and ethnicity. This contributes to the vulnerability to infection of minority or otherwise weaker groups, as those members
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at risk or affected by HIV and AIDS may be reluctant to contact health and social services. The result is that those most in need of information, education and counselling will not benefit even where these services are available. International human rights law guarantees the right to equal protection before the law and places emphasis on freedom from discrimination on grounds including sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. States’ obligations are defined in a series of international treaties with respect to equality and non-discrimination, and to the promotion and protection of all human rights. These treaties provide the legal framework for a rights-based approach in relation to HIV/AIDS vital to HIV/AIDS prevention and to ensuring equitable access to care, treatment and support for those infected and affected by HIV/AIDS. Equality and non-discrimination act as corner stones for all human rights treaties and framework. The countries that have succeeded in slowing the rate of HIV/AIDS infection have done so by combating gender inequalities, promoting access to information and services as a right regardless of sexuality, marital status or gender. The UN General Assembly Declaration of Commitment on HIV/AIDS of June 2001 places human rights at the heart of the international response to the epidemic and sets goals and targets based on human rights law in a number of key areas, calling on states to take adequate measures to eliminate discrimination against people living with HIV/AIDS as well as people of vulnerable groups. HIV/AIDS responses should contain strategies for guaranteeing men and women equal access to their full rights as citizens, address equality and non-discrimination in areas such as education, political rights, marriage and family, property, employment, health and protection from violence. The International Guidelines on HIV/AIDS and Human Rights provides a framework for a rights-based response to the HIV/AIDS epidemic by outlining how human rights standards apply in the context of HIV/AIDS and suggesting legislative and other practical measures to be undertaken at the national level. Guideline 8 suggests that, ‘States should, in collaboration with and through the community, promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups’.
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In line with the Guidelines, a gender-sensitive human rights approach against HIV/AIDS should take into account: z
z
z
z
Combating stigma and discrimination in relation to gender, poverty and HIV/AIDS. This includes the promotion of education and training programmes designed to counter discrimination and stigma associated with gender and with HIV/ AIDS. Promote the human rights of women including equal access to legal rights and status within the family, in particular— inheritance, divorce, child custody, ownership of property, employment rights and such. Combating sexual and economic exploitation of women and girls, including through the development and implementation of laws, policies, strategies and practices. Promote the right of everyone irrespective of gender to enjoy the highest attainable standard of mental and physical health, including access to appropriate information, empowering women to make decisions related to prevention and treatment, empowering women to make decisions regarding sexual and reproductive health, freedom from violence and discrimination, access to VCTCs, implement successful strategies for pregnant women to prevent mother to child transmission, and help provide care, treatment and support to women and girls, infants and their families affected by HIV/AIDS.
FACTORS FUELLING THE FEMINISATION OF THE EPIDEMIC This year, UNAIDS has declared India to be home to the highest population of people living with HIV in the world. With its exponential growth, the epidemic is no longer confined to men and high-risk populations. Women are among the fastest growing groups of the newly infected. Estimates show that 39 per cent of HIV positive adults in India are women, and the number of young women, aged 15–24, living with HIV/AIDS is twice that of young men. In developing countries like India, women are more vulnerable to the infection, biologically as well as socially. A wife, as a caregiver,
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homemaker, and child-raiser, is often unable to negotiate safe sex thereby at risk of acquiring the virus. She also has to nurse her positive husband; and provide for their children in absence of her husband’s income. Most of the family’s caregivers are women; grandmothers and sisters must look after children when a parent or guardian passes away. The children, who are left orphan, face discrimination in their immediate environments of schools and communities. In an age where the community of the HIV positive is becoming increasingly female and increasingly vulnerable, women are still too often overlooked. There are several biological factors that place women at great risk to the HIV infection. As a woman, her physiology compounds her vulnerability. A woman is four times more likely to contract HIV from a man than vice versa. Women have a larger surface area of mucosa that is exposed to their partner’s semen for longer duration, during intercourse and the semen contains higher levels of HIV than vaginal fluids. The gender dimensions of HIV/AIDS penetrate a range of issues— economic, legal, cultural, political, and the sexual status of women in society. Due to the already existing gender inequalities, HIV/AIDS exacerbates the situation of women translating existing differences into tougher conditions for women on the ground which in turn fuels the epidemic. It creates multiple mechanisms that amplifies women’s vulnerability to not just being at risk to the virus biologically but also when coping and caring for those affected by it. These linkages manifest themselves not only as mechanisms of vulnerability but also become factors that fuel the spread of HIV/AIDS. The determinants of the HIV/AIDS infection can be grouped into macro level, micro level, cultural and biological factors, and provides an overview of the different complex interconnected factors that form the context of vulnerability at the individual level as well as the trajectory of HIV/AIDS at the structural level.
THE COMPLEX INTERPLAY BETWEEN GENDER VIOLENCE, ORPHANS AND HIV/AIDS Challenges and gender based inequity reinforce each other in a variety of ways. First, girl orphans being both girls and orphans are doubly vulnerable and stand the risk of being exposed to sexual violence or abuse. Girls have lower access to education and health services, while
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it is understood that all orphans are marginalized in their homes, community and are at greater risk of poverty. Second, women are major players in the care continuum where they care for the sick, the elderly and orphans. Female households are more likely to be poor than male headed households and in the case of Africa it has been seen that for women, taking in orphans increases the already overwhelming burden of care. This results in a downward spiral of increasing expenses and results in a feminisation of poverty—the process is sinister since today it is accepted that poverty is one of the main factors fuelling the epidemic. Third, both women and orphans face the issue of stigma, discrimination and marginalization more often than men which exacerbates their already vulnerable position on their homes, communities and society. Fourth, women’s control of their own bodies and sexuality is seen as key to prevention and this is preserved and protected in the UN Conventions and Declarations. To date the efforts at HIV prevention have focused on individual behaviour change and chastity and the ‘ABC’ message has been promoted. Today it is understood that even married and or faithful women who abstain from sex stand a chance of being raped or facing sexual violence and then accused of having multiple partners or extra marital affairs, when they have been infected by their sole partner. Orphan girls are more vulnerable as they face increased risk of violence and sexual exploitation and are often invisible, unaccounted for and uncounted as well as marginalized. Fifth, the existing levels of violence against girls and women, especially sexual violence aggravates the secondary position in the community for women and also created situations where if the person behind the violence is positive, then the risk of transmission of the virus is higher. Violence is prevalent not only with strangers but reports today speak of violence in a relationship with an intimate partner as well. The social tolerance and acceptance of this violence against women and children heightens their vulnerability to HIV becoming part of the dynamics that bolsters the spread of HIV.
GENDER
AND
VIOLENCE
“Sexual violence fuels HIV/AIDS and is aggravated by the discrimination and subordination of women which permeates our societies.
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It is inextricably linked to the HIV/AIDS pandemic in our societies, and must be addressed if we are to adequately address HIV/AIDS.” Esther Andale, Association de Lutte Contre les Violences Faites aux.
FEMMES SPEAKER AT THE CHGA CONFERENCE ‘SEXUAL VIOLENCE AND HIV/AIDS’ A role of the deep-rooted inequity against women, studies have shown that in a sizable number of cases, men perpetrate the violence, with women as the victims. Violence against women is a human rights violation, often promoted by long-standing social and cultural norms that reinforce its “acceptability”. Rape and sexual violence increase the risk of HIV transmission. While the data are sparse, it is clear that the levels of such violence do not seem to be decreasing, but rather in some contexts sexual violence may be on the increase. Some sexual violence may even be spurred by HIV as in some cases myths and misconceptions make infected men believe that sex with a virgin—forced or voluntary—will cleanse and cure them. The data on the extent of violence to women is quite appalling but little known or acknowledged. Growing evidence from around the world shows that a large proportion of women and girls are subjected to violence. Violence against women, including sexual violence, takes a variety of forms that includes acts of domination, humiliation, and physical and verbal violence. Acts of violence can be carried out by an intimate partner, a family member— or by strangers. Forced and early marriages are also forms of violence against women and the abuse of children, with girls being particularly vulnerable, is one form of sexual violence which orphans are vulnerable to, since they lack the protection that parents would normally provide. Recent research by the World Health Organization reveals that in some countries more than half of all women experience sexual violence by an intimate partner. Violence and the danger of violence significantly heighten women’s vulnerability to HIV, making it complicated or unfeasible for them to abstain from sex, to ask for faithfulness from their partners, or to negotiate the use of a condom. This form of violence can also deter women from accessing HIV preventive, care and treatment services.
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Violence against women has been studied and recognised as a consequence of a patriarchal society. Domestic abuse in India remains vastly undocumented, and is estimated to be very prevalent. In South Asia, 50 per cent of women face violence at home. If a woman does ask for her husband to use a condom to protect herself from his infidelity, she will be accused of being unfaithful, or too knowledgeable about sex. This violence also contributes to the rampant spread of HIV among women because men who have affairs or have symptoms for STIs have been shown to be more likely to abuse their wives. Marital rape is common, and the cultural standards that call for dominating men also produce submissive women, who are unable to protect themselves against violent men. HIV is spread more easily when sex is violent or coerced, because trauma and injury to the membranes in the genitals in these situations is common. A woman also faces considerable violence from her husband if she is found to be HIV positive. Women and wives are seen as vectors of HIV, and even if a husband intentionally infects his wife, he will blame her and throw her out. Women “risk neglect, violence, abandonment, destitution, and ostracism”. The stigma from the community will often force her out of a community, and her children will suffer discrimination in school. HIV both exacerbates and results in violence against women and even her family.
DECLINING SEX RATIO In a country with a declining male-to-female sex ratio, there is more than ample evidence that Indian society is a patriarchal one. The 2001 Census showed that for every 1,000 male children, aged 0 to 6, there were only 927 female children, considerably lower than what was found ten years previously, in the 1991 Census (where there were 945 girls for every 1,000 boys).
ISSUES SURROUNDING KNOWLEDGE
AND
GENDER
Social taboos prevent women from talking about sex and sexuality, and most women have shown an unexpected lack of knowledge about their
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bodies and reproductive systems. This lack of education results in ignorance and powerlessness, making her vulnerable to HIV/AIDS. As a result, many women don’t know how HIV is transmitted or how to protect themselves. In many cultures, girls are expected to be ignorant on sexual matters; and may fear being perceived as promiscuous if they show an interest in or have knowledge about sexuality issues, including STIs and HIV/AIDS. In some parts of the world, women and girls are infected with HIV almost as soon as they start having sex. Almost everywhere traditions tolerate and even encourage men to have multiple sexual partners. Women, on the other hand, are expected to abstain or be faithful. In many places, they are expected to know little about sex or sexuality, and remain dangerously uninformed. Women and girls are more vulnerable to being infected by HIV than men partly due to unequal access to information as in many societies; children are socialized along specific cultural gender custom. By and large, girls are required to be innocent of sexual knowledge and there is a strong emphasis on her virginity until marriage, whereas boys are expected to be more sexually knowledgeable and experienced. In many cultures, female ignorance of sexual matters is seen as a sign of sexual honour and purity, and this succeeds in preventing women and girls from access or seeking right information. This results in women and girls believing that even seeking such information may call into question their virginity. Studies from Brazil, India, Mauritius and Thailand all found that young women know little about their own bodies, pregnancy, contraception or sexually transmitted infections. This mindset is also the reason that no family planning services or STI (Sexually Transmitted Infection) treatment centres are accessible to unmarried women, leaving them without information on how to protect themselves. Unmarried women also try to “protect” their virginity, unknowingly exposing themselves to HIV by practising unsafe alternatives to vaginal sex. When informed, women may not be able to change their behaviour as centuries of socialization aimed at pleasing men and submitting to their authority, especially in sexual matters takes precedence. Studies show that women engage in sexual behaviours that they know to be of high-risk for HIV infection because they want to please their male partners. In many cultures, it is understood that men make the decisions in sexual relations, and that if a man initiates sex, the woman may not refuse him. Thus, many married women, although informed about HIV transmission, feel unable to negotiate safer sex with their partners.
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In contrast, in many cultures, boys are brought up to believe that males are expected to be experienced in and knowledgeable about sex, which may be taken as a subtle encouragement to them to have unsafe intercourse with multiple partners and yet keep them from seeking health-related information. This attitude results in men bringing HIV home to their wives so much so that today, women are at the highest risk within a marriage. Studies have shown that 90 per cent of India’s HIV positive women have only one partner and are not involved in high-risk behaviour. Young people who are most vulnerable can only make safer choices to protect themselves and their sexual partners if they know the basic facts about HIV/AIDS. Policies that target children and young people need to be mindful of the proportion of these population subgroups who are outside formal education systems, permanently or for protracted periods.
PARENT
TO
CHILD TRANSMISSION
In the year 2002, UNICEF reports that 720,000 babies became infected with the virus during the mother’s pregnancy, during birth or through breastfeeding. Worldwide, around 1 per cent of pregnant women are HIV positive; 95 per cent live in developing countries, along with 90 per cent of all HIV positive children. If an HIV positive woman becomes pregnant, there is a 35 per cent chance that she will pass on the virus to her child if no preventive action is taken. Each year, more than 700,000 children become HIV positive via transmission from their parents and of these, 15–20 per cent are infected during pregnancy, 50 per cent during delivery and 33 per cent through breastfeeding. The number of cases is also rising in other parts of the world, including India, South East Asia, Central and Eastern Europe and Central Asia and the Baltic states. The vast majority of HIV positive pregnant women live in Africa, and infant mortality rates have doubled in recent years in the continent’s most affected countries. The number of cases is also rising in other parts of the world, including India, South East Asia, Central and Eastern Europe and Central Asia and the Baltic states. Women also face the risk of passing the infection to their children, during pregnancy, birth, or breastfeeding. Without treatment, the risk
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for transferring HIV from a mother to her child is 35 per cent. In ideal conditions, with proper care, treatment, medicine, and behaviour, the risk is greatly reduced. As the rate of infection for women steadily increases and ignorance about HIV continues, this number will continue to grow. Even during breastfeeding, there is a 15 per cent chance that a mother could pass the infection to her child. However, it is difficult for families to formula-feed because of financial constraints, availability, and social limitations. Women would do anything for their children, but they lack knowledge about how to protect their children from the infection. The lack of access to care, counselling, and material support compounds this. Almost 4 million people live with HIV/AIDS in India, and some 30,000 babies are born HIV positive each year. Although treatment is available at many clinics, many women fail to make use of it because of the stigma attached to HIV/AIDS.
CHILD MARRIAGE Child marriages, still prevalent among certain economic strata and geographic areas, also place women at a greater risk for infection. Girls are married in their teens to older. men, usually as a means of economic relief. Older men are more likely to stray outside their marriage, or to have had pre-marital sex, and are therefore more likely to be infected. The age gap also creates an “imbalance between the husband and wife in terms of authority, experience, and economic autonomy”. Young girls who marry older men are likely to leave school and have children very early, “continuing the inequality” and hindering their ability to become economically independent later in life. These factors increase the vulnerability of a woman who has been married very young. Linked to the issue of child marriage is the age at which girls become sexually active. Women married before the age of 18 tend to have more children than those who marry later. Studies have shown that, 97 per cent of women surveyed in India in 1992–1993 did not use any contraception before their first child was born. Protection from HIV/AIDS is also another misrepresented and misunderstood reason for child marriage as the girls’ parents look to get them married to protect their health and their honour. The men are also seen to look for younger women as wives thinking it to be a way
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to prevent infection. In some contexts, however, this becomes incongruent, in India, 75 per cent of people living with HIV/AIDS are married. In fact, the social pressures to have a baby and the stigma related to safe-sex practices lead to very low condom use among married couples worldwide, and heterosexual married women who report monogamous sexual relationships with their husbands are now increasingly becoming a high-risk group for HIV/AIDS.
ECONOMIC FACTORS Women’s economic and legal disparity also enhances vulnerability to HIV infection. Discriminatory economic policies and laws in country prevent women from gaining equal right to use resources such as land, property, credit, employment and education, which in turn is responsible for her economic dependence and heightened vulnerability. Women who are more financially independent are more likely to be able to reduce their risk of HIV infection. In countries with the custom of father to son passing of inheritance, it is often women who lose their homes, lands and livelihoods when their husbands die. Laws that disallow women equal marital property rights or the equal right to initiate or oppose divorce similarly subordinate women to men, making them more vulnerable to violence and coercive sex. Poverty forces them to exchange sex for food and maintenance for themselves and their families. Women and young girls also trade sex for jobs, promotions, permits and for school fees and marks. Poverty increases a woman’s susceptibility to HIV and women are economically dependent on their husbands, lacking the financial independence to survive on their own. Even in situations where they are infected or abused by their husbands, or affected by HIV/AIDS women will often choose not to leave the relationship due to the fear of stigma attached to divorce and to HIV. Without a proper education or property, women become mobile to find work, which causes an influx of women into urban areas. One of the biggest difficulties facing these women in affected households is often denial of their property rights. Positive women who have been abandoned by their husbands and ostracized from their communities and widows who have lost their husbands to HIV are
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very often refused a rightful share of their husband’s property. Discounting HIV, a widow’s traditional importance in the household is nonexistent, and she is seldom awarded her rightful share of her and her husband’s property. “Adding HIV/AIDS to the picture robs women of any remaining rights or status they may have had.” Girls orphaned by AIDS also face ‘property grabbing’ when their parents die, leaving them with no means of support. The large floating population of mobile men makes this population of mobile women vulnerable to HIV. In other ways, poverty also limits mobility in that women are unable to escape situations in which their welfare is at stake. When economic hardships force women to exchange sex for money they are in situations with little or no negotiating power when it comes to sex. Women, often adolescents, are also forced into red-light districts by traffickers. These girls have even less negotiating power. The fear of HIV has led traffickers to target younger girls, some just seven years old, in the belief that their youth and virginity protects them from HIV. Even where condoms are available, men pay more for sex without a condom, so they are often forgotten. Women whose partners fall sick and die due to AIDS-related illnesses are documented to suffer discrimination, abandonment, and even violence. In some places, women lose their homes, inheritance, possessions, livelihoods and even their children when their husbands die. Such insecurity forces many women to adopt survival strategies that increase their chances of contracting HIV. Research suggests that women who have secure access to, ownership and control over land and other assets are better able to avoid relationships that threaten them with HIV, and to manage the impact of AIDS. Research shows that women and girls who are HIV positive also face greater ‘discrimination than men both within families and health care environment’. Inside the families, the women—daughters, wives and daughters-in-law with HIV/AIDS face more discrimination than sons, husbands and sons-in-laws. Married women indicate that they may not reveal their HIV positive status to their husbands for fear of being victimised and deserted. Women are blamed by their in-laws when husbands are infected with HIV and are seen as vectors of the infection despite the family’s knowledge that the husband visited sex workers, in the belief that she was unable to satisfy her husband sexually resulting in his seeking a brothel. In a twisted reality, these women are next expected to provide for his care. After the husband’s death, however, his family will often deny the wife a share of the husband’s property or pension.
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The stigma against HIV positive women is so great even in hospitals and among doctors that they will not seek out treatment. If they do, they are often turned away. Many women hesitate even to get tested for HIV, or disclose their positive status. They fear their partner’s reaction of the test, and that fear keeps them from getting tested, returning for the results, participating in treatment programmes, and from adhering to treatment programme because women are trying to hide their pills. Many reports reveal the discrimination people living with HIV/AIDS experience in health care settings, such as denial of treatment, HIV testing without consent and breaches of confidentiality. Women living with HIV/AIDS experience double discrimination in health care settings. Confidentiality is also regularly violated by hospital staff who disclose HIV-test results to other staff not involved in the care and to family members or friends accompanying the patient. It has been seen that, 29 per cent of persons living with HIV/AIDS in India, 38 per cent in Indonesia, and over 40 per cent in Thailand said that their HIV positive status had been revealed to someone else without their consent. For women, especially pregnant women, “the principle of confidentiality is often disregarded altogether”. Sometimes women are not told their own HIV-test results; rather results are reported only to the husband or mother-in-law. Given the discrimination women face in their families, such disclosures put women at risk for serious ill-treatment, including homelessness and violence. Fear of breaches of confidentiality and the consequent discrimination prevents people from seeking testing and treatment for HIV/AIDS. When women do seek out treatment, transportation and poverty both limit their access. Treatment centres, in addition to medication, must also ensure that women have the means to provide themselves with the nutrition to sustain the medication. The HIV/AIDS treatment regimen requires sufficient nourishment to be effective, and if women do not have enough to eat, it will be useless. Women in purdah, who are excluded from the public lack information, access to female health care workers, and face difficulties in travelling to treatment centres. Once treatment is given, women receive inadequate pre- and post-testing counselling. Often, an HIV test is administered without her knowledge or consent. Test results are often given to a woman’s husband instead of herself, which can lead to violence in the home. In addition to violence, positive test also has psychological ramifications. In treatment, few drug trials are done on women to see how they respond to the medicine, and symptoms in women are unrecognized.
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Women and girls also carry the burden of caring for those who are ill or orphaned as a result of HIV/AIDS. In the context of the epidemic in Sub-Saharan Africa, where eleven million children have been orphaned, and health care is often provided at home, these responsibilities can be staggering. Most of this work is done by women and girls. The burden of providing care creates a deep impact on the educational and economic equality of girls. They are doubly affected when a male head of household falls ill because they may be required to seek other sources 4 per cent income as well as to provide care-giving and these same women may themselves be infected with HIV resulting in the added workload and stress contributing to worsening their own health. As health care providers of the home, girls are sometimes taken out of school to help with the treatment. 88 women must juggle nursing the sick, caring for AIDS orphans, and making up for the loss of income to support their families. Women receive almost no recognition or support for the vital role they play as caregivers. Often, men who migrate to urban areas and contract HIV go back to their rural homes to die, where the women struggle to care for their ailing loved ones without material support, which is more accessible in urban areas. The increased workload, loss of family income and deepening poverty make women more dependent on others and exacerbate gender inequalities. Often, women don’t know that condoms should be used for preventing anything other than pregnancy, or do not have the negotiating power to demand their use. In marriages, condom use is rare because it inhibits pregnancy and is perceived as a sign of infidelity. Men, who are often the ones who bring HIV into a family, suggest condoms as being unfaithful. Indian culture values fertility, and women want to get pregnant, which, as a source of pride, would improve their status. Male dominance puts women into a position where they are unable to refuse sex for fear of violence, and unable to practice safer sex. With knowledge and empowerment, much of this could be changed, especially with the use of female-controlled prevention, which is still being developed. The female condom, which a woman can use if man refuses to use protection, is currently the only female-controlled prevention method. They are more expensive than male condoms, and harder to come by. However, initial studies show that it is doing especially well among sex workers, who have been successful
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at convincing their partners to use it, and have been able to insert it even without their partner’s knowledge. A study done by The Female Health Company, the first company to produce the female condom, indicates that with proper use, female condoms are 97 per cent effective. Microbicides, which kill bacteria on contact, have the most potential as a female-controlled prevention method because women can apply it hours before a sexual encounter, and without the knowledge of their partner. They are being researched and developed in many forms, such as a gel, film, sponge, suppository and lubricant. Femalecontrolled prevention advances women’s rights and gender equality. Making them accessible to all women is an essential part of the HIV prevention effort, and can help “reverse the rate of infection”.
EDUCATION Education is and will always be a crucial right to protect women and girls, in addition it remains a fundamental human right and a critical asset in the battle against HIV/AIDS. In many places, it continues to be denied to so many children, the majority of them girls, while global communities have accepted that without cohesive work on gender, development and education issues, the steps taken by the various governments will not succeed completely. As a successful programme when welded together it will transform the lives and the futures of millions of women over the next decade. When 189 heads of state signed the Millennium Declaration in 2000, they recognized that educating girls is a powerful and necessary first step towards not only ending poverty but also achieving human rights. They made gender equality the very first of all Millennium Development Goal targets they set for themselves with a promise that they would strive to get as many girls into schools as boys by 2005. The Millennium Development Goal for gender is therefore translated and understood as not just a means to gender equality but a wholesome quest of gender and equal opportunity, and protecting the human rights in all spheres—health, education, culture and economics. While girls’ and boys’ access to education is inching its way upwards in the past 50 years and in some developing countries lost ground during the 80s which has been steadily gained, the rate of progress remains
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too slow to be achieved. Without a dramatic acceleration, it was predicted in 2005 that 40 per cent of the countries will not achieve gender equality even by 2015. In 2005, the failure to reach the UN girls education goal would have resulted in over 1 million unnecessary child and maternal deaths, ten million over a decade. HIV/AIDS infection rates are doubled among young people who do not finish primary school. If every girl and boy received complete primary education at least seven million new cases of HIV could be prevented in a decade. It has been seen that failure to educate girls and women perpetuates needless hunger, and gains in women’s education contributed most to reducing malnutrition between 1970 and 1995—playing a more significant role than increased food availability. In India, girls living in villages where schools offered a, free meal are 30 per cent more likely to complete primary education than other girls. It must be understood though that education on its own cannot be seen as a single cure—by itself it cannot overcome the multiple causes of women’s deprivation and oppression. Women, who get an education also sometimes face disadvantage in property ownership, labour markets and sexual and reproductive choices. While these require bolder initiatives to help empower women, there can be no doubt that amidst persistent discrimination, education equips girls and women with basic confidence in their rights, abilities and a capacity to acquire and process information which may help them in increased earning power. HIV and AIDS are increasingly challenging the attainment of the global education goals such as the elimination of gender inequality in primary and secondary education by 2005, achieving gender parity in education by 2015 and achieving a 50 per cent progress in levels of adult literacy by 2015, especially for women. At the same time as the HIV pandemic is severely disturbing school children and teachers, it is noted that education, whether it be formal, non-formal or informal is a “social vaccine” that could contribute to the prevention of further spread of the pandemic. Both the impact of HIV and AIDS on education and the role of education in prevention must be viewed systematically through a gender lens if appropriate responses are to be made in national policies and programmes.
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HIV/AIDS AFFECTS EDUCATION
IN
SEVERAL WAYS
HIV/AIDS undermines the supply of education: HIV and AIDS primarily affect the supply of education through their effects on teacher morbidity and mortality. For example in Zambia, 1967 and 2000 teachers died of HIV/AIDS in 2001 and 2002 respectively while teacher colleges are producing fewer than a thousand graduates a year. HIV/AIDS undermines the demand for education: HIV and AIDS affect the demand for education primarily through their effects on children and the households in which they live. Both biological and social factors contribute to adolescent girls having higher rates of infection. By 2001, 13.4 million children under fifteen years of age in developing countries had lost their mother, father or both parents to AIDS and 82 per cent of these were in subSaharan Africa. Much of the burden of caring for people living with HIV/AIDS and orphans has been seen to fall on women and girls and they are often the first to leave school to take on these roles. HIV/AIDS affects the quality of education: HIV/AIDS impacts on the progression, contents and decision-making aspects of education by putting learners, educators and education providers under great stress. Distress, crises, anguish, apprehension, desolation enter the classroom and need to be dealt with in positive ways that ensure an encouraging learning atmosphere. However, in circumstances marked by the deterioration or absence of support systems, this cannot be guaranteed and will have a negative impact on the quality of education. Existing gender inequalities in educational processes and content due, for example, to poverty or stereotypical views of women’s learning abilities and needs, are worsened. The fact that girls are often withdrawn early from school to care for others reinforces attitudes that girls, more likely than boys, will fail to complete their education, especially at secondary level. Key issues for effective gender-responsive education programmes: z
z
The nature of the infection, myths and misconceptions that weigh on women and men; Gender biases influencing sexual behaviours and increasing vulnerability to HIV/AIDS;
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z
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Behaviours women and men respectively should avoid or adopt in order to reduce risk; The promotion of respect for women’s and men’s human rights and dignity; The nature and dynamics of gender relations, including taboos and gender stereotypes affecting these dynamics; Stigmatisation and discrimination faced by affected/infected children, young adults, adults and their families; Skills for putting into practice understanding, compassion and knowledge.
There is a need to create an enabling environment for young people to obtain the necessary knowledge, life skills, and access to services to protect themselves from HIV/AIDS, and it is fundamental to provide this for all young people. This includes building resilience amongst young women and girls, young men and boys; challenging unequal gender norms and promoting positive gender relationships; ensuring an effective social support system in the family, school and community; and enhancing protective factors such as feeling valued in society, being exposed to positive rules and expectations; and having a sense of hope in the future. In schools, AIDS education is not usually offered, and where it is given, “It is to young people 15 and older. Yet 42 per cent of boys and 69 per cent of girls ages 15 to 17 are not in school”. Two-thirds of the world’s illiterate are women, and a study shows that illiterate women are four times more likely to believe that there is no way to prevent an HIV infection. Globally, more than 80 per cent of young women don’t have sufficient knowledge about HIV/AIDS. At the latest sexual encounter with a non-cohabiting partner, 51 per cent of women used a condom, compared to 59 per cent of men. This ignorance, especially prevalent among women, could be eliminated with targeted education. Once education rates rise, pregnancy, teen marriage, and HIV infection rates have all been shown to go down. Women have a right to knowledge, which will help them develop life skills that will provide them with the confidence and economic ability to improve their lot and fight off HIV and the stigma that comes with it. With knowledge comes empowerment, which would eliminate some of the causes for the spread of HIV. Education could reduce poverty and economic dependence, improve health, delay marriage, and increase a woman’s self-confidence and decision-making power.
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The world’s young people (aged 10–24) are especially vulnerable to HIV/AIDS. Of the 42 million people living with HIV/AIDS, more than a quarter are aged 15–24. Half of all new adult infections now occur among 15–24 year olds (UNAIDS 2002). Girls and young women are the face of the HIV/AIDS pandemic. Of the young people living with HIV/AIDS, 62 per cent are young women (UNAIDS 2002). Women are biologically more susceptible to HIV infection than men but young women and girls are especially vulnerable because of their immature genital tracts. Lower social status and gender disparity contributes to enhancing the risk to the HIV infection. Young women and girls may be subjected to gender-based violence, abuse, coercion or contractual sex for goods or money, and are often inadequately able to protect themselves against these sources of risk. Where relationships between older men and younger women are socially sanctioned, the older men tend to be sexually more experienced than young men; young girls are much more prone to HIV infection when marrying a much older man which places a young girl at higher risk of infection than her unmarried peers. Stereotypical gender norms of male dominance make both sexes vulnerable to infection, by encouraging men and boys to engage in risky and sometimes aggressive sexual behaviour. Boys and young men need skills and information on how to prevent HIV infection, how to live positively with HIV/AIDS, and how to adjust to new roles of caring and nurturing. These include skills for working towards collective change of customs and practices that promote and perpetuate gender-based violence and thereby increase the risk of infection.
GENDER
AND INTRAVENOUS
DRUG USERS
Intravenous drug users (IDUs) are among the most susceptible to HIV because of the prevalence of needle sharing, however, there has been less documentation produced about women as drug users than their male counterparts, and most literature does not focus on female drug users as a distinct group. Many in-patient drug-abuse treatment facilities do not admit women, particularly if they are pregnant or HIV positive. The reasons given for such restrictive admission policies range from lack of sex-segregated accommodation or lack of expertise in dealing with pregnant drug abusers to fear of transmission of HIV to other patients and to staff. Consequently, most health facility statistics
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under report female drug abusers. Since such statistics are one of the main sources for official annual reports on drug abuse to the United Nations, the data on women have remained scanty. A recent survey of drug users in India conducted by the UNODC found that in urban settings, women who are becoming drug users are younger and more educated than before and are participating in unsafe injecting and sexual practices. In Hyderabad, the study found that women drug users had earlier sexual initiation than men, more sexual partners than men, and less frequent condom use. In Thiruvananthapuram, all of the IDU women sampled had shared needles. Studies have shown that female drug users may differ from their male counterparts with regards to their background, their reasons for using drugs, their psycho-social problems and needs in response to how they are viewed by society. Women who are IDUs stand a higher chance of being stigmatized than their male counterparts because their activities are regarded by society as ‘double deviance’ namely abusing drugs and deflecting from the traditional expectations of the female as wife, mother and family nurturer has been seen that women IDUs cause more disruption to family life because legal and social penalties tend to be more severe: often’ communities or countries do not have drug treatment facilities for pregnant or HIV positive women and to compound this the support of community institutions which habitually provide shelter and financial assistance to single mothers may be withheld from them. Women may not seek treatment for fear of hostility from medical authorities, or because of fear of having their children taken away. Intravenous drug use and sex work are closely linked, and each group puts the other at risk for HIV. A study found that in Manipur, 20 per cent of female sex workers said they injected drugs. There is also a high prevalence of drug users who share needles and have sex with sex workers. In Delhi, 20 per cent of them had had unprotected sex with a sex worker, compared to the 5 per cent that used a condom. Since the beginning of the AIDS epidemic, significantly higher rates of HIV infection have been documented among populations involved in sex work than in most other population groups, and recent studies continue to confirm this pattern among female, male and transsexual sex workers. In numerous countries, sex workers face higher rates of HIV infection. Some of the factors that appear to heighten sex workers’ vulnerability to, and risk of, HIV infection include: z z
Stigmatisation and marginalisation. Limited economic options, in particular for women.
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Limited access to health, social and legal services. Limited. access to information and prevention means. Gender-related differences and inequalities. Sexual exploitation and trafficking. Harmful, or a lack of protective, legislation and policies. Exposure to risks associated with lifestyle (e.g. violence, substance use, mobility).
WOMEN’S PROPERTY RIGHTS: A LEGAL CONTEXT Women suffering from or affected by HIV/AIDS are often deprived of financial security and economic opportunities. Evidence suggests that women are better able to manage the impact of HIV/AIDS and are also more likely to prevent further spreading of HIV/AIDS when ensured economic security. However, in many countries their economic security is jeopardized and the impact of HIV/AIDS on women exacerbated, by discriminatory laws, customs, and traditions regarding property rights.
INDIA In India, as in other parts of the world, women’s rights to property are unequal to those of men. The denial and violation of women’s property rights widens the economic disparity between men and women. Women’s property rights are impacted by a complex network of statutory laws, personal laws and social norms and customs. Personal laws govern family law matters and determine a woman’s share in natal or matrimonial property. The applicability of any set of personal laws depends on a person’s religious affiliation. In the case of Hindus, Christians and Parsis some of the personal law is even codified. Additionally, tribal women’s property rights are governed by the customs and norms of their tribe. There is therefore no uniform body of law governing Indian women’s property. An Indian woman’s property rights depends on her religion, her marital status, which part of the country she comes from, her tribal association and so on.
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HINDU, SIKH, BUDDHIST
AND
JAIN WOMEN
Hindus, Sikhs, Buddhists and Jains are governed by the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. The property rights of Hindu, Sikh, Buddhist and Jain women depend not only on religion and region, but also on the status of the woman in the family: whether the woman is a daughter, mother, married or unmarried or deserted or widowed. Her property rights also depend on the kind of property at issue, that is whether the property is hereditary/ancestral or self-acquired, land or dwelling house or matrimonial property. Under the Hindu Succession Act, upon the death of a member of a coparcenery, the widow, mother, and daughter inherit intestacy property equally with the decedent’s son. Thus, a daughter is recognised as coparcener by birth in the same manner as her brothers, with similar rights in the coparcenery property. Moreover, under the Hindu Succession Act, the widow’s previously, “limited right” to marital property, where she acquired only a life-estate with very limited powers of alienation” became an “absolute right”, so that she enjoyed the status of absolute owner of inherited property. However, under the Hindu Succession Act a daughter still has limited rights in ancestral property. For example, in Narashimaha Murthy v. Susheelabai (Smt.) and Others, 114 the Supreme Court of India held that pursuant to Section 23 of the Hindu Succession Act, where a Hindu intestate leaves a dwelling house that devolves to female and male heirs, the right of the female heir to claim partition is circumscribed by the rights of the male heirs; she cannot seek partition unless and until the male heirs decide to partition the dwelling house. And a daughter is entitled to reside in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow. Additionally, a testamentary disposition can deny a daughter all rights to parental property. This is because Hindu parents’ right to bequeath self-earned property is unrestricted and therefore they can and often do will such property only to their sons. Moreover, the Hindu Succession Act does not “affect the provisions of any law... providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.” Thus, rural women’s property rights are limited given that much of the law related to agricultural land, the most important form of rural property in India,
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does not grant women rights to succession. 118 Ensuring equality of property rights protects a woman and her family’s economic security, while also empowering her to fight against social and political injustice.
TRIBAL WOMEN The customary laws of a tribe not only govern tribal culture, but also succession, inheritance and marriage. In India, most land is agricultural in nature and a tribe’s land is its “most important natural asset and imperishable endowment from which tribals derive their sustenance, social status, a permanent place of abode and work.” Despite the critical role agricultural land plays in a tribal person’s life, “[i]n most of the tenancy laws, women have been denied the right to succession to [and partition of ] agricultural lands. Petitioners in Madhu Kishwar and others v. State of Bihar and others, claimed that provisions 7, 8 and 76 of the Chhota Nagpur Tenancy Act, of 1908 (“Act”), violated Articles 14, 15, and 21 of the Constitution of India. Petitioners also alleged that the customary law in the State of Bihar, and in other states, forbidding tribal women from succeeding to land belonging to their fathers, husbands, and mothers while conferring such inheritance rights on male tribal members is discriminatory. The majority refrained from declaring that the Act’s inheritance provisions violated the Constitution, finding it undesirable to “[strike] down the provisions...as this would bring about a chaos in the existing state of law”. Instead, the Supreme Court held that Sections 7 and 8 of the Act had to be suspended. So long as the female tribal member’s livelihood depended on the land of her male tenant. Thus, tribal women had a constitutionally protected right to hold on to the land, after the death of a male tribal, so long as they remained dependent on it for their livelihood, because otherwise it would render them destitute. Finally, the Court refused to find that customary law pertaining to intestate succession was unconstitutional. The Court refused to apply the principles of personal law on the tribal people, because doing so would be an active of judicial activism, abusive to the tribal peoples “own customs, traditions and usages”. The Court also refrained from applying the principles of justice and equality as expounded in the Hindu Succession Act, 1956 or the Indian Succession Act, 1925,
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which by their terms do not apply to the Scheduled Tribes, to tribal peoples. The Court observed that “the [r]ules of succession are indeed susceptible of providing differential treatment, not necessarily equal;” however, it is not for the courts to bring customary law in line with the Hindu Succession Act or the Indian Succession Act. Instead, the Court recommended that the Central Government of India whether “it [is] just and necessary to withdraw the exemptions given under the Hindu Succession Act and the Indian Succession Act … to the Scheduled Tribes in the State of Bihar”.
MUSLIM WOMEN Muslim person law is less codified than Hindu personal law. Among codified Muslim personal law are the Muslim Personal Law (Shariat) Application Act, 1937 and the Muslim Women’s (Protection of Rights on Divorce) Act, 1986. The former gives women property rights in accordance with Islam. The main principles of Islamic inheritance law which bear on a woman’s property rights are: “(i) the husband or wife was made an heir (ii) females and cognates were made competent to inherit (iii) parents and ascendants were given the right to inherit even when there were male descendants and (iv) as a general rule, a female was given one half the share of a male.” Islamic law also prevents destitution of family members by providing that a Muslim cannot bequeath more than one-third of his property. However if he registers his existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a testator under the Indian Succession Act, 1925.
CHRISTIAN
AND
PARSI WOMEN
The Indian Succession Act, 1925 governs Christian and Parsi women’s succession rights. Christian—where a Christian man dies intestate, leaving behind lineal descendants, his widow receives one-third of the estate, and the
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lineal descendants inherit equal shares of the remaining two-thirds. If there are no lineal descendants, but there are other family members, the widow receives half the estate; otherwise she takes the whole estate. The issue of Christian succession law was raised in Mary Roy v. State of Kerala. Mrs. Roy challenged the constitutionality of the Travancore Christian Act, under which daughters inherit only one-fourth the share of sons—a portion of each daughter’s inheritance goes to the Christian church. The Supreme Court of India held in Mrs. Roy’s favour finding that restrictions on inheritance by women imposed by Tranvancore Christian Act had been superseded by the Indian Succession Act, which gives equal shares to sons and daughters. Parsi—Parsi law is the most gender equitable. Under the Parsi law of succession, as codified in the Indian Succession Act, 1925, both sons and daughters, irrespective of their marital status, inherit equal shares of parental property. Where an intestate leaves behind a surviving spouse and children, each receives equal shares of the intestate’s property. Moreover, when a Parsi dies intestate and leaves behind a parent and a child, both father and mother each succeed to half of the share of each child. In a case filed by the Manipur Network of Positive People, Ms X, an HIV positive woman, and her children were expelled from Ms X’s matrimonial home, by her in-laws, after her husband died from AIDS. The court reinstated her to her matrimonial home. The court also ordered her in-laws to pay for her medical care and her children’s education. Finally, because Ms X feared for safety, the court set up a committee to look into the matter.
AN INTERNATIONAL EXAMPLE Zambia Zambia has a dual legal system under which both customary and statutory laws are operational. Under customary law, land rights are controlled by men. Thus, women can access land only if a village chief or headman, husband, or other male relative decides to allocate land to them. While certain statutory provisions governing inheritance and succession provide means for acquiring (and by widows and
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daughters the provisions govern only 20 per cent of the land in Zambia). Accordingly, after the death of their husbands many women are often pushed off their marital homestead and forced to go back to their natal homes. In Mwiya v. Mwiya, a divorce case, the parties were married under Lozi customary law. The wife sought half the marital property and financial support through her lifetime. The High Court of Zambia found that Lozi custom does not obligate a husband to share marital property with his wife after divorce. While a husband could voluntarily choose to provide his wife with such property, he was not required to do so by Lozi custom and the court would not compel him to do so. The court also found that there was no Lozi custom requiring the husband to provide for and support his wife after divorce. The case of Rosemary Chibwe v. Austin Chibwe, involved property distribution after the dissolution of an Ushi customary law marriage. Mrs Chibwe appealed to the Zambian Supreme Court, claiming that the lower courts had made insufficient property allowances for her. The Supreme Court held that under Ushi customary law husband and wife are entitled to share in the marital property. Notwithstanding the fact that the marriage was solemnized under customary law the Supreme Court applied English law principles and ruled that as long as the spouse had contributed directly or in kind to property accumulation they were entitled to financial provisions; the proportion allocated to each party was left to the Court’s discretion. Thus, Mrs Chibwe was awarded property based on the Matrimonial Causes Act and principles of English law even though her marriage took place under customary law. However, the Supreme Court judgement fails to generally protect women’s property rights. This is because the Court’s decision is guided by Ushi customary law under which the wife “[is] entitled to a reasonable share in the property acquired during the subsistence of the marriage”. Thus, where the customary law is not so inclined a woman is left unprotected under Chibwe v. Chibwe. However, a recent local court decision holds promise for the future of women’s property rights in Zambia. In Martha Kembo Mwanamwalye v. Collins Mwanamwalye, a divorce case, the court safeguarded property rights of women married under customary law. The court ruled that “notwithstanding that the parties in this matter were married under customary law, justice demands that when a marriage has broken down, the parties should be put in equal position to avoid any one of them falling into destitution.”
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WOMEN’S RIGHTS
UNDER INTERNATIONAL
LAW
The Universal Declaration of Human Rights recognizes gender equality and holds that women, on the same basis of men, are entitled to fundamental rights and liberties. It proclaims that “[e]veryone is entitled to all the rights and freedoms set forth in [the] Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Among the rights set forth are, the right to life; liberty, and security of person; equality before the law; right to own property; right to work and equal pay for work; right to a standard of living adequate for...health and well-being... including food, clothing, housing and medical care; right to education; and special assistance to a woman for her role as a mother. As a result, all member states of the United Nations recognize women’s rights to social, political, economic and cultural equality. The two major treaties implementing the Universal Declaration of Human Rights are the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant of Civil and Political Rights (ICCPR). Under the ICESCR state parties “undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the... Covenant.” The ICESCR recognizes the right to education, an “adequate standard of living [which includes] adequate food, clothing and housing, and to the continuous improvement of living conditions”, and to the “highest attainable standard of physical and mental health.” To achieve the latter right the treaty mandates that parties take steps to reduce the “stillbirth-rate and... infant mortality” [rate] and [to promote] the healthy development of the child. Together these provisions “implicitly include the right of a woman to health services and information to prevent unwanted pregnancies that may endanger the woman’s physical and mental health”. The ICCPR “[ensures] the equal right of men and women to the enjoyment of all civil and political rights set forth in the... Covenant.” The ICCPR provides for substantive rights such as the right to information, political participation, association and movement. These rights in turn provide the foundation for many of the rights necessary for women to enjoy health, access to health care and economic security.
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Moreover, the right to reproductive self-determination has been linked directly with the right to life, liberty, privacy, and marry and found a family. Like the ICCPR, the Convention on the Political Rights of Women provides for equal political rights for women, including the right to vote in elections, to be elected to publicly elected bodies, and to hold public office on equal terms with men. Further, the United Nations Declaration on the Elimination of Violence against Women urges states to take all necessary measures to eliminate violence against women. It defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life.” Eliminating violence against women is particularly important because such violence is a contributing factor to women’s vulnerability to HIV and the increased rate of HIV infection among women. Effectively fighting against the spread of HIV thus “requires that women be able to protect themselves against all forms of violence, including domestic violence, rape, and sexual abuse”.
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is a comprehensive legal instrument, an international bill of rights for women, which focuses on women’s rights and recognizes that the deprivation of women’s rights is of critical international concern. 161 Entered into force on September 3, 1981, it supplements the antidiscrimination provisions in the ICCPR and ICESCR. Nearly all United Nations member countries are parties to CEDAW making it the second most widely ratified human rights treaty, after, the Convention on the Rights of the Child. 166 It requires that countries “embody the principle of the equality of men and women... [and] ensure, through law and other appropriate means, the practical realization of this principle.” State Parties condemn discrimination against women in all its forms and to this end agree to immediately pursue by all appropriate means, a policy of eliminating discrimination against women by any person or entity. Discrimination
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is defined as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. State parties to CEDAW undertake to enact, abolish or repeal appropriate legislation and establish legal protection through national tribunals and other public institutions. It obligates parties to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures …to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Parties are also free to take temporary special measures to achieve de facto equality between men and women. Member states promise to ensure women access to health care, gender equality in the field of education and employment, and equal access to economic and social benefits. They agree to eliminate discrimination against women in economic and social life, “suppress all forms of [trafficking] in women and exploitation of prostitution of women,” and “to eliminate discrimination against women in rural areas in order to ensure on a basis of equality of men and women, that they participate in and benefit from rural development”. State parties are further to “modify the social and cultural patterns of conduct”, to eliminate traditional attitudes, prejudices, and practices concerning the status and role of women and men. CEDAW also requires parties to ensure that women have access to information and health services related to family planning. Overall, CEDAW gives rise to national obligations to eliminate discrimination against women and guarantees the substantive equality of men and women.
OPTIONAL PROTOCOL The Optional Protocol to the Convention on the Elimination of All Forms of discrimination against Women (Protocol) was entered into force on 22 December 2000. The purpose of the CEDAW Protocol is
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to remedy past inconsistencies in the application of CEDAW by member states. Thus, it offers a new enforcement mechanism for rights under CEDAW and thereby enhances CEDAW’s protections. Under it individuals or groups can complain to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) about violations of rights guaranteed by the Convention. However, the Committee will consider complaints only after all domestic remedies have been exhausted. Parties that ratify the Protocol allow the CEDAW Committee to accept claims against them by one or more of their citizens. The Optional Protocol also allows the CEDAW Committee to inquire into grave or systematic violations on its own initiative. 180 As a result, the Optional Protocol provides for a mechanism to redress the rights of women where member states have failed to fulfill their obligations under CEDAW or where they have proved ineffective. However, the Protocol’s ability to provide redressal is limited: it is available only where a state has adopted both it and CEDAW and failure to adhere to its terms is not sanctionable, and the Committee’s decisions are merely advisory.
UNITED NATIONS GENERAL ASSEMBLY DECLARATION OF COMMITMENT ON HIV/AIDS In the Special Session of the United Nations General Assembly in 2001 leaders from member states committed themselves to address the HIV/ AIDS crisis by mounting an intensified, long term, comprehensive attack against the HIV/AIDS pandemic. Governments from around the world recognized “that people in developing countries are the most affected and that women, young adults and children, in particular girls, are the most vulnerable”. Accordingly, it “[stressed] that gender equality and the empowerment of women are fundamental elements in the reduction of the vulnerability of women and girls to HIV/AIDS.”
THE BEIJING CONFERENCE The fourth United Nations Women’s Conference took place in Beijing, China in 1995. The conference culminated in the Beijing Declaration
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and the Platform for Action, which recommends policies to be carried out for securing women’s rights. The Beijing Declaration draws member states attention to their obligations and responsibilities under the Charter of the United Nations, the Universal Declaration of Human Rights and other international human rights instruments, in particular the Convention on the Elimination of All Forms of Discrimination against Women and the Convention’ on the Rights of the Child, as well as the Declaration on the Elimination of Violence against Women and the Declaration on the Right to Development. It cites the consensus and progress made at the UN conferences and summits on women in Nairobi in 1985, on children in New York in 1990, on environment and development in Rio de Janeiro in 1992, on human rights in Vienna in 1993, on population and development in Cairo in 1994, and on social development in Copenhagen in 1995. The Platform for Action is an “agenda for women’s empowerment” that establishes that “[e]quality between women and men is a matter of human rights and a condition for social justice and is also a necessary and fundamental prerequisite for equality, development and peace”. While the Platform for Action is not a binding legal instrument, it represents a global agenda for women’s empowerment. The Platform for Action identifies 12 critical areas of concern that relate to women: poverty; education and training; health care and related services; violence against women; effects of armed and other kinds of conflict on women; economic structures and policies; power and decision making; institutional mechanisms for the advancement of women; human rights; women’s access to and participation in communication systems; natural resources/environment; and the rights of the girl-child. In characterising the global framework, the Platform recognizes the devastating impact of HIV/AIDS on the lives of women and the increasing and alarming rate of women’s HIV infection. Governments, educational authorities and other educational and academic institutions are called upon to educate children about HIV/AIDS.’ The Platform for Action points out adolescent’s girls increased risk of HIV infection. It also acknowledges HIV/AIDS “devastating effect on women’s health” and ultimately on their “[roles] as mothers and caregivers and their [contributions] to the economic support of their families.” It further recognizes that “early marriage, including child marriage, violence against women, sexual exploitation, sexual abuse, [is] at times is conducive to infection with HIV/AIDS.”
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Given these and other acknowledgements governments and international bodies are called upon to initiate gender-sensitive approaches to dealing with the HIV/AIDS pandemic. Among the actions to be taken are: recognise the impact of HIV/AIDS in their countries while taking into particular account the impact on women, implement education and awareness programmes for all members of society including children and decision makers and opinion leaders, enact legislation against socio-cultural practices that contribute to women’s increased susceptibility to HIV/AIDS and legislation against HIV/AIDS related discrimination, encourage non-discriminatory HIV/AIDS related policies and practices, develop community strategies to protect women from HIV, provide care and support to positive persons, ensure preventive services, through the primary health care system of access to preventive services with respect to HIV/AIDS, expend counselling and testing services for women, and support research on HIV infection in women. Beijing +5 At the UN’s Women 2000 Conference, governments renewed their commitment to the Beijing Platform and also recognized the emergence of new issues and trends in the five years since the Beijing Conference. These include the seriousness of the HIV/AIDS pandemic and the particularly devastating impact that HIV/AIDS has on women. After the Conference the General Assembly adopted by consensus the Political Declaration and “Further Actions and Initiatives to Implement the Beijing Platform for Action”. It acknowledged that “the progression of the HIV/AIDS epidemic in the developing world [has] a strong impact on women.” Among other things, governments and international bodies were called upon to, adopt measures to enable safe sex practices, “adopt policies and implement measures to address... the gender aspects of... HIV/AIDS and other infections having a disproportionate impact on women’s health”, research and gather data about the impact of HIV/AIDS on women, encourage awareness of harmful effects of “traditional or customary practices affecting women’s health status, some of which increase their vulnerability to HIV/ AIDS”, “intensify education, services, and community based mobilization strategies to women from all ages from HIV”. Finally, states
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reaffirmed their commitment to ensure and protect women’s reproductive rights, focusing on issues such as maternal mortality rates, provisions for safe and effective contraception, and access to reproductive health services for women and adolescents. Beijing + 10 Again, at the tenth anniversary of the Fourth World Conference on Women the participating governments reaffirmed their commitment to the Beijing Declaration and Platform for Action and the outcome documents of the twenty-third special session of the General Assembly. The United Nations Commission on the Status of Women subsequently adopted a resolution on Women, the Girl Child and HIV/AIDS. The resolution focuses international attention on the impact of HIV/AIDS on women and girls. The resolution notes the Commission’s concern with the global HIV/AIDS pandemic that is disproportionately affecting women and girls and that the HIV/AIDS emergency, with its devastating scale and impact, requires urgent actions by government and civil society at all fields and levels. The resolution urges, among other things, for governments to take all necessary measures to empower women and to strengthen their economic independence, strengthen health care and health services, promote awareness and education through a gender sensitive framework, expand access to treatment, and eliminate HIV/AIDS related discrimination against women and girls.
MARRIAGE RIGHTS The right to marry is protected by international human rights law and standards. For example, Article 16(1) of the Universal Declaration of Human Rights states that “men and women of full age... have the right to marry.” Similarly, Article 23 of the International Covenant of Civil and Political Rights stipulates that: “the right of men and women of marriage age to marry and found a family shall be recognized.” Notwithstanding these international laws and standards, positive persons face threats to their right to marry.
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In Mr X vs. Ms Y the Supreme Court of India suspended marital rights of persons afflicted with HIV/AIDS. After Mr X tested positive for HIV a hospital employee informed his fiancé’s family of his positive status. As a result of the disclosure, the engagement was called off. Mr X brought suit, seeking damages for breach of confidentiality and interference with his right to marry. The Court denied his claim for damages holding the disclosure was not “violative of either the rule of confidentiality or the appellant’s Right of Privacy as Ms ‘Y’ with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the virus if marriage had taken place and consummated.” The Court went onto to hold that “so long as a person is not cured of [a] communicable venereal infection... the right to marry cannot be enforced through a court of law and shall be treated as a suspended right.” The Court observed that a person with HIV/AIDS in fact has a duty not to marry. Subsequently, in Mr X v. Dr Z, Mr X filed an I.A. 2/1999 questioning whether it was lawful for a person suffering from HIV/AIDS to marry a person not so afflicted, if the partner is made aware of the person’s positive status. However, the Supreme Court declined to pass judgment on this issue. The Court reasoned that since the Court in the previous case found that disclosure of Mr X’s HIV was not unlawful, thereby dispensing with the case, it should not have gone on to pass judgement on a positive person’s right to marry. The Court found that the comments regarding a person’s marital rights were unnecessary and uncalled for, and dismissed the applications with those observations. Codification of marital bans on positive persons has also been attempted. In the United States, a Utah district court invalidated and enjoined future enforcement of a Utah statute that forbade and declared void marriages by persons with AID S.206. In T.E.P. v. Leavitt, the Court held that the Utah statute violated the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of physical impairment, where a physical impairment is defined as an ailment that limits the major life activities of an individual. Because federal law supersedes state law, the statute could not stand. In 2004, Albania proposed amendments to Albanian Family-Code denying right to marry to people with certain disabilities, including HIV/AIDS. And in China, some local laws prohibit positive persons
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from marrying, while others prohibit persons with sexually transmitted infections from obtaining marriage licences unless they are undergoing treatment.
GUARDIANSHIP
AND
CUSTODY RIGHTS
Divorce or separation or the death of either parent due to HIV/AIDS related complications, has profound implications on child guardianship and custody matters. Most Indians living with HIV/AIDS are between the ages of fifteen and forty-nine; this is also the time at which many people are raising children. It is thus particularly important for positive parents to plan for the care of their children after incapacity or death renders them unable to provide care. Moreover, in India married women are becoming the fastest growing HIV/AIDS afflicted population. In 2004, the National AIDS Control Organisation estimated that approximately 39 per cent of the estimated 5.6 million living with HIV/AIDS in India were women. An HIV/AIDS affected woman faces gender specific obstacles that compromise her ability to care and plan for her children; her plight is exacerbated by discriminatory laws, customs and practices. Often, after the death of her husband, a woman is forced to battle her in-laws or testamentary guardians for custody and guardianship of her children. Women may also stay in relationships and engage in sexual practices that subject them to an increased risk of contracting HIV because they do not want to risk losing guardianship and custody of their children.
LEGAL SCENARIO
IN INDIA
A minor’s natural guardian has the legal right to act as the minor’s guardian. As a guardian, the person has the legal authority to exercise control over and make decisions regarding the minor’s person and property. A natural, guardian acts as legal guardian as of right, without obtaining a court decree, unless a court deprives the natural guardian of his or her rights pursuant to the Guardian and Wards Act, 1890 (GWA) or unless a testamentary guardian has been appointed.
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Custody on the other hand “refers to the physical care and control of a minor”. A custodial parent can make decisions about a child’s “education, medical treatment, and movement”. While a custodial parent can make decisions about the child’s person, he or she cannot exercise control over the minor’s property. In India, guardianship and custody of minor children is governed by the GWA, the personal laws of the parties, and the marriage and divorce laws of the various religious communities. The GWA applies to all minor children irrespective of their religious affiliation. The GWA is applicable upon failure of the natural or testamentary guardian. Under the GWA, a court can appoint a guardian for a minor’s property or person, or both, when it is in the best interests of the minor. In appointing a guardian, courts take into consideration the age, sex, and wishes of the child, as well as the personal law of the minor. Where the GWA is inapplicable, the personal laws and the marriage and divorce laws of the parties are applicable. The personal laws of all religious communities ascribe guardianship of a minor child to the father.
HINDU MINORITY
AND
GUARDIANSHIP ACT
The Hindu Minority and Guardianship Act (HMGA), which applies to Hindus, Sikhs, Buddhists and Jains provides that the natural guardian of “a boy or an unmarried girl” is “the father, and after him, the mother”. Under the HMGA, like Muslim personal law, even where the mother is entitled to custody, such as is the case with a very young child, the father remains the natural guardian. However, in 1999, the Supreme Court of India held that the mother could act as the natural guardian of a minor. In Githa Hariharan v. Reserve Bank of India, Githa Hariharan sued the Reserve Bank of India for refusing to allow her to sign as the legal guardian of her child on an application for financial bonds. Section 6(a) of the HMGA which provides that a minor’s natural guardian is “the father and after him the mother” was at issue. The Bank maintained that under the HMGA during the father’s lifetime, the father was the natural guardian of the child, and accordingly; Mrs Hariharan did not have authority to sign as
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the child’s legal guardian. The Supreme Court held that either parent can act as the guardian of a minor under the HMGA. The Court reinterpreted the word “after” in Section 6(a) to mean “in the absence of”, with the word “absence” referring to the father’s absence from the care of the minor for any reason whatsoever, the father’s indifference to the matters of the minor, any agreement between the father and the mother (oral or written) regarding guardianship, or the-father’s inability for any reason whatsoever to take care of the minor. Under any of the aforementioned circumstances the father is considered absent and the mother can be recognised as the natural guardian. The Court noted that “the father... cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category.” This is because “gender equality is one of the basic principles of [the] Constitution.” Favouring Reserve Bank’s construction of Section 6(a) would render the Section unconstitutional, necessitating its invalidation. However, the judgement unsatisfactorily protects women’s rights of guardianship; during the lifetime of the father, the court permits maternal guardianship only in certain enumerated circumstances. The Court fails to unequivocally establish “joint guardianship. Nonetheless, the judgment prevents the father from using a will to deprive the mother of guardianship after his death”. In 2006, the Supreme Court again recognised that either parent, provided that he or she is financially capable and otherwise fit to care for a child, can serve as the child’s natural guardian. In Sheila Das v. PR. Sugasree, Shelia Das appealed to the Family Court of Thrissur’s order granting custody of her daughter, to the daughter’s father, the “natural guardian”. The Supreme Court upheld guardianship in favour of the father finding it to be in the best interests of the child. In reaching its decision regarding the child’s best interests, the Court spoke to the minor to ascertain her preferences. While the decision is laudable for its emphasis and concern on the child’s best interests it contains numerous references to the father as the “natural guardian”. For example, the Family Court’s order refers to the father as “the natural guardian”. Even Shelia Das concedes that the father is the natural guardian under Hindu law. Moreover, the Court observes that the father had not abdicated his responsibility, signaling that his lawful guardianship rights would terminate only if he did. Again, missing from the Court’s jurisprudence is an unequivocal assertion of equal and joint guardianship rights of the both parents.
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MUSLIM PERSONAL
LAW
Muslim Personal law (Shariat) applies to guardianship issues where the parties are Muslim. Under all schools of Muslim law, the father maintains right of guardianship. According to Mt. Ultat Bibi v. Bafati, under the Mahomedan Law the father is the natural lawful guardian unless a competent Court orders otherwise. His rights as natural guardian are automatic so that he can exercise his guardianship rights without any order by a Court appointing him as such. In Sulaika Bivi and six others v. Rameeza Bivi and 10 others, the late Mohammad Sulthan Maracayar bequeathed more than one-third of his property. Under Hanafi Law, such a bequest is valid only if the consent of the heirs of the testator is obtained after the death of the testator. The appellant claimed that the bequest was valid because, as legal guardian, she granted consent on behalf of her minor children, heirs of the testator. However, the High Court of Madras held that the mother was “totally incompetent to act as legal guardian” of her minor children. The court noted that, “the law on this subject is clear that the mother cannot act as a natural guardian on behalf of her minor children.” The Court cited Imam Bandi v. Muksadi, where the Privy Council stated that, “[i]t is perfectly clear that under Mohamedan Law, the mother is entitled only to custody of the person of her minor child up to a certain age according to the sects of the child, but she is not the natural guardian, the father alone, or if he be dead, his executor (under Sunni Law) is the legal guardian.” While the father is the natural lawful guardian, he is not necessarily the custodial parent. Deeming women to be better care-givers and nurturers, Muslim law favours granting the mother custody for very young children. Thus, the mother is entitled to custody of a minor girl until she attains puberty and of a minor boy until he attains the age of 7; however, even then the father is the legal guardian. Moreover, if the mother divorces and then re-marries a second husband, she loses her custodial rights to the father, no matter how unsuitable of a guardian the father may be. However, with regard to custodial matters courts are predominantly concerned with the welfare of the child. Accordingly, statutory provisions pertaining to custody are not mandatory. This means that while courts apply personal laws when deciding issues of guardianship and custody, they ascribe paramount importance to the welfare of the child.
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In Shama Beg v. Khawaja Mohiuddin Ahmed, Shama Beg appealed to the High Court of Delhi after the lower courts ordered her to turn over custody of her 3 year-old to the son’s father because she disentitled herself to custody upon her remarriage. The High Court held that in custodial matters the court’s paramount consideration is the welfare of the child. The High Court, citing a series of court decisions, reasoned that “the rigidity of law that a woman on re-marrying disentitles herself to the custody of a child has been watered down taking into view the principle that the Court should consider the interest and welfare of the minor in cases relating to the custody of the minor.” Finding that uprooting the child, who was not familiar with the father, having never lived with him, was not in the best interests of the child, the Court granted custody to the mother. However, she was entitled to custody only until her son reached age seven, after which point the father “[had] to be given” custody. The court rejected the mother’s demand for custody after the child had reached age seven, because giving the father custody, as he was entitled, would not endanger or adversely affect the child’s welfare.
INTERNATIONAL LEGAL SCENARIO Generally a court’s primary and central concern in child guardianship and custody matters is with the child’s best interests. Accordingly, courts may take into consideration the health of the parents. In the Australian case of the marriage of B and C, the court considered whether a father afflicted with AIDS could regain access to his threeyear old child. The court denied the father access. The court reasoned that the child’s welfare would be compromised by the potential social ostracism that might result from the child’s association with a person with AIDS. In the United States case of Steven L. v. Dawn J., the mother was granted custody of her child through a mutual consent agreement. After the mother tested positive for HIV, the father brought suit, alleging that her HIV status was a change in circumstance justifying a change of custody from the mother to him. The court denied his motion for a modification of the custody decree. The court noted that while the mother was afflicted with HIV she had not yet developed
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full blown AIDS and there was no evidence to indicate she would develop AIDS in the near future. The court also noted that HIV could not be casually passed from the mother to the child. Finally, the court pointed out that the father had unprotected intercourse with the mother knowing that she was HIV positive, thereby exposing himself to the risk of contracting HIV. Similarly, in Department of Social Services v. Carraher (In re John T.), the Nebraska Supreme Court held that the child’s best interests lay in being placed with his foster parents, notwithstanding the fact that the foster mother had AIDS. John T.’s guardian ad litem appealed a juvenile court decision to approve a Department of Social Services (DSS) plan removing the 3½-year-old-child from his foster parents. The DSS decision stemmed from the foster mother’s affliction with AIDS. DSS was concerned with the impact that the foster mother’s death would have on John, especially given the child’s genetic predisposition to developing schizophrenia. The juvenile court found that it was in John’s best interest to be placed with other foster parents. On appeal, the Nebraska Supreme Court ordered John to be returned to his foster parents. The Court found that given the strong bond that had formed between John and his foster it was in the child’s best interest to remain with her. The Court noted that no child is guaranteed the survival of his or her guardian, and it was “the function of DSS or the courts to save John from one tragedy, the probable death of G.B., the only mother he has known, by visiting another tragedy on him, a DSS plan which includes not only the loss of his mother, but his father as well”. At least one court has observed that while courts should be “concerned when the question of AIDS is raised in the context of child custody and visitation... [courts] should continue to apply the settled principles and precedents normally brought to bear in custody and visitation”. According to the Tennessee Court of Appeals in Sherman v. Sherman, the risk of exposure to HIV does not warrant departure from existing legal principles and precedents. In Sherman, the mother appealed the trial court’s denial of her motion to restrict the father’s visitation rights because he shared a residence with his HIV positive brother. The Court noted that “[d]espite the spectre of AIDS, [the] appeal is essentially a dispute between divorced parents concerning visitation.”
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ADOPTION RIGHTS Adoption is the process by which the legal relationship between a child and his or her birth parents is severed and replaced by the new relationship created between the child and adoptive parents. In India, adoptions are governed by personal law. Presently, the only existing legislation on adoption is the Hindu Adoption and Maintenance Act, 1956. The Hindu Adoption and Maintenance Act applies only to Hindus, Sikhs, Buddhists, and Jains. Because the personal laws of non-Hindus do not recognise adoptions, non-Hindus can only avail themselves of the Guardianship & Wards Act, 1890, which confers only a guardianship-ward relationship. However, the Bombay High Court has held that in the absence of legislation permitting adoption, persons who have a right to guardianship under the GWA can petition the courts to adopt the child. The Central Adoption Resource Agency (CARA) is an autonomous body established under the Ministry of Social Justice & Empowerment. CARA is responsible for all adoption matters in India. Under CARA guidelines prospective adoptive parents must provide documents relating to their health status. A compulsory medical report, which includes a physical examination and medical history, inquires as to the HIV status of the prospective parents. While the guidelines do not prohibit persons with a physical illness from applying for adoption, the paramount factor for consideration is what is in the child’s welfare. Thus, the CARA guidelines are unclear about whether a prospective parent’s death would be unduly traumatic for a child; accordingly, it is up to the court’s discretion to decide whether or not to permit a HIV/AIDS afflicted person to adopt. In the United States, in In re Adoption of Johnson, the Indiana Court of Appeals affirmed the lower court’s decision to allow Gretchen Johnson, the biological mother, to withdraw her consent to the adoption of her child after learning that the prospective mother and father were both positive persons. Both Mr and Mrs Nicholas were afflicted with HIV and were expected to develop AIDS in the near future. Johnson claimed that it would not be in the child’s best interest to be adopted and then “lose her parents”. The Court of Appeal agreed and affirmed the superior court’s decision to permit Johnson to withdraw her consent to the adoption of her child. The child was thereafter placed in foster care.
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PLANNING
FOR A
CHILD’S FUTURE CARE
India Under the Hindu Minority and Guardianship Act, 1956, a child’s father can appoint a guardian through a testamentary disposition. However, the father’s appointment fails if he predeceases the child’s mother. If the father predeceases the mother, the “Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother is entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of minor’s property... or in respect of both.” Thus, a father cannot deprive the mother of guardianship through his will. Hindu, Sikh, Buddhists, and Jain parents may also choose to put their children up for adoption. Muslim personal law recognises the father’s position as dominant. Under Sunni law, the father can appoint a testamentary. If the father fails to appoint a guardian the paternal grandfather assumes guardianship. Under Shia law, after the father’s death, guardianship passes to the paternal; the father is not given the option of bypassing the paternal grandfather’s guardianship by will. Thus, under both schools of law, the mother does not assume guardianship after the death of the minor’s father. However, the father can appoint the mother as guardian by will. Because Muslim personal law does not recognize adoption, adoption is not an option for future care planning. Instead, only a guardian-ward relationship can be created pursuant to the GWA. Where the parents have failed to appoint a guardian by will or upon failure of a natural or testamentary guardian, a court may appoint guardian under the Guardian and Wards Act. However, the GWA recognizes the supremacy of paternal rights. Finally, the guardianship and custody issues may also come under the guise of the Juvenile Justice Act, 1986 (JJ Act). The JJ Act applies to children “in need of care and protection”. Among the definitions of child in need is a child: “who is found without any home or settled place or abode and without any ostensible means of subsistence,” “who is... suffering from terminal infections or incurable infections having no one to support or look after”, “who has a parent or guardian and
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such parent or guardian is unfit or incapacitated to exercise control over the child”, “who does not have parent and no one is willing to take care of or whose parents have abandoned him”. The JJ Act empowers State Governments to establish Child Welfare Committees (CWCs) in every district or a group of districts to deal with children in need of care and protection. The CWC resolves issues pertaining to the care, protection, treatment, and rehabilitation of children in need of care and protection. Charged with the responsibility of providing for the child’s basic needs and protection of human rights the CWC may elect to place the child in a children’s home, restore the child to his or her parents, place the child in adoption or in foster care. In practice, adoption is only an option for healthy young children and no foster care system has been put into place. Thus, it seems that at both the state and national level, government officials perceive institutions as the first and virtually only solution for children whose families are unable to care for them. This is so even though the Convention on the Rights of the Child mandates that children be placed primarily in family-type care, with institutional care being a measure of last resort.
UNITED STATES In the United States a number of options exist for families affected with HIV/AIDS to plan for the future of their children. For example, parents can appoint a legal guardian, generally a non-parent, to serve as their child’s guardian in the event the parents become disabled. The legal guardian has the right to make important decisions for the children, including decisions about health care, education, and housing. However, giving up guardianship can also mean giving up legal authority to make decisions about one’s child. To avoid relinquishing this authority some parents turn to standby guardianship. Standby guardianship allows a parent to take care of his or child until he or she is no longer able to do so. Once the parent becomes unable to care for their child, the standby guardian assumes legal authority to exercise the rights of a guardian; thus, a triggering event is needed before the parent gives up his or her legal rights. Joint guardianships allow parents to appoint a legal guardian with whom to share legal guardianship. Once the parent dies, the joint guardian assumes sole
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responsibility. Some states also allow parents to plan for the future of their children through custody proceedings. In California, custodial rights can only be transferred between parents; transferring rights to a non-parent must take place through a guardianship proceeding. However, in New York, custodial rights entail physical custody of the child and also the legal rights to make decisions concerning the child’s life. A guardian can also be appointed through a last will and testament. However, a testamentary appointment is not binding upon a court. This is because the court will determine guardianship based on the best interests of the child. Parents can also choose to pursue adoption. Adoption terminates the parent–child relationship between the biological parents; the biological parents do not have legal rights of custody or visitation. The adoptive parents take full legal rights and obligations. Finally, some American states recognize standby adoptions under which adoptive parents take over when the biological parents become debilitated or die.
SOME HUMAN RIGHTS ACCORDS AND COMMITMENTS 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Article 10 provides that States must take measures to ensure women’s equal rights with men to education. Among the provisions of Article 12 is the requirement to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. Article 16 requires States Parties to eliminate discrimination against women in the context of marriage and family relations. 1993 World Conference on Human Rights, Declaration and Programme of Action (‘Vienna Declaration’): Article 41 recognises the importance of women’s right to enjoy the highest standard of physical and mental health throughout their life span. Throughout the document there are significant statements relating to women’s human rights and violence against women.
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1993 Declaration on the Elimination of Violence against Women: Article 4 calls on States to condemn violence against women and not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of elim-inating violence against women. 1994 International Conference on Population and Development (ICPD), Programme of Action: Article C, Chapter 7 addresses sexually transmitted diseases and the prevention of HIV from the perspective of women’s vulnerability to the epidemic, setting out key recommendations for addressing HIV through reproductive health services. 1995 Fourth World Conference on Women (‘Beijing’), Declaration and Platform for Action: Strategic Objective C.3 is to “Undertake gender-sensitive initiatives that address sexually transmitted diseases, HIV/AIDS and sexual and reproductive health issues”. 2000 Millennium Declaration and Development Goals: Goal 3 calls on nations to “Promote gender equality and empower women” and Goal 6 is to “Combat HIV/AIDS, malnutrition and other diseases”. 2001 UN General Assembly Special Session (UNGASS) on HIV/ AIDS, Declaration of Commitment: Article 14 of the Declaration stresses “that gender equality and the empowerment of women are fundamental elements in the reduction of the vulnerability of women and girls to HIV/AIDS”.
KEY INTERNATIONAL HUMAN RIGHTS INSTRUMENTS z
z z
z
International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Convention on the Elimination of all Forms of Discrimination against Women Convention on the Rights of the Child
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OTHER IMPORTANT DOCUMENTS z
z z
z
z
z
General Assembly Declaration of Commitment on HIV/ AIDS General Assembly Declaration on Violence against Women Committee on the Elimination of Discrimination against Women, General Recommendation No 24, ‘Women and Health’ Committee on Economic, Social and Cultural Rights, General Comment No 1 4 on ‘The right to the highest attainable standard of health’ Committee on the Rights of the Child, General Comment No 3, ‘HIV,/AIDS and the rights of the child’ International Guidelines on HIV/AIDS and Human Rights
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16 National Policy for the Empowerment of Women (2001) INTRODUCTION 1.1 The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. 1.2 Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at women’s advancement in different spheres. From the Fifth Five Year Plan (1974–78) onwards there has been a marked shift in the approach to women’s issues from welfare to development. In recent years, the empowerment of women has been recognized as the central issue in determining the status of women. The National Commission for Women was set up by an Act of Parliament in 1990 to safeguard the rights and legal entitlements of women. The 73rd and 74th Amendments (1993) to the Constitution of India have provided for reservation of seats in the local bodies of Panchayats and Municipalities for women, laying a strong foundation for their participation in decision making at the local levels. 1.3 India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993.
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1.4 The Mexico Plan of Action (1975), the Nairobi Forward Looking Strategies (1985), the Beijing Declaration as well as the Platform for Action (1995) and the Outcome Document adopted by the UNGA Session on Gender Equality and Development & Peace for the 21st century, titled “Further actions and initiatives to implement the Beijing Declaration and the Platform for Action” have been unreservedly endorsed by India for appropriate follow up. 1.5 The Policy also takes note of the commitments of the Ninth Five Year Plan and the other Sectoral Policies relating to empowerment of women. 1.6 The women’s movement and a wide-spread network of nonGovernment Organisations which have strong grass-roots presence and deep insight into women’s concerns which have contributed in inspiring initiatives for the empowerment of women. 1.7 However, there still exists a wide gap between the goals enunciated in the Constitution, legislation, policies, plans, programmes, and related mechanisms on the one hand and the situational reality of the status of women in India, on the other. This has been analyzed extensively in the Report of the Committee on the Status of Women in India, “Towards Equality”, 1974 and highlighted in the National Perspective Plan for Women, 1988–2000, the Shramshakti Report, 1988 and the Platform for Action, Five Years After—An Assessment. 1.8 Gender disparity manifests itself in various forms, the most obvious being the trend of continuously declining female ratio in the population in the last few decades. Social stereo-typing and violence at the domestic and societal levels are some of the other manifestations. Discrimination against girl children, adolescent girls and women persists in parts of the country. 1.9 The underlying causes of gender inequality are related to social and economic structure, which is based on informal and formal norms, and practices. 1.10 Consequently, the access of women particularly those belonging to weaker sections including Scheduled Castes/Scheduled Tribes/Other backward Classes and minorities, majority of whom are in the rural areas and in the informal, unorganized sector—to education, health and productive resources, among others, is inadequate. Therefore, they remain largely marginalized, poor and socially excluded.
National Policy for the Empowerment of Women
GOAL
AND
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OBJECTIVES
1.11 The goal of this Policy is to bring about the advancement, development and empowerment of women. The Policy will be widely disseminated so as to encourage active participation of all stakeholders for achieving its goals. Specifically, the objectives of this Policy include: (i) Creating an environment through positive economic and social policies for full development of women to enable them to realize their full potential (ii) The de-jure and de-facto enjoyment of all human rights and fundamental freedom by women on equal basis with men in all spheres—political, economic, social, cultural and civil (iii) Equal access to participation and decision making of women in social, political and economic life of the nation (iv) Equal access to women to health care, quality education at all levels, career and vocational guidance, employment, equal remuneration, occupational health and safety, social security and public office etc. (v) Strengthening legal systems aimed at elimination of all forms of discrimination against women (vi) Changing societal attitudes and community practices by active participation and involvement of both men and women. (vii) Mainstreaming a gender perspective in the development process. (viii) Elimination of discrimination and all forms of violence against women and the girl child; and (ix) Building and strengthening partnerships with civil society, particularly women’s organizations.
POLICY PRESCRIPTIONS Judicial Legal Systems 2.1 Legal-judicial system will be made more responsive and gender sensitive to women’s needs, especially in cases of domestic violence and
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personal assault. New laws will be enacted and existing laws reviewed to ensure that justice is quick and the punishment meted out to the culprits is commensurate with the severity of the offence. 2.2 At the initiative of and with the full participation of all stakeholders including community and religious leaders, the Policy would aim to encourage changes in personal laws such as those related to marriage, divorce, maintenance and guardianship so as to eliminate discrimination against women. 2.3 The evolution of property rights in a patriarchal system has contributed to the subordinate status of women. The Policy would aim to encourage changes in laws relating to ownership of property and inheritance by evolving consensus in order to make them gender just. Decision Making 3.1 Women’s equality in power sharing and active participation in decision making, including decision making in political process at all levels will be ensured for the achievement of the goals of empowerment. All measures will be taken to guarantee women equal access to and full participation in decision making bodies at every level, including the legislative, executive, judicial, corporate, statutory bodies, as also the advisory Commissions, Committees, Boards, Trusts, etc. Affirmative action such as reservations/quotas, including in higher legislative bodies, will be considered whenever necessary on a time bound basis. Women-friendly personnel policies will also be drawn up to encourage women to participate effectively in the developmental process. Mainstreaming a Gender Perspective in the Development Process 4.1 Policies, programmes and systems will be established to ensure mainstreaming of women’s perspectives in all developmental processes, as catalysts, participants and recipients. Wherever there are gaps in policies and programmes, women specific interventions would be undertaken to bridge these. Coordinating and monitoring mechanisms
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will also be devised to assess from time to time the progress of such mainstreaming mechanisms. Women’s issues and concerns as a result will specially be addressed and reflected in all concerned laws, sectoral policies, plans and programmes of action.
ECONOMIC EMPOWERMENT
OF
WOMEN
Poverty Eradication 5.1 Since women comprise the majority of the population below the poverty line and are very often in situations of extreme poverty, given the harsh realities of intra-household and social discrimination, macro economic policies and poverty eradication programmes will specifically address the needs and problems of such women. There will be improved implementation of programmes which are already women oriented with special targets for women. Steps will be taken for mobilization of poor women and convergence of services, by offering them a range of economic and social options, along with necessary support measures to enhance their capabilities. Micro Credit 5.2 In order to enhance women’s access to credit for consumption and production, the establishment of new and strengthening of existing micro-credit mechanisms and micro-finance institution will be undertaken so that the outreach of credit is enhanced. Other supportive measures would be taken to ensure adequate flow of credit through extant financial institutions and banks, so that all women below poverty line have easy access to credit. Women and Economy 5.3 Women’s perspectives will be included in designing and implementing macro-economic and social policies by institutionalizing their participation in such processes. Their contribution to socio-economic development as producers and workers will be recognized in the formal
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and informal sectors (including home based workers) and appropriate policies relating to employment and to her working conditions will be drawn up. Such measures could include: (i) Reinterpretation and redefinition of conventional concepts of work wherever necessary, e.g. in the Census records, to reflect women’s contribution as producers and workers. (ii) Preparation of satellite and national accounts. Development of appropriate methodologies for undertaking (i) and (ii) above. Globalization 5.4 Globalization has presented new challenges for the realization of the goal of women’s equality, the gender impact of which has not been systematically evaluated fully. However, from the micro-level studies that were commissioned by the Department of Women & Child Development, it is evident that there is a need for re-framing policies for access to employment and quality of employment. Benefits of the growing global economy have been unevenly distributed leading to wider economic disparities, the feminization of poverty, increased gender inequality through often deteriorating working conditions and unsafe working environment especially in the informal economy and rural areas. Strategies will be designed to enhance the capacity of women and empower them to meet the negative social and economic impacts, which may flow from the globalization process. Women and Agriculture 5.5 In view of the critical role of women in the agriculture and allied sectors, as producers, concentrated efforts will be made to ensure that benefits of training, extension and various programmes will reach them in proportion to their numbers. The programmes for training women in soil conservation, social forestry, dairy development and other occupations allied to agriculture like horticulture, livestock including small animal husbandry, poultry, fisheries, etc. will be expanded to benefit women workers in the agriculture sector.
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Women and Industry 5.6 The important role played by women in electronics, information technology and food processing and agro industry and textiles has been crucial to the development of these sectors. They would be given comprehensive support in terms of labour legislation, social security and other support services to participate in various industrial sectors. 5.7 Women at present cannot work in night shift in factories even if they wish to. Suitable measures will be taken to enable women to work on the night shift in factories. This will be accompanied with support services for security, transportation, etc. Support Services 5.8 The provision of support services for women, like child care facilities, including crèches at work places and educational institutions, homes for the aged and the disabled will be expanded and improved to create an enabling environment and to ensure their full cooperation in social, political and economic life. Women-friendly personnel policies will also be drawn up to encourage women to participate effectively in the developmental process.
SOCIAL EMPOWERMENT
OF
WOMEN
Education 6.1 Equal access to education for women and girls will be ensured. Special measures will be taken to eliminate discrimination, universalize education, eradicate illiteracy, create a gender-sensitive educational system, increase enrolment and retention rates of girls and improve the quality of education to facilitate life-long learning as well as development of occupation/vocation/technical skills by women. Reducing the gender gap in secondary and higher education would be a focus area. Sectoral time targets in existing policies will be achieved, with a special focus on girls and women, particularly those belonging to
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weaker sections including the Scheduled Castes/Scheduled Tribes/ Other Backward Classes/Minorities. Gender sensitive curricula would be developed at all levels of educational system in order to address sex stereotyping as one of the causes of gender discrimination. Health 6.2 A holistic approach to women’s health which includes both nutrition and health services will be adopted and special attention will be given to the needs of women and the girl at all stages of the life cycle. The reduction of infant mortality and maternal mortality, which are sensitive indicators of human development, is a priority concern. This policy reiterates the national demographic goals for Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR) set out in the National Population Policy 2000. Women should have access to comprehensive, affordable and quality health care. Measures will be adopted that take into account the reproductive rights of women to enable them to exercise informed choices, their vulnerability to sexual and health problems together with endemic, infectious and communicable diseases such as malaria, TB, and water borne diseases as well as hypertension and cardio-pulmonary diseases. The social, developmental and health consequences of HIV/AIDS and other sexually transmitted diseases will be tackled from a gender perspective. 6.3 To effectively meet problems of infant and maternal mortality, and early marriage, the availability of good and accurate data at micro level on deaths, birth and marriages is required. Strict implementation of registration of births and deaths would be ensured and registration of marriages would be made compulsory. 6.4 In accordance with the commitment of the National Population Policy (2000) to population stabilization, this Policy recognizes the critical need of men and women to have access to safe, effective and affordable methods of family planning of their choice and the need to suitably address the issues of early marriages and spacing of children. Interventions such as spread of education, compulsory registration of marriage and special programmes like BSY should impact on delaying the age of marriage so that by 2010 child marriages are eliminated. 6.5 Women’s traditional knowledge about health care and nutrition will be recognized through proper documentation and its use will
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be encouraged. The use of Indian and alternative systems of medicine will be enhanced within the framework of overall health infrastructure available for women. Nutrition 6.6 In view of the high risk of malnutrition and disease that women face at all the three critical stages, viz., infancy and childhood, adolescent and reproductive phase, focussed attention would be paid to meeting the nutritional needs of women at all stages of the life cycle. This is also important in view of the critical link between the health of adolescent girls, pregnant and lactating women with the health of infant and young children. Special efforts will be made to tackle the problem of macro and micro nutrient deficiencies especially amongst pregnant and lactating women as it leads to various diseases and disabilities. 6.7 Intra-household discrimination in nutritional matters vis-à-vis girls and women will be sought to be ended through appropriate strategies. Widespread use of nutrition education would be made to address the issues of intra-household imbalances in nutrition and the special needs of pregnant and lactating women. Women’s participation will also be ensured in the planning, superintendence and delivery of the system. Drinking Water and Sanitation 6.8 Special attention will be given to the needs of women in the provision of safe drinking water, sewage disposal, toilet facilities and sanitation within accessible reach of households, especially in rural areas and urban slums. Women’s participation will be ensured in the planning, delivery and maintenance of such services. Housing and Shelter 6.9 Women’s perspectives will be included in housing policies, planning of housing colonies and provision of shelter both in rural and urban areas. Special attention will be given for providing adequate
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and safe housing and accommodation for women including single women, heads of households, working women, students, apprentices and trainees. Environment 6.10 Women will be involved and their perspectives reflected in the policies and programmes for environment, conservation and restoration. Considering the impact of environmental factors on their livelihoods, women’s participation will be ensured in the conservation of the environment and control of environmental degradation. The vast majority of rural women still depend on the locally available non-commercial sources of energy such as animal dung, crop waste and fuel wood. In order to ensure the efficient use of these energy resources in an environmental friendly manner, the Policy will aim at promoting the programmes of non-conventional energy resources. Women will be involved in spreading the use of solar energy, biogas, smokeless chulahs and other rural application so as to have a visible impact of these measures in influencing eco-system and in changing the life styles of rural women. Science and Technology 6.11 Programmes will be strengthened to bring about a greater involvement of women in science and technology. These will include measures to motivate girls to take up science and technology for higher education and also ensure that development projects with scientific and technical inputs involve women fully. Efforts to develop a scientific temper and awareness will also be stepped up. Special measures would be taken for their training in areas where they have special skills like communication and information technology. Efforts to develop appropriate technologies suited to women’s needs as well as to reduce their drudgery will be given a special focus too. Women in Difficult Circumstances 6.12 In recognition of the diversity of women’s situations and in acknowledgement of the needs of specially disadvantaged groups,
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measures and programmes will be undertaken to provide them with special assistance. These groups include women in extreme poverty, destitute women, women in conflict situations, women affected by natural calamities, women in less developed regions, the disabled widows, elderly women, single women in difficult circumstances, women heading households, those displaced from employment, migrants, women who are victims of marital violence, deserted women and prostitutes, etc.
VIOLENCE AGAINST WOMEN 7.1 All forms of violence against women, physical and mental, whether at domestic or societal levels, including those arising from customs, traditions or accepted practices shall be dealt with effectively with a view to eliminate its incidence. Institutions and mechanisms/schemes for assistance will be created and strengthened for prevention of such violence, including sexual harassment at work place and customs like dowry; for the rehabilitation of the victims of violence and for taking effective action against the perpetrators of such violence. A special emphasis will also be laid on programmes and measures to deal with trafficking in women and girls.
RIGHTS
OF THE
GIRL CHILD
8.1 All forms of discrimination against the girl child and violation of her rights shall be eliminated by undertaking strong measures both preventive and punitive within and outside the family. These would relate specifically to strict enforcement of laws against prenatal sex selection and the practices of female foeticide, female infanticide, child marriage, child abuse and child prostitution, etc. Removal of discrimination in the treatment of the girl child within the family and outside and projection of a positive image of the girl child will be actively fostered. There will be special emphasis on the needs of the girl child and earmarking of substantial investments in the areas relating to food and nutrition, health and education, and in vocational
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education. In implementing programmes for eliminating child labour, there will be a special focus on girl children.
MASS MEDIA 9.1 Media will be used to portray images consistent with human dignity of girls and women. The Policy will specifically strive to remove demeaning, degrading and negative conventional stereotypical images of women and violence against women. Private sector partners and media networks will be involved at all levels to ensure equal access for women particularly in the area of information and communication technologies. The media would be encouraged to develop codes of conduct, professional guidelines and other self regulatory mechanisms to remove gender stereotypes and promote balanced portrayals of women and men.
OPERATIONAL STRATEGIES Action Plans 10.1 All Central and State Ministries will draw up time bound Action Plans for translating the Policy into a set of concrete actions, through a participatory process of consultation with Centre/State Departments of Women and Child Development and National/State Commissions for Women. The Plans will specifically including the following: (i) Measurable goals to be achieved by 2010. (ii) Identification and commitment of resources. (iii) Responsibilities for implementation of action points. (iv) Structures and mechanisms to ensure efficient monitoring, review and gender impact assessment of action points and policies. (v) Introduction of a gender perspective in the budgeting process.
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10.2 In order to support better planning and programme formulation and adequate allocation of resources, Gender Development Indices (GDI) will be developed by networking with specialized agencies. These could be analyzed and studied in depth. Gender auditing and development of evaluation mechanisms will also be undertaken along side. 10.3 Collection of gender disaggregated data by all primary data collecting agencies of the Central and State Governments as well as Research and Academic Institutions in the Public and Private Sectors will be undertaken. Data and information gaps in vital areas reflecting the status of women will be sought to be filled in by these immediately. All Ministries/Corporations/Banks and financial institutions, etc. will be advised to collect, collate, disseminate and maintain/publish data related to programmes and benefits on a gender disaggregated basis. This will help in meaningful planning and evaluation of policies. Institutional Mechanisms 11.1 Institutional mechanisms, to promote the advancement of women, which exist at the Central and State levels, will be strengthened. These will be through interventions as may be appropriate and will relate to, among others, provision of adequate resources, training and advocacy skills to effectively influence macro-policies, legislation, programmes, etc., to achieve the empowerment of women. 11.2 National and State Councils will be formed to oversee the operationalisation of the Policy on a regular basis. The National Council will be headed by the Prime Minister and the State Councils by the Chief Ministers and be broad in composition having representatives from the concerned Departments/Ministries, National and State Commissions for Women, Social Welfare Boards, representatives of Non-Government Organizations, Women’s Organisations, Corporate Sector, Trade Unions, financing institutions, academics, experts and social activists, etc. These bodies will review the progress made in implementing the Policy twice a year. The National Development Council will also be informed of the progress of the programme undertaken under the policy from time to time for advice and comments. 11.3 National and State Resource Centres on women will be established with mandates for collection and dissemination of information,
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undertaking research work, conducting surveys, implementing training and awareness generation programmes, etc. These Centres will link up with Women’s Studies Centres and other research and academic institutions through suitable information networking systems. 11.4 While institutions at the district level will be strengthened, at the grass-roots, women will be helped by Government through its programmes to organize and strengthen into Self-Help Groups (SHGs) at the Anganwadi/Village/Town level. The women’s groups will be helped to institutionalize themselves into registered societies and to federate at the Panchayat/Municipal level. These societies will bring about synergistic implementation of all the social and economic development programmes by drawing resources made available through Government and Non-Government channels, including banks and financial institutions and by establishing a close Interface with the Panchayats/Municipalities. Resource Management 12.1 Availability of adequate financial, human and market resources to implement the Policy will be managed by concerned Departments, financial credit institutions and banks, private sector, civil society and other connected institutions. This process will include: (a) Assessment of benefits flowing to women and resource allocation to the programmes relating to them through an exercise of gender budgeting. Appropriate changes in policies will be made to optimize benefits to women under these schemes. (b) Adequate resource allocation to develop and promote the policy outlined earlier based on (a) above by concerned Departments. (c) Developing synergy between personnel of Health, Rural Development, Education and Women & Child Development Department at field level and other village level functionaries. (d) Meeting credit needs by banks and financial credit institutions through suitable policy initiatives and development of new institutions in coordination with the Department of Women & Child Development.
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12.2 The strategy of Women’s Component Plan adopted in the Ninth Plan of ensuring that not less than 30% of benefits/funds flow to women from all Ministries and Departments will be implemented effectively so that the needs and interests of women and girls are addressed by all concerned sectors. The Department of Women and Child Development being the nodal Ministry will monitor and review the progress of the implementation of the Component Plan from time to time, in terms of both quality and quantity in collaboration with the Planning Commission. 12.3 Efforts will be made to channelize private sector investments too, to support programmes and projects for advancement of women. Legislation 13.1 The existing legislative structure will be reviewed and additional legislative measures taken by identified departments to implement the Policy. This will also involve a review of all existing laws including personal, customary and tribal laws, subordinate legislation, related rules as well as executive and administrative regulations to eliminate all gender discriminatory references. The process will be planned over a time period 2000–2003. The specific measures required would be evolved through a consultation process involving civil society, National Commission for Women and Department of Women and Child Development. In appropriate cases the consultation process would be widened to include other stakeholders too. 13.2 Effective implementation of legislation would be promoted by involving civil society and community. Appropriate changes in legislation will be undertaken, if necessary. 13.3 In addition, following other specific measures will be taken to implement the legislation effectively: (a) Strict enforcement of all relevant legal provisions and speedy redressal of grievances will be ensured, with a special focus on violence and gender related atrocities. (b) Measures to prevent and punish sexual harassment at the place of work, protection for women workers in the organized/ unorganized sector and strict enforcement of relevant laws such as Equal Remuneration Act and Minimum Wages Act will be undertaken.
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(c) Crimes against women, their incidence, prevention, investigation, detection and prosecution will be regularly reviewed at all Crime Review fora and Conferences at the Central, State and District levels. Recognised, local, voluntary organizations will be authorized to lodge complaints and facilitate registration, investigations and legal proceedings related to violence and atrocities against girls and women. (d) Women’s Cells in Police Stations, Encourage Women Police Stations Family Courts, Mahila Courts, Counselling Centres, Legal Aid Centres and Nyaya Panchayats will be strengthened and expanded to eliminate violence and atrocities against women. (e) Widespread dissemination of information on all aspects of legal rights, human rights and other entitlements of women, through specially designed legal literacy programmes and rights information programmes will be done. Gender Sensitization 14.1 Training of personnel of executive, legislative and judicial wings of the State, with a special focus on policy and programme framers, implementation and development agencies, law enforcement machinery and the judiciary, as well as non-governmental organizations will be undertaken. Other measures will include: (a) Promoting societal awareness to gender issues and women’s human rights. (b) Review of curriculum and educational materials to include gender education and human rights issues. (c) Removal of all references derogatory to the dignity of women from all public documents and legal instruments. (d) Use of different forms of mass media to communicate social messages relating to women’s equality and empowerment. Panchayati Raj Institutions 15.1 The 73rd and 74th Amendments (1993) to the Indian Constitution have served as a breakthrough towards ensuring equal access
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and increased participation in political power structure for women. The PRIs will play a central role in the process of enhancing women’s participation in public life. The PRIs and the local self-governments will be actively involved in the implementation and execution of the National Policy for Women at the grassroots level. Partnership with the Voluntary Sector Organizations 16.1 The involvement of voluntary organizations, associations, federations, trade unions, non-governmental organizations, women’s organizations, as well as institutions dealing with education, training and research will be ensured in the formulation, implementation, monitoring and review of all policies and programmes affecting women. Towards this end, they will be provided with appropriate support related to resources and capacity building and facilitated to participate actively in the process of the empowerment of women. International Cooperation 17.1 The Policy will aim at implementation of international obligations/commitments in all sectors on empowerment of women such as the Convention on All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), International Conference on Population and Development (ICPD+5) and other such instruments. International, regional and sub-regional cooperation towards the empowerment of women will continue to be encouraged through sharing of experiences, exchange of ideas and technology, networking with institutions and organizations and through bilateral and multi-lateral partnerships.
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17 Women, Trafficking and Statelessness in South Asia* PAULA BANERJEE
I
t is estimated that around twenty-seven million people today are living in conditions similar to that of slavery and human trafficking has become a global industry worth $12 billion a year.1 It is even more baffling to note that twice as many people are enslaved today than during the days of African slave trade. How can that be and what exactly is human trafficking? Human trafficking can be described as the forced movement of people for purposes of labour, such as prostitution and other kinds of work, including domestic work. If one looks at the history of the term “trafficking” it can be traced back to “white slave trade”. Before the great wars it meant the coercion or transportation of Caucasian women to the colonies to service white male officers. From 1904 there were efforts to stop “white slave trade” leading to the Convention for the Suppression of the Traffic in Person and the Exploitation of Others in 1949. It is the Palermo Protocol to the United Nations Convention against Transnational Organized Crime that made trafficking in persons an international criminal offence in the year 2000. The Protocol was drafted to meet all aspects of trafficking, whether for sexual or labour exploitation. The Protocols objectives are to prevent trafficking, punish traffickers and protect victims. The Protocol urges states to criminalise trafficking. It also ∗ This article has been published earlier in Refugee Watch, Issue no. 27, June 2006, CRG.
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specifies the activities, means and purposes that constitute the offence. The important features of the Protocol are: 1) The activities involve: recruitment, transportation, transfer, harbouring or receipt of persons. 2) The means include: threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of other giving or receiving of payments or benefits to achieve the consent of a person having control over another person. 3) The activity must be for the purpose of exploitation, which must include—inter alia exploitation for prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, or servitude.2 The Protocol makes it clear that consent of the victim is irrelevant if means such as these are used. No doubt that such a Protocol is definitely a step forward even though it does not give a watertight definition of trafficking or define terms such as “exploitation, coercion and vulnerability”. Yet notwithstanding the Protocol today the estimated profit from prostitution and forced labour of trafficked persons amounts to $ 8 to $ 10 billion annually.3 The global trade in human trafficking has boomed and the victims are largely women and children from the developing world. This cheap availability of flesh is exacerbated by another phenomenon that can be termed as statelessness. For in the words of Senator Brownback of Kansas, “this ready reservoir of stateless presents an opportunity rife for exploitation by human traffickers.”4 “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality”, declares Article 15 of the Universal Declaration of Human Rights (UDHR).5 Yet today thousands are deprived of their nationality in many different parts of the world and South Asia is no exception. This happens because as per international law it is the state that decides who are its citizens and who are not. In this process of inclusion and exclusion many are denied citizenship by any state and so they become stateless. The case of Rohingyas of Myanmar, Chakmas in parts of Northeast India, Biharis in Bangladesh and
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Lhotsampas from Bhutan immediately comes to ones mind if one only looks at South Asia. People deprived of a nationality are called stateless.6 There are many reasons for statelessness. The Rohingyas are deprived of their nationality by the Burmese junta because they are considered as recalcitrant. The Chakmas were encouraged by the Indian government to come and settle in India when they were displaced from the Chittagong Hill Tracts due to the building of the Kaptai Dam in 1962 but the Indian government neither gave them citizenship nor refugee status and so they became stateless. Many Muslims from Bihar left India during partition as they wanted to become Pakistani citizens but they could only travel to East Pakistan. When East Pakistan became Bangladesh they were denied Bangladeshi citizenship and not conferred a new Pakistani citizenship by the government of Pakistan and so they lost their nationality. As for the Lhotsampas, the Bhutanese monarchy marked them as Nepali aliens and deprived them of their nationality. About a 100,000 of them are today living in UNHCR run refugee camps in Jhapa. Statelessness itself is a huge problem in South Asia. The problem of statelessness multiplies manifold when these hapless people fall victim to human traffickers. This essay will reflect, with examples taken from South Asia, on how statelessness both causes and is an effect of human trafficking. It will also reflect on the fact that the perceived gendered nature of trafficking in South Asia makes it a low priority for South Asian states and so states do little to contain this problem. By their inability to create a regional mechanism against trafficking the South Asian states are contributing to the violation of both women’s rights and human rights and increasing both the number and the plight of stateless people.
TRAFFICKING: A RESULT
OF
STATELESSNESS
That statelessness results in human trafficking is borne out by the situation of displaced ethnic minorities from Myanmar such as the Chins and the Rohingyas. Since independence, Burma has been torn apart by civil wars between the central government and the various opposing ethnic groups. Such ethnic rivalries were in part a
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legacy of the divide and rule policy of the occupying British government and in part the policy of discrimination practised by the ruling elite. Political instability in Burma, later renamed as Myanmar, led to the military coup of 1962. Since then a ruthless military junta rules the country. This junta has suppressed any dissent from either the ethnic groups or pro-democracy movements leading to massive desertion and displacements. There are many ethnic minorities that have suffered discrimination under successive Burmese governments, and massive persecution by the present Burmese regime. Ethnic minorities such as Chins and Rohingyas are often denied citizenship by the junta by simple means of refusing to give these people identity cards. Following the brutal crackdown of 1988 by the State Law and Order Restoration Council (SLORC), against democratic movements in Burma refugees came to Mizoram in large numbers. Refugee camps were set up in Champai and Saiha districts of Mizoram to accommodate these Chin refugees by the Mizoram Government. However, these camps were closed down in 1994/95 when the Indo–Myanmar border trade talks began. One of the main reasons for closing down the camps was the request of the Burmese government, which believed that the Chin National Front (CNF), who is fighting for the independence of Chin State, was operating from these camps. Since then the Chin refugees have been scattered all over Mizoram and forced to find work for their survival. Government of India followed largely a hands-off policy regarding the Chin refugees. It has so far allowed the Mizoram government a free hand to deal with the situation. In September 1994 and in June 1995, when the ongoing anti-foreigner movement in Mizoram targeted the Chins, and statements were made by local politicians that all foreigners including the Chins would be pushed back, a large number of Chin refugees came to Delhi and requested UNHCR for protection and help. But even the UNHCR could do very little for these Chins and the Mizoram government pushed large numbers of them back, contrary to the principles of nonrefoulement. Even today in any given month there are a number of news in newspapers from Northeast India about the expelling of these migrants from one or the other of the Northeastern states. One such news item quoted the Home Minister of Mizoram stating that: We guess there could be at least 30,000 Myanmar nationals illegally staying in Mizoram. Anybody found staying illegally would be deported or their
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applications for asylum might be taken up. The decision to intensify a drive to detect illegal settlers from neighbouring Myanmar follows an anti-foreigners uprising by local groups in the hill state of Mizoram.7
As in any displaced population more than fifty per cent of the Chins who came to India were women.8 Many of these women took up jobs in local schools. Yet when the pushback came even they were not spared. Chin women come to India both for reasons of political persecution and to earn money. As one Chin woman told Refugee International, “it is true that I have come to Mizoram to earn money. The Burmese army forcibly conscripted my son. I have not seen him for more than two years. My husband is sick and he cannot work. I try to earn enough to feed him and my three small children, and for my husband’s medical care, but each month, for many days, I am compelled to do labour for the SPDC. What alternative do I have but to come here, earn money and take it back with me to Burma? If I don’t come to Mizoram, my family in Burma will not survive.”9 In the case of another Chin woman whose father was a Christian pastor the weapon of push back was used without any legal action. She said she was arrested in Burma in 1993 after she spoke against the Government within earshot of an army officer. She said the officer beat and raped her. She fled to India but last year was returned to Burma. The abuse that she faced was not ground enough to give her refugee status in India. She was never tried under the Foreigners Act and was merely pushed back. On going back she continued her political activity when she heard that the military was after her she fled to Guam. When she arrived, she tested positive for tuberculosis in a skin test. Because she was pregnant, officials were afraid to take an X-ray. Instead, they kept her in isolation. But when the church group toured the prison and found the woman, they were alarmed by the effect of months of isolation on this woman. The Reverend Jerry Elmore, pastor of the University Baptist Church, offered to sponsor the woman himself so she could be released from custody to his care.10 The situation of this woman is not exceptional. Such cases are happening in increasing frequency. Young women who are particularly vulnerable to sexual harassment are being abused by the police and then pushed back.11 The women are not given the status of refugees as sexual abuse is never grounds for such a status. Denied
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citizenship by the Myanmar government and refugee status by the Government of India (GOI) these women become stateless. Small wonder then that they fall prey to traffickers as is portrayed by the fate of many Chin and Rohingya women. The situation of the Rohingya women is even worse than the Chins. These women are Muslims and are considered “resident foreigners” even in their homeland. Their subordinate status within their own community discourages them from procuring education or working outside their homes. The State authorities and the army habitually sexually abuse them. Sayeeda, an 18-year-old Rohingya girl, who has had some education, was of the opinion that the state machinery used rape as a way to push women out of Myanmar.12 Forced relocation especially without compensation is also used to push women out of Myanmar.13 These women are first taken to Bangladesh. But after the UNHCR repatriation programme started in Bangladesh new arrivals were no longer admitted to UNHCR camps. They were often pushed across the borders to India and then to Pakistan. The Rohingya population in Pakistan is mostly concentrated in the suburbs of Karachi, including Korangi, Orangi and Landhi. Rohingya settlements are named after their place of origin, such as “Arakanabad”, “Burmi colony”, “Arakan Colony”, etc. All these settlements receive regular visits from law-enforcement agencies extorting money from their undocumented inhabitants. The Government of Pakistan has largely ignored the issue of trafficking of Rohingya women. Besides the risk of being sold Rohingya women become victims of slavery through debt bondage. “Because of their undocumented status, Rohingya women constantly face arrest and imprisonment.”14 The Chin and the Rohingya women epitomise the plight of stateless women in South Asia. Unwanted in their homeland the women are victims of gender-based crimes such as rape, which are hardly ever proved, and their perpetrators are almost never punished. In a foreign country without any supporting documents these women are disenfranchised and depoliticised. They are unable to protest against sexual crimes for want of a legal status. The abuse that had pushed them across international border in the first place often seems to follow them in their new settlements. If they successfully repatriate to their birthplace they are still in a state of not belonging. In patriarchal systems women are constantly reduced to the status of
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non-subjects. Crimes that are perpetrated particularly against women are often trivialised. In such a situation no matter what the abuse, women try to cross borders for the sake of survival and become easy prey for traffickers. The Rohingya women are de jure stateless but there are many displaced women who are not de jure stateless but become de facto stateless in their situation of displacement. This is borne by the circumstances of women living in the refugee and IDP camps. Many refugee women and young men living in refugee and IDP camps become depoliticised and are unable to exercise their political rights. In such a situation they are unable to access resources for their living and fall victims to human traffickers. The situation of Sri Lankan refugees in India is a case in point. By 1989 there were about 160,000 refugees from Sri Lanka to India, again largely women with their dependents. Initially the State Government provided these refugees with shelter and rations, but still many of them preferred to live outside the camps. Although the Sri Lankan refugees were given a political status by the GOI their plight was still unmitigated. They were registered and issued with refugee certificates. In terms of education and health both registered and unregistered refugees enjoy the same rights as the nationals. Nevertheless in absence of specific legislation their legal status remains ambiguous.15 The precarious nature of their status became clearer in the aftermath of Rajiv Gandhi’s assassination. NGOs access to the camps, refugee’s freedom of movement and access to education and informal occupations were all severely curtailed. On January 6, 1992 the Indian and the Sri Lankan governments signed a bilateral agreement to begin refugee repatriation on 20 January. Soon the programme was suspended when UNHCR raised doubts about the safety of the refugees once they return.16 In July 1992 the GOI signed an agreement with the UNHCR and allowed the agency a token presence in Madras. By April 1993 refugee camps were reduced from 237 to 132 in Tamil Nadu and 1 in Orissa.17 Representatives of UNHCR were allowed to be in the transit area and could speak to returning refugees. Before conflict was resumed in 1995 some 55,000 refugees were repatriated from India to Sri Lanka. After Rajiv Gandhi’s assassination the politicians began to shun the refugees.18 As most of these were women they were initially considered harmless but with the number of female suicide bombers swelling there
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was a marked change in GOI’s attitude to women refugees.19 What the government of India failed to acknowledge was that the number of female bombers swelled after the IPKF operations.20 The government turned a blind eye when touts came to recruit young women from the refugee camps in Tamil Nadu to work as “maids” in countries of Middle East. Most of these women were then smuggled out of India and sent to the Gulf countries. Often they were badly abused. One such case that caught the public eye was that of a young girl called Sivitha. She was smuggled to the Gulf with thirty other women. Her employer “took sadistic pleasure in thrashing her”. Twice she fell into a coma. Unable to bear this she sought refuge in the Sri Lankan embassy. She was sent back to Sri Lanka, into the war torn area of Vavuniya. She tried to get back to India to her parents but failed. Ultimately she committed suicide.21 Even when the situation is not so extreme it is still traumatic for young women. In Indian camps refugee families are given a dole of Rs 150 a month, which is often stopped arbitrarily. Women are discouraged from taking up employment outside the camps. During multiple displacements women who have never coped with such situations before are often at a loss for necessary papers. When separated from male members of their family they are vulnerable to sexual abuse. The camps are not conducive for the personal safety of women, as they enjoy no privacy. But what is more worrying is that without any institutional support women become particularly vulnerable to human traffickers. These people aided by network of criminals force women into prostitution. Millions of rupees change hands in this trade and more lives get wrecked every day.22 In a situation of statelessness, sexual abuse and human trafficking go hand in hand. This is portrayed by the case of Nepali speaking Bhutanese refugees. These southern Bhutanese refugees were deprived of their citizenship by the Citizenship Act of 1985 and then driven away from their homes from 1990 onwards. This happened in the wake of Drukpanization of the Bhutanese people. The government devised various strategies to bring about a demographic balance that was favourable for a Drukpa/Ngalung nation by reducing the number of Lhotsampas to around twenty-five per cent of the population and to prevent the demand for democracy from southern Bhutan. The Marriage Act was even more discriminatory for Lhotsampa women and
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children. The Act declared all foreign wives of the Bhutanese citizens as non-citizens, even though most of them were granted citizenship under previous citizenship laws. In contravention of all international norms the Royal Government denied several thousand children (born out of marriages between Lhotsampa husbands and Nepali speaking wives from Nepal or India) of their right to nationality. They were evicted along with their parents. This Act was only enforced against the Lhotsampas. The Lhotsampas who married non-Bhutanese wives could not get jobs in either the Armed Forces or the Foreign Services. They did not have the right to vote in the National Assembly elections, they were often denied promotions in civil services and were denied most fellowships and grants. They were also denied business and agricultural grants and loans given by the government and could not avail of government supplied fertilisers, seeds and farm machineries on subsidies. After 1988 government officials carrying out the census declared all non-Bhutanese wives of Lhotsampas as illegal immigrants. These women were threatened with deportation and so many such women committed suicide. These South Bhutanese people were asked to prove their presence in Bhutan on 31 December 1958. If people failed to provide the evidence sought they were declared as illegal migrants and then evicted. By the 1990s more than 125,000 Nepali-speaking Lhotsampas of Southern Bhutan, nearly a sixth of the kingdom’s total population of approximately 782,548 were forced to leave or forcibly evicted from the country by the Bhutanese government. This made Bhutan as one of the highest per capita refugee generators in the world. As on March 2001, 98,886 Bhutanese refugees are living in seven refugee camps in eastern Nepal managed by the UNHCR. About 25,000 are living in India and some are scattered in the hills and valleys of Nepal. Many southern Bhutanese are living in UNHCR run refugee camps. Recent reports suggest that many of these women in the camps are facing problems. A number of them fled systematic discrimination including rape, imprisonment and forced labour. In the camps although the women were individually registered but still they faced discrimination as they did not get separate ration cards. This made it difficult for women to access their fair share of aid. The male dominated leadership in the camp often ignored the
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sexual violence and domestic violence that a number of women faced. Also the camp management often undertook the work of providing assistance to women. This also meant that aid was given on an ad hoc basis to women who did not have any male support. Several cases of sexual exploitation involving refugee aid workers surfaced in Nepal in October 2002. These came to light after investigations of sexual exploitation and abuse by aid workers in refugee camps in West Africa.23 In 2003 the UN High Commissioner for Refugees declared that they would begin phasing out aid from camps. This meant an even more precarious situation for women. Faced with no hope for repatriation, abused by their own male members and aid workers these women became easy prey for human traffickers. Many of them ended in brothels in Mumbai and elsewhere. Statelessness makes women even more vulnerable to displacement. In patriarchal societies such as those found in South Asia women are usually looked upon as unequal partners in the process of state formation. It is the men who represent the ideal citizen. In such a situation women are more vulnerable to the vagaries of the state and denials of citizenship as is apparent from the case of the Southern Bhutanese women. Once citizenship is denied then it becomes much easier to evict and displace women. In such situations women become so vulnerable that they fall prey to different kinds of abuses. Trafficking is the worst form of abuse that is meted out to these women. From the examples above it becomes clear that statelessness contribute to women’s vulnerability leading to an increase in human trafficking. However, there is another side to this argument and that is trafficking leads to statelessness. There is a plethora of examples where once trafficked women end up being stateless. Let us look into this phenomenon now with examples taken from South Asia.
TRAFFICKING: A CAUSE
OF
STATELESSNESS
Etienne Balibar has argued that the fissures in the “modern political community” emerge from the “practical and ideological sexism as a structure of interior exclusion of women generalized to the whole society,” which leads to the “universalization of sexual difference.”24
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Thus, modern states that are built on gender difference develop a precarious relation with its women. Women became both subjects of the state as well as its other. In pluralistic societies such as those found in South Asia “the modern projects of national independence, state building, and economic development have had distinctive gender implications and outcomes.”25 The nation building projects in South Asia has led to the creation of a homogenised identity of citizenship. State machineries seek to create a “unified” and “national” citizenry that accepts the central role of the existing elite. This is done through privileging majoritarian, male and monolithic cultural values that deny the space to difference. Such a denial has often led to the segregation of minorities, on the basis of caste, religion and gender from the collective we. I argue that one way of marginalising women from body politic is done by targeting them and displacing them. Patricia Tuitt has commented that, “space in its physical and mental form is organized between race, class and gender among other factors.”26 Women’s relation to space is therefore different from that of men. Since displacement is intrinsically related to space women respond differently from men in situations of displacement. Taken together with women’s traditional distance from state power it means that at least initially women are often at a loss to cope with displacement. Women are often unaware of the value of identity papers in times of displacement and therefore their vulnerabilities increase in times of displacement resulting in further victimization. Also women’s distance from state power distances them from ownership of resources. Situations of endemic poverty lead to pauperization of women and an increase in trafficking of women. The situation of Bangladesh is a case in point. Recent newspaper reports from the borders of India and Bangladesh are rife with news of the growing trafficking of women and children from Bangladesh into this region. To find out why this whole region is vulnerable to traffickers one needs to realize that this is a region of endemic poverty, social imbalance and political violence particularly against vulnerable groups of whom women form a large part. This region is undergoing certain social and political turmoil where more and more women are getting marginalized. In Bangladesh for example effects of globalisation, growth of fundamentalism, modernization policies such as building of dams, etc. have all contributed to violence against ethnic and religious minorities, and against women. Of course
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minority women are in a double bind. They are attacked both as minorities and as women. The fundamentalists who have increased their control in the political arena strive to maintain a predominantly male-dominant status quo. This strategy puts both minorities and women in general in the receiving end. Religion has come to be used by fundamentalist groups as one of the primary means by which male-dominant values and existing gender-oppressive ideology are imposed and perpetuated. According to Meghna Guhathakurta, “it was advantageous therefore for the fundamentalists to target women who step outside the bounds of social norms since they represented a potential threat to the male-dominant status quo”.27 To compound all of these developments there is endemic poverty and land alienation of poorer groups of people in chars (enclaves). Such developments have led to widespread control and destabilization of women in the region leading to their displacement. A fall-out of this is an increase of trafficking of women and children across the border. To these another cause can be added that directly affects the scenario of trafficking of women from Bangladesh. The immediate past and the present governments have has embarked on a policy of brothel eviction. One of the biggest brothels in Bangladesh is in Tanbazar in Narayanganj. This brothel started during the colonial period. Later, many internally displaced women gathered in the area and were dependent on this brothel for their livelihood. In July 1999 sex workers from this brothel were evicted by the government and sent to vagabond centres where there are evidences that they were severely mistreated. In such situations it is not surprising that women fall prey to traffickers and cross borders for survival. Women from Bangladesh are not the only group of women who are trafficked in this region. There is an increase in cases of trafficking from Northeast India as well. Evidence gleaned from Northeast Indian media reports clearly portrays such a phenomenon. In a newspaper report from Northeast India it was found out that: Of late, there have been reports in the media that trafficking in women is taking place from Assam and other states of the North-east, and a well established conduit is functioning to dispatch the hapless women to the metros of the country. The target is obviously the poor girls who are easily enticed with the lure of money and a promise of a respectable job either as a “maid” or a “sales girl” in a house or establishment. Apparently, there are local connivers who function as a cover for the operators.28
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In another recent newspaper report it was stated, “Human trafficking is not a new problem in our country. What is of concern is that, of late, the north-east has become a supply zone for trafficking of women and children not only in the flesh trade but for forced labour, child labour, organ transplantation, camel jockey and others.”29 The protracted state versus community and community versus community conflicts has resulted in an escalation of violence against women. Increase in trafficking of women can be seen as a result of this escalated violence. The other region that has been seriously affected by an increase of human trafficking in South Asia is Nepal. The popularly termed Maoist rebellion has exacerbated the situation further. Nepal is considered the most significant source of girl-child commercial sex workers in India. The girls that come from Nepal to Indian brothels are as young as 9 to 10 year olds. In this era of globalisation, tourism has become another occasion for child trafficking from Nepal. Although Nepal has signed various international conventions and passed the Human Trafficking (Control) Act of 1986 these Acts are hardly ever implemented. Trafficking of Nepali women to India continue unabated. A very disturbing phenomenon within this process is that young Nepali “virgins” are trafficked because people not only prefer their fairer complexion but also there is a ridiculous but common belief among some communities that having intercourse with a young girl can cure many sexually transmitted diseases as well as AIDS. Hence Nepali girls are in great demand in India. The magnitude of the problem can be understood from one report that states that, “at least 200,000 girls and women of Nepali origin are currently working as prostitutes in Indian brothels, and that about 5,000 arrive annually”.30 Once these women are trafficked they lose most of their rights and become virtual stateless people. Even migrant women workers from Nepal end up being trafficked. In Nepal there are no specific laws or acts to protect the women migrant workers. One report suggests: There are cases where the journey starts as a migrant worker but ends up in brothel primarily because there are no authorized or safe channels for women migrant workers where their employment and payment for their work are guaranteed. In most cases the migration occurs without any legal or authorized
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documents. Unskilled female workers, between the age group of 9 to 25 years are the vulnerable group for trafficking. 31
Moreover most of these women do not have documents that prove their legal identities and this becomes a primary reason for their vulnerability and statelessness. Without papers nowhere are they able to access either their rights or justice. These women do not have any unions to protect their interests and neither do they have linkages with their embassies. Also most of these women come from very poor families so even their family networks are unable to protect them. Often their families are responsible for selling them. So in times of need these women are unable to turn to the state, community or family. In South Asia, Nepal and Bangladesh are the big suppliers of women and children into the flesh market with Northeast and East India steadily increasing their supplies as well. India is the major receiving country. The size of India’s flesh trade can be understood from a report of the Save Our Sisters Movement. The report states that there are 10 million prostitutes in India of whom a 100,000 are in the city of Mumbai alone. The red light districts in Mumbai generate annual revenue of $ 400 million and children as young as 9 years are put up in auction where they can fetch up to Rs 60,000. People from as far as Gulf countries come for these biddings. The same report suggests that more than 40 per cent of the 484 girls rescued from Mumbai in 1996 were from Nepal. The same report states further that: A sizeable proportion of prostitutes found in Kamathipura or Sonagachi, the infamous red-light area of Mumbai and Kolkata respectively are of Nepalese origin. What is more disturbing to note, however, is that of the 5000–7000 Nepalese girls trafficked into India yearly, the average age over the past decade has fallen from 14–16 years to 10–14 years…. Trafficking in women and girls is easy along the 1,740 mile long open border between India and Nepal. The trafficking of girls is considered less risky than that of drugs or narcotics…. The girls are bought for a measly sum of Rs 1,000 and can fetch upto Rs 30,000 in later transaction. Satellite towns of the Indian states of Bihar and Uttar Pradesh such as Begusarai, Dhaulpur and Gorakhpur are allegedly ‘market centres’ for transporting girls from Nepal and Bangladesh. What is more disturbing to note are the players in the organized chain of cross border trafficking which often includes the cross border policemen—the very people who are assigned to protect and combat the problem.32
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But India is not the only receiving country and Nepal and Bangladesh not the only suppliers. In this region all countries supply and receive trafficked people. Pakistan is often the destination point for those trafficked from Bangladesh, Burma and Central Asia. It is also the recruiting ground for women from within the country. Pakistan is also a source and transit country for young boys who are trafficked to the United Arab Emirates, Kuwait and Qatar to act as camel jockeys. Women trafficked from East Asian countries to the Middle East also transit through Pakistan. The first incidence of trafficking in Pakistan was brought to light in the 1980s when it was found out that a number of Bangladeshi women were languishing in Karachi jails. On investigation it came to light that these women were brought in by illegal means with promises of better jobs. A report states that about 200,000 women were trafficked from Bangladesh to Pakistan. Other than commercial sex these trafficked women also work as domestic labourers.33 Trafficking is not a problem of just one country but of the entire region of South Asia if not the world. Most researchers agree that more women and children are trafficked than men. The Tsunami of 26 December 2004 also enormously increased the number of trafficked people from South Asia. These people are trafficked not just for commercial sex trade but also for the purposes of labour. That trafficking is as much of a problem for the developing world as it is for the developed is portrayed by the events in Morecambe Bay in 2005. It has also portrayed that people become extremely vulnerable in the course of being trafficked. They are reduced to this state because they are what the French call sans papier or without papers. Victims of trafficking almost never carry their own identity papers. If they have such documentations they have to hand it over to the agents. There are well-documented cases of Bangladeshi labourers travelling to Southeast Asia where they are forced to live and die as illegal migrants so that they cannot get out from the clutches of agents who live on the money that these hapless people have earned. According to one report: Forced labour can be analysed by considering the forms of coercion used to retain a worker. These can be physical and sexual violence, threats of violence, debt bondage, threats and intimidation based on immigration status, blackmailing, and confiscation of identity documents or withholding
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of payments. The use of these forms of coercion is made more effective if the migrant is dependent on an agent or employer, either because of incurred debts or the restrictions of work permits. This dependency may be actively fostered to increase control over the worker.34
For women the situation is even worse. At least in the case of South Asia most women are not used to carrying identity papers. Even in their own homes it would be difficult for them to prove their national identities. As for women who are trafficked it becomes even more of a problem. They are in a permanent state of not belonging. Hardly ever do they have any papers. The moment they cross borders they become stateless and liable for prosecution if they are caught. They are threatened, persecuted, abused and kept in a constant state of insecurity. They are unable to protest because they are stateless. In all countries of South Asia stateless people are dealt with much severity notwithstanding the fact that they have been trafficked. In fact in countries such as India stateless people are marked as “illegal migrants” and are equated with terrorists. This is borne out by a comment made by the leader of the opposition party Lal Krishna Advani. He said that, “Infiltration of foreigners from Bangladesh and terrorism are two of the biggest threats faced by the country today.” In the same report, “Advani expressed the view that the infiltration of foreigners has posed a threat to the entire country, particularly the North-Eastern states, Bihar and West Bengal. No country in the world is taking the problem of illegal migration so casually.”35 In such a mood the women face the worst form of abuse. Very often no cases are lodged against them but they are kept overnight in BSF barracks where they can be sexually abused and then they are pushed back. That this is a region of extreme insecurity for women crossing the border without any documentation has been dramatically portrayed by the case of one Jayanti Bala Das of Bangladesh.36 Das was sexually abused by the BSF and then forced to go back in a leaky boat in the middle of the night and the boat capsized. Luckily she survived and her plight brought to light the plight of stateless women. Therefore, statelessness is an inevitable result of trafficking that thousands of women are facing today. The seriousness of the problem can be understood from the fact that in 2006, the state of West Bengal is supposed to hold the state elections. In that election forty sex workers from the Kalighat have
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been denied the right to vote even though they have been living in the same area for over ten years. Notwithstanding international protocol these women are shunned as stateless women. The magnitude of the situation can be understood by the threat of all the sex workers from the same area to boycott the elections as they are aware that the fate of women who are denied from voting might become more precarious if the state decides to push them beyond the borders.37
CONCLUSION I began this essay by stating that one of the most important rights that a human being is supposed to enjoy is the right to nationality. Yet there are stateless people all over the world who are denied this right. The 1930 Hague Convention, the 1948 UDHR, the 1954 Convention Relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of Child among others are efforts to reduce the scourge of statelessness. The EU has drafted the 1997 European Convention on Nationality. Yet Asia has no such mechanisms even though most Asian states are signatories to many of these conventions. In South Asia a lack of legal mechanisms for addressing the problem of statelessness is compounded by the endemic poverty of the region leading to greater pauperisation of women, heightened conflict leading to increased violence against women and a general proclivity of all these states for treating women as secondclass nationals have all contributed to a great increase in the trafficking for women. Further there are many South Asian women who are stateless. If stateless then women are at a greater risk to fall prey to traffickers and once they are victims of trafficking they become de facto stateless people. Yet there is hardly a sense of urgency to change the situation. Though liberal South Asian laws and constitutions guarantee people’s right to be protected from exploitation and thereby prohibits trafficking too but no amount of liberal and humanitarian legislation has been able to stop this form of servitude or semi-servitude of large
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groups of women. Most South Asian states such as India, Nepal, Bangladesh, Pakistan and Sri Lanka has legal provisions that condemn trafficking yet their implementation is often unsatisfactory. In 2002 the government of Pakistan passed a law that criminalizes all aspects of trafficking, from recruitment and transporting to receiving a person. Yet in Pakistan when forced prostitution cases are prosecuted under Islamic law or Hudood ordinances then victims are reluctant to testify because the woman’s testimony is tantamount to an admission of adultery if prosecutors conclude that her testimony does not meet the burden of proof. As for India even though there are legal mechanisms but the fact of the matter is that efforts to stop trafficking is still considered a low priority issue for the state. After the Tsunami most women’s groups particularly felt that women’s safety and their needs was low priority for communities and the State even when these women and children were falling prey to traffickers. In a different context I had written that South Asian states, “at best patronise women and at worse infantilise, disenfranchise and de-politicise them.”38 This is perhaps the reason why trafficking, which is often considered a women’s issue, is hardly ever given the notice and concern that it deserves. In Asia there are hardly any regional mechanisms to address this issue other than the Bangkok Declaration of 1999. Yet the severity of the problem has multiplied because trafficking is often accompanied by such banes as AIDS. According to one observer, “Women and children who are trafficked are at high risk for infection with HIV, which is a death sentence for the victims.”39 That trafficking has a serious correlation with AIDS at least in the context of South Asia is proved by the fact that the routes that traffickers take are also the places where there is almost an explosion of HIV positive cases in the recent years. Newspaper reports from the borders of India and Bangladesh, including the states of the Northeast are rife with news of the growing trafficking of women and children in this region. Also almost every day there is news from the regions discussing the alarming spread of HIV positive and AIDS cases. I have already highlighted some of the news items on trafficking in this region in the previous section. Here I want to portray how AIDS has become a major problem for people living in Northeast India that falls within the trafficking zones. Some news items from the region state that the HIV virus was spreading because of the, “nonchalant sharing of the syringes by drug addicts and the sexual profligacy of
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a section of the people”.40 Others state that “the rampant influx of people to the state as one of the main factor responsible for the spread of Human Immune Deficiency Virus (HIV).”41 Still other news items state that, “The latest transmission trend is all the more alarming as HIV/AIDS is no longer confined to injecting drug users. It has spread to general population and increasingly the virus is taking the sexual route and women and children are being infected steadily.”42 Most of these news items show concern over the rampant migration of people in the region and trafficking is the worst form of forced migration. Added to this trafficking for commercial sex is one of the potent causes for increase in HIV infection in the region. Women and children who are trafficked can hardly ever insist on their physical security. And in the brothels as one observer comments the only law that operates “is the law that grants men the right to buy sex. International declarations and national legal codes that attempt to outlaw prostitution or contain its excesses are little more than well-meaning but empty gestures.”43 The paperless state or lack of identity papers of these women and children make them very vulnerable and reduce them to a state of semi bondage. Because of their statelessness they can hardly ever protest against such rampant exploitation of not just their bodies but also of their dignity. As is apparent from the preceding commentary stateless women become even more insecure because they can be displaced any time that the state or the majority community so desires. When displaced they are destabilized from their moorings and such destabilization is made an occasion for their sexual exploitation and women are ready prey for traffickers. Both trafficked men and women are marked as aliens in all the countries of South Asia but it is the women whose alienness translates into sexual vulnerability. By marking such women as sexually available their sexual exploitation is facilitated. Therefore statelessness and trafficking are related, if not two sides of the same phenomenon. No amount of legislation on any one of these can ameliorate the conundrum. Also one has to understand the specific gender dimension of the problem. To address the problem of statelessness one has to address the problem of trafficking and the gender dimensions of that problem. The rapid spread of AIDS makes it imperative for South Asian states to sit up and take note of this issue otherwise South Asia will soon be faced with the greatest eradicator of our generation.
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ACKNOWLEDGEMENTS This article was written for an AALCO-UNHCR study. Thanks are to Carol Batchelor for her suggestions.
NOTES
AND
REFERENCES
1. Gilbert King, Woman, Child For Sale: The New Slave Trade in the 21st Century (New York, Chamberlain Brothers, 2004) p. 19. 2. Bridget Anderson and Ben Rogaly, “Trafficking and Forced Labour in the UK” in Refugee Watch Nos. 24–26 (October 2005) p. 25. 3. Gilbert King, Woman, Child For Sale: The New Slave Trade in the 21st Century (New York, Chamberlain Brothers, 2004) p. 21. 4. Senator Brownback, Press Release, 24 September 2003 in ibid. 5. The author to portray the gendered nature of such declarations as the Universal Declaration of Human Rights, (added the italics). 6. For an in depth analysis of statelessness see Carol Batchelor, “Statelessness and the Problem of Resolving Nationality Status,” in International Journal of Refugee Law, Vol. 10 (1998) pp. 156–183. 7. Shillong Times, 8 August 2003. 8. Paula Banerjee, “Chin Refugees in Mizoram”, Refugee Watch, No. 13 (March 2001). 9. As reported in Refugees International Bulletin, 2004. 10. “Hundreds of Destitute Burmese Asylum-seekers Marooned on Guam”, South China Morning Post, 6 February 2001. Source: Europe Intelligence Wire. 11. H.V. Stanley, “Chin Refugees in India,” Refugee Watch, No. 13 (March 2001). 12. Interview with the author on 20 September, 1998, in Dhaka. 13. “Trafficked from Hell to Hadis,” Unpublished report by Images Asia (November 1999). 14. Soma Ghosal, “Stateless and Oppressed from Burma: Rohingya Women,” Refugee Watch, Nos. 10 11 (July, 2000) p. 15. 15. Nirmala Chandrahasan, “A Precarious Refuge: A Study of the Reception of Tamil Asylum Seekers in Europe, North America and India,” Harvard Human Rights Yearbook, Vol. 2 (1989) pp. 55–96. 16. B.S. Chimni, “The Legal Condition of Refugees in India,” Journal of Refugee Studies, Vol. 7, No. 4 (1994) p. 385. 17. Asha Hans, “Sri Lankan Tamil Refugees in India,” Refugee, Vol. 13, No. 3 (1993) p. 30. 18. C. Amalraj, “Sri Lanka: The One-eyed Hope,” The New Leader (1–15 June 1995) p. 19. 19. About 23 female suicide bombers died by March 1998. Source: Yerimalai Report.
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20. Joke Schrijvers, ‘Constructing Womanhood, Tamilness and The Refugee,” in Selvy Thiruchandran ed., Woman, Narration and Nation: Collective Images and Multiple Identities (New Delhi: 1999) p. 179. 21. “The Maid Running Madness,” South Asia Refugee Information, Vol. 3 (September, 1996) p. 1. Also see “A Journey without End: Sri Lankan Tamil Refugees in India,” Refugee Watch, No. 2 (April, 1998) pp. 9–11. 22. “Refugee—The Human Cargo,” South Asia Refugee Information, Vol. 5 (December, 1997) pp. 5–6. 23. Nisha Varia, “Refugee Women Need Bias Free Assistance,” Women’s e-News, Run Date 10/01/03, 24. Etienne Balibar, Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, translated by James Swenson (New York: 1994) pp. 57–58. 25. Valentine M. Moghadam, “Gender, National Identity and Citizenship,” Hagar: International Social Science Review, Vol. 1, No. 1 (2000) p. 42. 26. Patricia Tuitt, “Rethinking the Refugee Concept,” in Frances Nicholson and Patrick Twomey eds, Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge and New York, Cambridge University Press, 1999) p. 107. 27. Meghna Guhathakurta and Suraiya Begum, “Bangladesh: Displaced and Dispossessed,” in Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das eds., Internal Displacement in South Asia (New Delhi, Sage Publications, 2005). 28. “Trafficking in Women”, Meghalaya Guardian, 13 September 2004. 29. “Anti-trafficking Consultation: An Eye-opener”, Imphal Free Press, 1 October 2005. 30. “Women’s Voice,” Published by National Network against Girl Trafficking/ NNAGT (undated) p. 1. 31. “Women’s Rights: Its Challenges and Sensitivity,” Published by National Network Against Girl Trafficking/ NNAGT (November 2002) p. 5. 32. Strengthening Cross Border Networks to Combat Trafficking of Women and Girls, Proceedings of Workshop organized by NNAGT and supported by UNIFEM, Kathmandu, July 2001 p. 42. 33. Amir Murtaza, ‘‘Agonizing and Brazen HR Abuse,” Proceedings of Workshop organized by NNAGT and supported by UNIFEM, Kathmandu, July 2001 p. 59. 34. Bridget Anderson and Ben Rogaly, “Trafficking and Forced Labour in the UK” in Refugee Watch Nos. 24–26 (October 2005) p. 28. 35. “Advani Warns Against Influx”, Assam Tribune, 12 December 2004. 36. The case is registered in the Basirhat police station on 13 January 2003, under section 376 (B)/280 of the Indian Penal Code. 37. Star Ananda, 18 March 2006. 38. Paula Banerjee, “Refugee Women and the Fundamental Inadequacies in Institutional Responses in South Asia”, in Joshva Raja ed., Refugees and their Right to Communicate: South Asian Perspectives,” (London, WACC, 2003) p. 139.
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39. Donna M.Hughes quoted in Gilbert King, Woman, Child for Sale: The New Slave Trade in the 21st Century (New York, Chamberlain Brothers, 2004) p. 172. 40. “UN Unit in Mizoram Debut to Fight AIDS”, The Telegraph, 6 December 2004. 41. “State has 80 AIDS Victims,” The Meghalaya Guardian, 2 December 2004. 42. “AIDS Infection Rate among Women Rising Alarmingly in Manipur,” The Assam Tribune, 4 December 2005. 43. Louise Brown, Sex Slaves: The Trafficking of Women in Asia (London, Virago, 2000) p. 185.
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SECTION V
Justice: Marginal Positions and Alternative Notions
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Manish K. Jha
Introduction
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ituations of marginality have been important grounds for the production of ideas of justice. When a group is denied means of representation and resources such as education, health, etc. marginalisation of such groups ensues, that might threaten their survival. At times it might lead to new thought on justice produced by communities who are marginalised. One of the implications of this is that while the issue of justice is studied mostly in terms of governance, its delivery mechanisms, and the various governmental forms of justice, social justice as distinct category can even be seen as the other of governmental justice and can be studied in the context of communities mobilisations, at times against the government. Such a study has to concentrate on the forms of social justice that emerges, the impact of public interest litigation as an avenue of ensuring social justice and as a process contributing to the idea of social justice, the “justiciability” of social justice, and the significance of the particular relation between rights, capabilities, claims, and law in terms of the idea of social justice—equally significantly, in terms of making this idea a reality. Finally, the significance of this has to be sought in the realisation of the notion of responsibility—responsibility of the State, its various organs, various governmental institutions, and their national and international commitments—to provide justice. Marginality is an important concept in understanding and examining the disparities, both economic and social among and between communities and groups. It is essential to study the conditions of these marginal groups. A deeper understanding of the complex social fabric of their existence and exclusion is required to explore alternatives at providing them respite and assistance, so that they may rise above their marginal position. It is often argued that collective responsibility has to be accepted for the sufferings caused to the marginal populations whether intended or unintended. Denial of justice over a prolonged period of time has often led to the instance of vigilante justice. But
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these instances have been sporadic and have not gone to the extent of empowering these marginalised sections of society to make them at par with the ‘mainstream’. The dalits, the tribals, women, and religious and sexual minorities have all developed their own language of Justice. These languages in themselves do not constitute a monolithic bloc, but often are disparate and contrasting. Sometimes from being archaic and regressive to being brash and overt, these languages nevertheless are important tools for anyone who wishes to understand what justice or injustice means to these groups. The selection of the articles in this section reflects on how the marginal situations produce their own concept of justice. The first article is a report on some of the meetings that took place in various parts of Uttar Pradesh which was aimed at setting up an agenda by the dalits to make their voices heard by the policy makers. The second article is a section of the report prepared by the National AIDS Control Policy (NACP) that undertakes a comprehensive social assessment through the documents, the prevalence and risk of HIV/AIDS among tribal people and seeks to ensure appropriate programme design and implementation to reduce the spread of HIV/AIDS and improve its management. The third is a short article, which analyses two grand caste congregations organised in Pune recently. Though the aims of the two seemed different, they were actually exercises in caste identity assertion. Hence, the article shows how caste is still deeply entrenched in the psyche of the common Indians. The fourth, talks of affirmative action, which moves beyond caste. The author proposes reservation of seats in educational institutions on the basis of schooling, gender and family income. He suggests a model called MIRAA—Multiple Index Related Affirmative Action. As the name suggests, this model is meant to take into account several factors when a candidate is considered for admission or employment. That is the affirmative way to ensure social justice. The last article is the introduction of a report from Bihar which traces the CPI (ML) led peasant struggle in Bihar from the 1950’s to the 1980’s, and shows how small peasants are fighting against big landlords, where landlordism enjoys a wider base, encompassing the erstwhile powerful raiyats. The various agrarian issues that have come to the fore in these districts are such that affect the rural poor all over India,
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namely, minimum wages, tenancy rights, occupation of commons, benami, communal and government lands, prevention of distress sale of crops, easy availability of various inputs at cheaper rates representative of the changing pattern of Indian agriculture.
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18 Voices from Folk School of Dalit Bahujan and Marginalised to Policy Makers∗ PEOPLE’S VIGILANCE COMMITTEE ON HUMAN RIGHTS
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he sessions are held regularly by the PVCHR, targeting the Dalit Bahujans and other marginalized communities like the weavers. This is much better a platform for the ordinary people to articulate their concerns and problems than the often highly politicized and personified national and regional networks currently existing in India. The language used in these reports may not be refined, but the content is rich with personal experiences and concerns of the ordinary people and matters affecting their lives. The Folk School of Dalit Bahujans and marginalized will take as its model the Folk School System, an informal schooling concept, which first began in Denmark in 1844 through the efforts of the poet and educator Nikolai F.S. Grundtvig and to this day continues to operate throughout several northern European countries. The Folk School stand in stark contrast to regular regimented academic education systems in which the institutionalized and often government-controlled school system makes unilateral decisions concerning its curriculum and the manner in which an education is delivered. In its place, the curriculum of a Folk School is decided through multilateral interactions
∗ This is a report by People’s Vigilance Committee on Human Rights ( PVCHR) presented in 2007.
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between the school, its instructors and the students, and includes informal discussions, presentations, workshops and field trips. Asian Human Rights Commission (AHRC) and People’s Vigilance Committee on Human Rights (PVCHR) organized first folk school of India on 18–19 January 2007 at Belwa village of Varanasi, India with the help of Local committee of Voice of People (VOP) and EU–FNSt–PW National project on Prevention on torture under the direction of Mr Basil Fernando of AHRC. We are going to spread the folk-school approach towards the promotion of human rights and democracy. Dr Lenin Convenor, People’s Vigilance Committee on Human Rights (PVCHR) Shruti Coordinator—PVCHR folk school initiative
MUSHARS FOLK SCHOOL
IN
BELWA VILLAGE
Essentially, the folk school approach is to improve equality in a society by improving the speech capacity of the poorer and the weaker section of the society. Improving their capacity to talk back and thereby creating a two-way discourse in the society is the way the concerns of the weak are brought to social discourse. The more silent the poor and the weak are, the less they will get from society. Matters of justice depend very much on the capacity of concerned people to use censor themselves and to speak out constantly. Normally there are many unwritten rules through which people censor themselves. For example, some topics may be considered taboo in some societies or sub sections of societies. For example, as an effect of feudal culture it is often observed that families of hunger victims hesitate and have subjective reservation to express themselves in respect of their acute poverty and hunger situations to which they have been going through. For example it maybe an unwritten rule that some “lower class people” do not talk back to “higher class people”. It may also be that some unwritten rules of censorship are enforced by punishments. For example some groups of people, if they talk about themselves and the wrongs that they bear will be punished either physically or by other
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means. In all these instances the capacity to use censor is an essential component of seeking justice. When a small group of people begins to use censor themselves others watch and soon begin to uncensor themselves as well. In this manner taboos invariably dissolve. The initial stages of uncensoring require: 1. Location from which you can break the rules of censorship while assuring protection for yourself. 2. The will to break such rules of censorship. 3. Creating an audience for you, which may at the beginning, is small. 4. Keeping at it day in and day out until taboos slowly begin to dissolve. Accumulate information and protect documentation. This is a very important area of trying to create a discourse on justice and human rights issues related to caste discrimination. ALRC, a sister concern of Asian Human Rights Commission (AHRC) and People’s Vigilance Committee on Human Rights (PVCHR) organised a folk school for Mushars at Belwa village of Varanasi, India for three months. In Belwa village Mushars ghetto, till now only 8 malnourished children are identified and they have lost their lives against death. Till now they didn’t see anything in their life and fall in the hand of the death. Mushars always kept away from the Government scheme because with the help of Government scheme their economic standard will improve and they will become self-independent and get release from the slavery of feudal landlord. Under the planned politics they are kept untouchable for many years and called as dalits of the village. Thousand of years Belwa Mushars are practising the slavery system they will take some time to get rid of it. Now this family engages with the elegance in folk school education. They are daily wages worker from 12 to 1 pm, they come home to take lunch they directly come to folk school. Those who did not find work get ready earlier and sit on the platform.
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Women’s also leave their work of making plate with leaves, women’s take 1 hour more to learn and they are learning faster. Imitating elder children also start going to PVCHR School, according to their own knowledge they are guiding their parent. Folk school start every day with pledge, every person repeats pledge. Every person of folk school sign on the pledge. Their teacher is Sri Virendra Singh, Sri Lotu Prasad and Sri Subedar Prasad. On 8/8/07 NDTV do a recording of folk school to broadcast. In folk school conversation asked that in this age you people are getting education how you are feeling about it? Then Kismatti Mushar said that since my childhood I did not get the chance to go to school, now we get the chance to learn and know about our law, right, we can also educate our child and not be further depend on anybody for any information. If any paper come from Government is not of our use then we will return it. Gaharu Mushar said that in my childhood once time I went to school, one same day I hit a Singh boy on his head and from that date I never went to school, there is also a feeling of casteism, but now I get the chance and to be self-independent. I want that now our life should be away from the danger of leave plucking, this work is very dangerous. Now I am bored with this work if we find any new work we are ready to do it. Raj Kumar Mushar said that we are facing caste discrimination, now we are reading then we will know about our right. Now I can read and write. On every Sunday they will gather and get knowledge about laws like Bonded Labour, SC and ST, Child Marriage, women’s right, Sexual harassment, so they can use this act for their own protection, in between they informed about dalit revolutionary like–Baba Bhim Rao Ambedkar, Jyoti Ba Phule, Savitri Ba Phule, Kabir, Raidas, Gautam Buddha etc. These pretend to seem that Mushars are very much optimistic about their study and want to know about every laws and rights. Now they start thinking about their future generation. First time all male and female of Mushars ghetto look in full confidence.
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FOLK SCHOOL OF THE VICTIMS AND MARGINALIZED BAJARDEEHA, VARANASI (UP)
SATURDAY, 18 AUGUST, 2007 Participants: Over 40 people participated, who were living in weaving industry in Bajardeeha. All participants were on the leave from the work to attend the folk school. The purpose of the folk school is to share and uncensor the victims in front of each others and then tries to find out the common solution and strategy. Discussion Mohd. Salim Ansari: I have worked for many years in weaving industry. Today we have difficulties for finding job. Weaver Identity Card is prepared for last two years after long struggle. Till now there is no use of it. We didn’t get any government facilities and no any relevant department officer comes to know about worse condition. I started my own business, but this work is new and I don’t have experience about it. That’s why my economic conditions are not improving. The Pulse Polio Campaigner asks me to make bill of more amount than the cost when I denied they scold that they will see me later. Bajardeeha have no any Government facilities like Water, Road, Electricity, Cleanliness, even the Pavement is not in their Lane. More than two lakhs people are living in Bajardeeha, but no any Aaganwadi Kendra, Primary school, and health centre are not here. For medical treatment we have to go 4–5 K.M. away Kamachha Jan Seva Hospital. For drinking water there is no Hand Pump. Government is conscious about Pulse Polio immunization but not for others like Malaria, TB, Measles, Hepatitis B, Diarrhea. On 5 August, D.M. of Varanasi had to attend meeting on Pulse Polio with Coordinator and Staff of UNICEF and CMO of Varanasi. As announcer told to the people that due to sickness she is unable to come, but the reality is due to flood on roads and over flow of sewer she denied to attend the programme.
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More than 75 per cent people are starving and only 25 per cent people are getting food due to irregularity in public distribution system. Government should provide loan to start their old work and community should organize. Badaurn Nisha: She is former Corporator; she said that in Bajardeeha 75 per cent people are living in starved condition. For delivery, mother has to go Kamaccha Government hospital which is more than 5 Kilometres away. Children of Weavers are dying due to diarrhea but distribution of ORS is not going. Sewer system does not work here everywhere in the area stagnant and dirty water can be seen over flowing. The dump of rag is spread around the area, which is not hygienic and not safe for their resident. Today 18 sweepers engaged, they are appointed on daily wages. Akhtar Ali: I am also engaged in weaving, it is my family profession. Government invite developed country for business to invest here, but he did not see the starving, naked and economically boneless Weaver of Bajardeeha (Varanasi). Government has to apply Dr. Darin’s plan “Varanasi Weavers trust”. If Government is not realizing and recognizing our problems then Government have to investigate the reality and then he start his initiatives. Bunker Identity Card is prepared at Rathyatra under Mahatma Gandhi plan with insurance in payment of Rs 80/-, for identity card they have to pay extra Rs 20 to 50/- to get rid of daily problem facing they pay more money. A Weaver meeting held in Bajardeeha by Bunkar Seva Kendra employee told that 80 Lakhs rupees allot for Bajardeeha Weavers. In this plan every Weaver will get work of Rs 100/- daily. We visit Bunkar Seva Kendra for getting ideas of work of coloring, graphics, and weaving of sample saris. Bunkar Seva Kendra open from Monday to Friday and timing is 9 am to 7 pm. When we went there for order employee told that they will only give order to owner of more than 50 Looms Holder. Scheme for small Weaver will come in the month of August. At present time they gave sari to Retailer, he pay amount paid after 10 to 15 days. The condition of the Weaver has become worst because of bargaining of middle man. The amount paid by them is less than the cost of the Silk Sari. Government should make project at grass root level, so that Weaver get rid of middle man. Proper market should be established. After 60 years of Independence till now we don’t have any cloths policy.
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Nizammud-Din: I am working as Weaver last 17 years. Preparation of Bunkar Identity Card starts in 2003, till now I did not get any Identity Card. When I went to Rathyatra office, officer asked me to come in group of 20–25 people, and then you will get your Identity Card. The sari Retailer buys sari in cheap rate and sells it on high rate to the Consumer. Due to this way of selling sari, we are unable to survive life with family. If market is available, then we will get right price of our product as labour. Zaheer Anwar: I have worked for 24 years. But in present time my income is not as much as the cost involved in sari. At present, I am working as a building labour and manage our family. Like me the number of poor family in Bajardeeha is more than 1000. No Schemes run in a Weaver’s Cluster, Colonies on a need based assessment. Officers come and only count their problem. Need of establishing market place, sales and outlet of Handloom. So they can improve their living standard and educate their children. Abdul Kalam: Government should implement policy for Weavers. Till now I didn’t get Weaver Identity Card. Market should be open in Weaver’s Cluster, Colonies on a need based assessment. Firdaush Ahmed: The Schemes should be made simple to follow, which even an illiterate Weaver could understand. The Schemes should not be only under cooperative but Weavers working with master Weavers could also be covered to ensure that the 85 per cent of Weavers outside the cooperative also benefit. Weavers should unite and fight for their own right. Suleman bhai: I am Sector Warden and faced discrimination in Below Poverty Line (B.P.L.) Card. Dr. Aktar Ali (Post Warden) prepares Red and White Card. And Yellow Card prepared by me. For Red Card he bribe Rs 500/- per card from rich people. Only four people get B.P.L. Card. In Bajardeeha 80 per cent Muslim and 20 per cent Hindu Community lives together. But the big community has less than 1 per cent of B.P.L. Card and small community has more than 4 per cent of relative Card. The Government oil distribution shop is 3 K.M. far from Bajardeeha. It is situated in Sankuldhara Area. The Distribution of oil is only 3 hour in a day and five day in a month (between 10–15 day of month). And rest day shop is closed, because the Kotedar do different work for livelihood like he give money on interest, it is illegal work in our country. Antrodaya Ration Shop is situated in Kakarmatta, which is 3 K.M. far from Bajardeeha.
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We are ignored by the Government Policy. Those who pay Rs 500/to government employee who get benefit of toilet facility. But toilet scheme has no cost for it. We pay Tax for Water, Electricity, Sewer and House but didn’t get any Governmental benefit for it. The Sewer Taxis Rs 326/- per year. But no facility of sewer system in Bajardeeha and how could pay this type of cost and Tax in worse condition. Silk is import by China at the cost of Rs 800/- per Kilogram. In India the cost of this Silk is about Rs 1400/- per Kilogram because of Rs 600/- anti dumping tax on it. Sabbir Ali Ansari: In 1970 Khaprailla market is known as Weaver’s Colony. Which was closed in 1983 by the ‘Addleman (Bargainer).In this market the businessman came from Delhi, Kolkata, Mumbai, and some nearest areas and purchased their items. Owner of this place got Rs 21/- per Sari. Weavers got receipts from the buyer, which indicate his Name. Amount of rate, no. of Sari. Amount is payable within an hour. Gradually market starts falling because the markets transfer to Shishmahal which is a big market of silk sari. Where Weavers exploited from middleman. They purchased sari in low price and sold it on high rate. The second reason of falling market is that a lot of Silk Sari spoiled in foreign market and duplicate items came in market. The Silk Yarn is cheap in Bangladesh. So, the cost of Sari is cheaper than here. In India the large consumer of silk sari in Kolkata, So, most businessman purchases sari from Bangladesh. Conclusion 1. Implementation of Dr. Darin plan “Varanasi Weaver’s Trust”. 2. To implement Government Welfare Policy for Weaver and in their Colonies. 3. To decrease the price of silk yarn. 4. Preparation of B.P.L. Card and open regularly this type of shop. 5. To provide basic facility like Road, Electricity, Water and sewer system. 6. To provide essential needs like Hospital, School and Aaganwari Kendra. 7. To fix “Handloom Mark” on the product, this is made in Handloom, and save Handloom Weavers from the Power loom owners. 8. To provide regular market for handloom made product.
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FOLK SCHOOL FOR VICTIM AND MARGINALIZED IN AYER, VARANASI THURSDAY
AND
FRIDAY, 13
TO
14 SEPTEMBER, 2007
Venue: Eklavya education centre, Ayer (Mushar ghetto), Varanasi Participants: Over 41 people participated, who were living in Ayer (Mushar ghetto). All participants were on leave. Objective The Objective of Folk school is to share and uncensored the victims of police torture, caste conflict and village head to do things with his own wishes etc in front of each other and tries to find out the common solution and strategy. Discussion Chandra Devi: Chandra Devi is about 55 years old lady. Her whole family is suffering from police torture. She said her younger third son Umesh is naughty and 15 years back he ran away from his house. We have no information about him that where he is, what he is doing. Police come daily and torture us and take any male from our family to police station. My second son Paharu was bathing then police came and take Paharu with himself. Police gave him drug material and clear that he is smuggling drugs and kept him 8 days in jail. It was not under his right; Police can only keep for 24 hours in jail. He works in brick making factory. Second times in Gyanpur police gave 12–canvas bag and took him to illegal factory. Police involve him in fake case; Paharu was sent to Mirzapur jail. Till now Chandra Devi family didn’t know that his son Paharu is involved in fake case. Chandra Devi went to Cholapur police station to know about his son. Policeman said I am not in charge of this police station but my duty is in another police station, she said policeman was saying wrong. Chandra Devi said to policeman that you people have disappeared my son, policeman was silent. She wrote
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missing report in police station. After hard labour and spending 13,000 Rupees she fined her second son Paharu. Now this family is not finding work in brick making factory and result of this is that Chandra Devi family is suffering from starvation. Then also policeman is threatening them. Villager threats Chandra Devi family in the name of police, Kotedar sells their ration of Chandra Devi and don’t give ration to them. Chandra Devi family is living their life under the threat of terror and hunger. Once collector sahib came to our village and calls me. He said that how son you have born. She replies that when I was pregnant that I don’t know my child will be like this. They become like that after coming on land. Listening this entire collector sahib was silent. At last collector sahib gave 49 Rupees and said inform police after finding Umesh. Then Chandra Devi said that from 15 years I have no information about him than how can I find him in just only 40 Rupees. She said that mine caste makes bricks, we make mahal of others but we have no proper mud to live in. Then also these old women alone went to police station, court and set her son free without anybody’s assistance. Because leader and policeman ask money in return of assistance. How can we live in this land when society and policeman have jealousy with us? Sudama Devi: She cried after describing 15 years back incidence. His relative did wickedness, policeman daily come and threat Sudama Devi family. After six month Police came and arrest her husband for eight days. As he was the only earning person in the family? In between Sudama Devi son fall sick, she took debt for her son treatment after working in brick making factory she pay the debt. For 8 days she daily went to police station and she have to prove that her husband is not thief. In evening policeman said to victim, “go home” then victim said after arresting innocent person you are saying, “go home or outside”. Gita Patel: After remembering her childhood days she said that in 1985 her three-generation threat in fake case in court. Every day police abuse to women because men live outside in fear of policeman. Her family set free from village panchayat. Asha: She said that villagers have conspiracy with our community people, they want to make road in my land. Road go from elite people land. They want to build road in my land and plough on Government land.
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Somaru Prasad: he said, “No conflict is possible without courage”. Five years back the son of Singh fire holika of chamar ghetto one day before. When we Protest then Singh children beat us. After knowing this incident, angry Chamar ghetto people went and ask reason why their son beat our people. Justice talk was done with police officer and Singh. Singh people accept their mistake. Dharma Devi: Aura road is always full of water. In the gallery of village drainage is dig and which was left in between Condition is these children came outside from house and bath in the drainage water. Villagers talk to village head that they want to get rid of this problem. Then village head said that till now no budget came for the construction of drainage. Due to less budget construction of drainage stopped in between. SHG scheme is running in Ayer and the responsibility of sister Manju is to keep the record but she lost the register of SHG. So Income and expenditure of 4 and 5 month is not getting clear. Toilet facility is also not provided. Kalawati: Few years ago at 6 am people from Kurmi caste and fired Mushar ghetto. The result of this fire was the entire utensil, bed sheet, and ration was burned in fire, only clothes which were worn by us was safe. Till now we are not unable to make home or nor they get from Indira Awas yojana. The result of this incidence is when these Mushar people went to take dry wood to cook food then some young generation people from Kurmi came and start fighting with us. In fight one Kurmi Bachanu died, we have no intention killed him. Next day before 6 am Mushar people were sitting in front of fire than Kurmi people came and informed that Kurmi Bachanu died. All Mushar people ran to police station getting chance Kurmi people lit fire in Mushar ghetto. The results of this fire was 19 house were burn in this fire and with the assistance of fire brigade the fire was off. 6,000 Rupees were announced to be paid as compensation, till now they didn’t get single Rupee. No allotment of home under the scheme of Indira Awas Yojana. She don’t have below poverty line card, only two or three person have below poverty line card. She has only one son and he died some years back. She grievance to village head that there is no facility of drinking water, widow and old age pension is not provided to needy person. She works in brick making factory, when she makes 1,000 bricks than after labour she get 120 to 140 Rupees in three days.
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Other wise she gets 20 Rupees by making hundred of plates from leaves. Her livelihood is maintained by selling this plate in Varanasi by expensing fair. The cost of per kg leaves is 2 to 3 Rupees. Now she fined less leaves to make plate. She gets complete food (rice, roti, dal and vegetable) in a week. After lunch Sushila, Urmila, and Radhika sing group song—“to keep our village in front, and decorate with the development”. Again discussion start Daya Bhai: is grass root activist in police torture. He gave information how to prevent from police protection. He told when police came to arrest that you ask, in which case are you arresting etc., you should also point at what time police man came, date, were they in uniform or not, vehicle no, give this information to any organization. So, that query should be done from police station. Immediately do telegram to DM and S.P after arresting. Dr. Lenin: inform villager that only ladies police can arrest ladies. No police can arrest women’s in night. He asked how many people know that police have no right to beat, then three women said that they know. Gradually we people start knowing all these thing and policeman have no courage to beat us. Some women said that police always beat lenient person. Then Dr. Lenin explain that police have no right to beat lenient person and policeman cannot keep in his custody more than 24 hours. After 24 hours he should be called in front of District Judge. Police beat and take statement. Under article 162, but this is not the perfect evidence and court will not take it as evidence. Under article 164, confessing in front of court is the main evidence. After Dr. Lenin explanation slogan was given “one for all and all for one”. The curriculum of First day folk school finished and again tomorrow at 11 am again all people will gather in Eklavya education centre. Tomorrow at 11 am all people get together at Eklavya education centre Ayer (Mushar ghetto), again after introduction and Rajendra sing song and all people follow his song, discussion on folk school start. Shruti: She told villager about the importance of birth registration, and give Example- Confounded in Birth registration of a boy Kaju of Bagwanala and he was minor in age but in jail he was kept with adult. Birth Register is very necessary. So, this is first Government process of a person.
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Manju Yadav: I am widow, but village head is not consciousness about us. I have above Poverty line (APL) card and on the card I get only kerosene oil. I am not getting family benefit scheme due to enmity behaviour of village head. I went many times to village head and now I am very tired. Kamala Devi: When my husband died 4 years earlier, due to AIDS. Village head ask two rupees and photo, didn’t tell why he was asking for these things. Village head gave family benefit scheme to 4 to 5 people and departing us from this facility. I belong to lower caste (Rajbhar); went for caste identification certificate of my daughter. But village head not prove it and now I don’t go to village head for any work. I have above poverty line card and my son is ill. Village head allot land of village panchayat and house to land owner. We landless have not allotted barren land. Village head not listen our problem and he ignores us. In between the discussion types of doctors and tell difference between wallet and learned doctors. Discussion on the function and the facility provided in government hospital. Villagers get information about AIDS. Detail work function of Aanganwadi and Asha worker was told to the villager. Urmila: in Haruha health centre a delivery of a mother was done, doctor gave only 900 Rupees out of 1400 Rupees given by the Government during the time of delivery. When she ask about Rupees then doctor said that 500 Rupees was spend in the medicine that were used during the time of delivery: She also describes the work performance of two Aanganwadi centre running in there area. They give coarse meal, halua of sattu and guava of cheaper rate to eat. When villager ask Aanganwadi worker they said only dose of 20 children come, villagers start crying then they give dose to 31 children. They only give 40 gram to children and 80 gram to women’s, the dose came is just doubled what they give. When villager uproar then Aanganwadi worker start doing properly. Aanganwadi worker said when supervisor take 1500 Rupees to 2000 Rupees, CDPO madam take 5,000 Rupees. How they will manage in 8,000 Rupees. Gita: Post office of Shivrampur is in thakur ghetto; postmaster of this post office is thakur. My money order came from Delhi and he irregular distribute it. When I with my daughter went to post office then post-master behaviour was not good with us, he threaten that his
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son will beat you people. Postmaster spends the money for his own purpose and gave after 4 or 5 days, after giving money order Rupees postmaster ask commission. She said that if post office from Shivrampur thakur ghetto came to ayar, because people from general cast threat dalits people and postmaster should be also change. When I went to post office to take money order then we are wretched by them, call me “Devi of Delhi”. After discussion we hear the story of Sabbri from people of mushar ghetto. As, they worship Sabbri. Some people said that still we are not allowed to enter in ahirowli temple due to caste system. Like this many example are in this area. Upper caste people or people who belonged to developed class do not want that our child should educate. If we will educate than we will know their rights. An upper class person wants to keep the difference of caste system.
INDIA: HOW EKLAVYA GETS THE EDUCATION FROM THE MODERN DHORNACHARYA INDIA: UNTOUCHABILITY,CASTE BASED DISCRIMINATION, CORPORAL PUNISHMENT AND SLAVERY, THREAT AND INTIMATION OF HUMAN RIGHTS DEFENDERS, CORRUPT POLICING AND GOVERNMENT NEGLECT Dear friends, International Commission on Dalit Rights (ICDR) have received information from our local partner, the Peoples’ Vigilance Committee for Human Rights (PVCHR) and Savitri Bali Phule Women’s Forum(SWF), about untouchability—effectively slavery—being practised by Government Primary School in Varanasi District, Uttar Pradesh state, India. Suresh Mushar son of Sajjan Musahar who is resident of Ayer Musahar Ghetto, Police Station: Cholapur, block: Harahuwa, Varanasi is eight years old and student of class two. He is student of Government primary school at Shivrampur. On 2 August 2007 in the lunch-period he went to home for taking his diet, which is ten to fifteen step from his school, because mid day meal in the school is not started. When he came back to school he had not
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seen his bag he asked to the teacher name was Ms. Sangeeta Gupta about his bag, But nobody could not tell him about his bag. Suresh was very bother about his bag till two days which has returned by madam Sangeeta on 4th august 07 from the almirah and said that Mushars-Chamar want to become judge and collector what you people will do with you schooling. After that she has beaten to Suresh very badly. Hence Suresh’s mother immediately reaches to school and get rid of her child from the teacher, because the wall of Primary school and musahar ghetto are very near to each other. The Human Right activist Mr. Vijay Bharati associated with People’s Vigilance Committee on Human Rights (PVCHR) has got the information about this incident and he has organized a meeting of parents and children in Musahars ghetto to know about the behavior of teacher towards Musahar Children. Children informed to him that madam has beaten us so many times due to committed little bit mistake. Moreover she told that you even she scold Children that you Mushars and Chamar people keep distance with me and you people are not allow to stand on my head. After listening all this words from their children, Mushars parents decide that why teachers have been beating our children without any reason and we should do something against them because it have bad effect on children. They are not doing well with us because our first generation is getting education, Suresh’s father complained about this incidence to DM on 9th of August 07 by the register post. Suddenly on 10:30 A.M. of 10 August 2007 Basic Siksha Adhikari (BSA) came to Shivrampur for the routine visit to school. Human right activist Mr. Brijesh Pandey of PVCHR got the information about it. Then he understood probably, BSA came here to know that why the teacher beats the children’s and how school is going on. Mushars asked to the BSA that if the primary education is free for us then why they are taking ten-rupee enrolment fee from every children and she did not gave any receipt of it. If the parent’s want to take information about it, then in the sense of reply, she told them that whatever would be the cost of scholar application form it would not taken from you people but you leave this money to me for that purpose. Brijesh told that Madam Sangeeta Gupta have feeling of untouchability with Dalits and Mushars Children and call them by caste name. Sajjan Mushar inform BSA about the entire incident than BSA asked Brijesh about his introduction and caste he said that I am a Human
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Right Activist and by I am Brahmin and I don’t believe in caste system. BSA ask Brijesh you have taken responsibility of them and how many people are engage with you, then Brijesh introduced people who belong to Chamar community. Then principle said to BSA that these people are creating problem to us and always insist Mushars for their right. After that BSA said to Brijesh and other people go away from here other wise I will send you in jail in case of breaking gate and doing violence, then you will forget about your Human Right after that BSA went to visit another primary school of same village. Meantime Brijesh and Sijjan Mushar follow BSA to another school of same village. After seeing both of them BSA lose his temper and scold him that if you do not accept caste discrimination, then you will have to drink water from Mushars hand, then Brijesh told him that you are saying only drink to water but I can also eat food with them in same plate. Then BSA asks Sajjan Mushar to give Brijesh water and sugar, and let see he drinks or not. Brijesh ate sugar and drank water. BSA and other people who were present at that time laugh at him. BSA said that by birth you are Brahmin but you have destroyed your religion in the name of Human Right. BSA scolds Sajan Mushar and asked his name then Sajjan informed him about the entire incident how badly Madam has bitten his son Suresh, then BSA listen him and said if Children will not be bitten by teacher then how they will learn to read and write more ever if they will not live in discipline they will try to escape from school. Now the question arise that in district BSA is responsible for the education of primary school if they support caste system instead of providing free education and yet taking registration fee. Then also BSA, support teachers and he is satisfied with their work. Then Vijay Bharti unite with the community people and talk to Principle in the reference of education, she said that people are giving money to us in the respect of Guru then we accept it if this is the reason then you should return money. This is very serious matter in Human Right Commission, Honorable Court, National Child Commission, where Primary education is free for every children without any caste or creed. The main aim of “Sarva Siksha Abhiyaan” (education for all) is that every child have full right of education therefore they can associate and get the fundamental right of education. If they are taking 10 rupees from every child as registration fee, yet it has been complained to BSA but he has not taken any action against them.
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In Constitution of India have security against the caste discrimination. Our Constitution formed 57 years ago but till now there is no implementation of Fundamental Right. The right mentions in constitution are for our welfare. We use those Right but implement it according to own desire. Apart from the Constitution section 21 and 21A, Dalit rights have been snatching continuously due to Caste Discrimination. For conservation of Dalit right; there is SC/ST Act, but this Act not implement properly. Shivrampur is Ambedkar Village where Mushar child Suresh was badly bitten and insulted by the teacher due to caste discrimination: In same campus there is statue of Baba Bhim Rao Ambedkar; which means statue is only for decoration but don’t his view. Ambedkar village or Lohia village are only a part of politics or try to follow their ideal view. BSA knows that Shivrampur is Ambedkar village then also there is caste discrimination. Sister Mayawati. Chief Minister of UP has to consider more in the reference of Ambedkar village and give direction to Officer in this reference. Article 5 of Universal Human right declaration, the article 3, 6, 28 and 37 of United Nation Child right convention is against it. Honourable Supreme Court clearly explain in bonded Muktti Morcha vs Government of India (1997,105CC 549) that child should be the main centre of any development plan and Honourable Supreme Court in case of Menka Gandhi vs. Government of India (AIR 198, SC-597) declares that life should be free from fear and danger. In case of Parent form for mean education vs. Government of India Delhi High Court (AIR 2001 DELHI-221) clearly explain that during education child should not be scold or bitten by teacher it is unlawful. Conclusion after many research education of the child should be in fearless environment otherwise the child will be mentally retarded and always be fearful. Suggested Action Please send a letter to the relevant authorities, to the District Magistrate Varanasi in particular, and others listed below, urging them to take immediate action to arrest the alleged perpetrators and provide protection to the victims. Please ensure that strong disciplinary/criminal
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action is taken against responsible officials who have failed in their duty to take action and investigate the case. Please write to follows: 1. Ms. Veera Kumari District Magistrate Varanasi. Uttar Pradesh INDIA Fax: 915422501450 2. The National Commission for Scheduled Castes and Scheduled Tribes Government of India 5th Floor, Loknayak Bhawan Khan Market New Delhi -110003 INDIA Tel: + 91 11 2462 0435 Fax: + 91 11 2462 5378 3. Ms. Mayawati Chief Minister Chief Minister’s Secretariat Lucknow Uttar Pradesh INDIA Fax: +91-522-2230002/2239234 E-mail:
[email protected] 4. Justice A.P. Mishra Chairperson Uttar Pradesh Human Rights Commission 6-A Kalidass Marg Lucknow, Uttar Pradesh INDIA Tel: +9152 2272 6742 Fax: +9152 2272 6743 5. Shri Justice A. S. Anand Chairperson National Human Rights Commission of India Faridkot House, Copernicus Marg New Delhi-110001 INDIA Tel: +91 11 23074448 Fax: +91 11 2334 0016 E-mail:
[email protected] 6. Ms. Hina Jilani Special Representative of the Secretary General for human rights defenders Aft: Ben Majekodunmi Room 1-040 C/o OHCHR-UNOG 1211 Geneva 10, SWITZERLAND Tel: +4122 917 93 88 Fax: +4122 917 9006 7. Mr. Ambeyi Ligabo Special Rapporteur on the right to freedom of opinion and expression
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Aft: Ms. Julie De Riviero Room: 3-042 C/o OHCHR-UNGG 1211 Geneva 10, SWITZERLAND Tel: +41 22 9`17 9117 Fax: +41 22 917 9006 (general) 8. M. Doudou Diene Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance Room 4-041 Office of the United Nations High Commissioner for Human Rights Pa!ais’JVilson Rue des Paquis 52, Geneva SWITZERLAND Tel: +41 22 9179271 Fax: +41 22 91905C With warm regards, Shruti Nagvanshi Member, Core team PVCMR Mobile: +91-9935599330 www.dalitwomen.blogspot.com www.pvchr.blogspot.com
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19 Social Assessment of HIV/AIDS among Tribal People in India∗ NACP III PLANNING TEAM
EXECUTIVE SUMMARY 1. Background The National AIDS Control Programme (NACP) Phase III aims to go beyond the high risk behaviour groups covered by Targeted Interventions. This would entail extension of interventions to populations that are vulnerable to HIV such as the tribal people and socially disadvantaged sections of the population in both rural and urban areas. A rural risk/vulnerability assessment has already been carried out, and the present assessment has focused and limited itself to the study of tribal people only. 2. Objectives of the Social Assessment The SA among tribal people has the following objectives: z
z
To undertake a comprehensive SA that documents the prevalence and risk of HIV/AIDS among tribal people. To understand their levels of knowledge, social and behavioural causes and consequences of HIV/AIDS (including stigma).
∗ This report was submitted by the NACP III Planning Team, Delhi.
Social Assessment of HIV/AIDS z
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To assess current strategies used for PDTC of HIV/AIDS in order to ensure appropriate programme design and implementation to reduce the spread of HIV/AIDS and improve its management. To provide information for pre-project stakeholder consultations and to design continuous stakeholder consultations in the programme.
3. Assessment Methodology SA was a qualitative research and the information was collected through: z z
z z z
Review of literature. Primary assessment among tribal people; and programme implementers and service providers. Relevant literature survey. Analysis of the various policy documents. Analysis of NACO Project documents and assessment reports available.
4. Basic Information about Tribal People The following are the salient findings regarding behavioural and other practices that are relevant to the programme planners: z
z
z
Low awareness and knowledge regarding STI/HIV/AIDS except in Manipur. Widely varying sexual practices (high level of pre-marital and extra marital sexual practices) and contact with external high risk population make them vulnerable. Specific communication strategy designed to suit the needs and culture of the target group in local dialects would be necessary. The choice of medium for communication would also be critical. Folk media, Inter-personal Communication and messages through influencer groups could be main choices.
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Non-availability and/or lack of access to health care facilities were one of the main factors discouraging health seeking. Trust in faith healers and non-qualified private practitioners and easy accessibility made them rely on these sources for seeking treatments for illnesses. Role of such providers in referral needs to be reckoned in programme design. Gender bias towards males for health care seeking needs to be addressed. Knowledge regarding STI and symptoms are low and misconceptions that exist exasperates this situation. High level of stigma associated with STI and HIV/AIDS is a challenge that needs to be addressed. Youth are emerging as a highly vulnerable group in these areas.
Implications of Basic Information Findings z
z
z
z
z
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The tribal people are at risk in terms of HIV and hence it is essential that interventions designed specifically to meet the requirements of the tribal people. Communication strategies and media selection needs to be done in accordance with the findings of the media habits as outlined in the study. The instance of high level of pre-marital and extra-marital sexual practices and sexual exploitation also makes them vulnerable and this aspect needs to be reckoned while designing interventions. The communication needs to address in the first stage increasing knowledge and awareness among the tribal people regarding the STI/HIV/AIDS as well as remove the myths and misconceptions existing in order to reduce stigma. The strategy of training and using faith healers and other private practitioners in whom the tribal have faith in to motivate the population for bringing about a better health seeking behaviour. The infrastructure of health facilities need to be improved and human resources trained and posted in this geographic area to increase access and use of these facilities.
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The capacity of the NGOs also needs to be built in this region to effectively implement interventions.
5. Policy Environment The following policies have been examined and analyzed for their implications on the Prevention-Diagnosis-Treatment and Care (PDTC) for the tribal people: z z z z z z z
National HIV/AIDS Prevention and Control Policy. National Health Policy 2002. National Population Policy 2002. National Rural Health Mission-Vision Document. National HIV/AIDS Bill. Manipur State Level Policy on HIV/AIDS. The National RCH and RNTCP Program Documents.
Overall Findings from the Review There are no specific policies that directly impinge or address the tribal issues but there is enough scope to derive from the various policies that there are areas that can be interpreted to be applicable to the Tribal people. This has been discussed in the interpretation section of each policy. However, it is concluded that specific issues addressing the requirements of tribal people needs to be developed separately drawing from the different policies that are already in place. This exercise needs to be carried out on a priority basis. 6. Institutional Issues z
A special function at the National and State level needs to be created and positioned to deal with issues relating to policies, coverage and implementation of interventions among the tribal people and other socially disadvantaged sections of the population who are vulnerable to HIV.
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The district level planning envisaged during NACP III needs to identify the vulnerable and socially disadvantaged people as well as the tribal people that need to be covered in the different districts of each state. The Governing Board and Executive Committee of each SACS can be expanded to include members from the Social Welfare Board and Tribal Development departments for better understanding of the requirements of the populations and appropriately plan for intervention and services in those areas. The convergence with RCH II especially in the areas of Tribal Plan, Urban Poor and the approaches to mainstreaming gender and equity can be attempted in order that the service availability and service provision can be linked. The policy and goals can be studied and the same be tied up within the state PIP for serving the tribal people and other marginalized and socially excluded population. Behavioural studies using an ethnographic approach need to be carried out in different tribal and rural belts to better understand the risk and vulnerability factors of the specific population in order to design programme and interventions for these populations. Capacity building of the NACO and SACS staff on the Social Development issues, gender, equity and Social Exclusion needs to be provided in order that the staff are sensitized and appreciate the necessity to include and mainstream such aspects into the programme. District level structures need to be created for planning the district level HIV/AIDS intervention with evidence for planning and capacity needs to be built on different aspects of programme planning and management.
7. Recommendations National Level-Policy Related 1. Multi-pronged approach may be adopted to reach out tribal people. 2. A policy decision regarding the necessity to intervene with this group needs to be taken.
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3. Convergence needed to bring about and derive advantages of the synergy between NRHM and the HIV/AIDS programme. 4. Create a function of social development, within NACO and SACS to address social development activities and to identify, assess and design interdisciplinary research priorities and actionable knowledge strategies within SACS and NACO. National Level-Programme related 5. Request the states to carry out a mapping exercise in order to identify tribal belts and to gather information on HIV/STI prevalence among tribal through the sentinel surveys. State Level 6. Convergence between NRHM and HIV/AIDS control programme should be brought about. 7. There is a need to have a communication strategy on stigma, discrimination, care and support more clearly. 8. There is a need to collaborate or co-ordinate with Department of Tourism as the tourists are involved in sexual activities with tribal women. District Level 9. The programme should address the gap of non-availability of disaggregated data on prevalence rates for different social groups. 10. There is need to initiate focused intervention for tribal group. Public-Private Partnership 11. Collaboration sought with corporate sector for their involvement in the prevention and education programme as well as in provision of services such as STI. 12. Advocacy for participation of development and private sector agencies and liaison with international and national agencies
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engaged in developing sustainable livelihoods and reducing vulnerability also need to be thought about. Tribal Action Plan India has the second largest concentration of tribal population in the World. Indian tribes constitute around 8.2 per cent of nation’s total population (Census 2001)1 and north eastern states are predominantly tribal-populated States (IDSP 2003).2 Poverty and poor infrastructural development in tribal dominant areas have been the main reasons contributing to the inability of health programmes in reaching out to tribal populations, which includes the National AIDS Control Programme. The available literature along with findings from the tribal assessment undertaken by ORG Centre for Social Research in 2006, provide specific evidence to establish the tribal population in India as being particularly vulnerable to HIV/AIDS and help in identifying specific needs of the tribal groups with regard to HIV/AIDS. The assessment reaffirmed that illiteracy, migration and poor access to media makes the tribal population socially vulnerable. With regard to HIV vulnerability, studies have reported that tribal women are particularly vulnerable to HIV/AIDS since they commence sexual activity at an early age. Sexual practices varied widely, sexual relationships out of wedlock were reported to be a very common phenomenon. Girls and boys staying together before marriage was a socially acceptable norm. Couples were also at liberty to divorce and remarry. Males were involved in premarital or extra marital sex. Condoms were generally not used, as these were disliked. Except in Manipur, by and large, the tribal communities were unaware of STIs and HIV/AIDS. Awareness was lower among women. In all (except Manipur) states the awareness regarding services for prevention, diagnosis, treatment and care for STIs and HIV/AIDS were low amongst tribal people. Treatment seeking behaviour for most health problems including STIs, revealed initial resort to home remedies or self medication by buying medicines over the counter from grocery or petty shops (in Manipur), followed by visits to the traditional healers. Other studies have also reported that due to stigma and
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shame associated with RTIs/STDs women suffering from RTI/STIs did not consult any physician unless the problem became very acute. Health facilities like the CHC/PHC were reported to be visited only when the problem became unbearable. Private health facilities were used, particularly when the location of public sector facilities was not convenient. Access to health care is yet a problem for tribal people (IDSP 2003) because of scattered settlements and difficult terrain, inadequate accountability and monitoring of health service delivery to tribal people, unhelpful attitudes of health service personnel, nonavailability of manpower at health facilities etc. (THDP 2003).3 No specific interventions had been started among tribals in the study areas by the government, private or public sector collaborators. In Andhra Pradesh, Rajasthan and Manipur, these populations were covered under the interventions designed for the high-risk (CSW and migrants) and other groups. Very few NGOs were reported to be working specifically with tribal people on HIV/AIDS. NGOs in some tribal areas of Manipur, Rajasthan and Andhra Pradesh were seen to cover tribal communities under their Targeted Initiatives (TI) programme. There was a dearth of IEC material communicating in local dialect of tribal people. Issues Covered under Proposed Tribal Action Plan 1. Integrate tribal and social development issues in the HIV/AIDS programme at every level 2. Systematize knowledge management on HIV/AIDS among tribal people for developing interventions among them 3. Increase accessibility of the range of services under the NACP to tribal people 4. Work with development partners and public and private sector enterprises to improve HIV/AIDS prevention and control among vulnerable and tribal people Framework Considered for the Plan In Tribal Action Plan, against each of the above issues, a set of actions have been suggested under the column of “Actions to be
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undertaken”; the organizations who are expected to be overall responsible for undertaking the suggested actions under the column of “agencies that can effectively undertake activities”; the steps involved in implementation of these activities under the column of “Implementation Process”; the suggested time of initiation of these activities under column “Time duration and the frequency of the activities to be undertaken”; the process and output indicators to assesss the extent of successful implementation of suggested actions under the column of “possible monitoring mechanisms/indicators” has been mentioned. In the following paras, an attempt has been made to summarize the suggestions made in the action plan. 1. Integrate Tribal and Social Development Issues in the HIV/AIDS Programme at Every Level: Integration of tribal and
social development in HIV/AIDS programme at every level would call for some actions to be taken in the initial period of NACP-III. The actions include (i) ensuring inclusion of socio-economic and cultural dimensions of tribal people in the existing NACO policies and programmes, (ii) integrating HIV/AIDS programmes with NRHM and Tribal Development Programmes at all the three levels, (iii) advocacy for sensitizing officials and functionaries of Health and Tribal departments on issues of HIV, social development with a special reference to vulnerable and tribal groups. These actions may be taken in the initial period of NACP-III, (iv) training ‘action-agents’ at every level for effective communication and implementation of the Tribal Action Plan. 2. Systematize Knowledge Management on HIV/AIDS for Developing Strategic Interventions among Tribal People:
During NACP I and NACP II efforts have been made in HIV high prevalence states and some of the High-risk states including Gujarat and Delhi wherein communication strategies were formulated and disseminated with the help of IEC collaborative media products (TV, radio and print) in collaboration with various government and non-government agencies at national and international level. This needs to be extended to the tribal communities in particular to get a multi-pronged and multi-faceted effect of the communication interventions on HIV/AIDS prevention and control as also to generate
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and disseminate evidence based on vulnerability of tribals to STIs and HIV/AIDS in order to develop strategic interventions among them. In this regard, in the initial period of NACP III, formative research for developing interventions among tribal groups may be formulated which would further consolidate the efforts on dissemination of evidence based information. Mass media centric programmes have proved to have limited acceptability in the past, while the quality of IPC efforts suffered to a large extent. Tribal populations are quite close knit and at the same time very distant from the new, globalised India. Hence, Inter-personal communication (IPC) has a major role to play in dissemination of information among this population, which has had limited exposure so far. In year 2, a “KNOWLEDGE CENTRE” at NACO for consolidating and disseminating knowledge on sexual health and HIV/AIDS issues pertaining to tribal groups may be formulated. Subsequently, to identify factors that increase “HIV/AIDS vulnerability” amongst vulnerable and tribal populations, it is imperative to support more research studies. There is also a need to review and document ongoing interventions and related research among vulnerable and tribal groups from time to time as an ongoing activity under NACP-III. Lack of focus and prioritization of messages has lead to a very closeended behaviour change. It is important to avoid dissemination of fragmented information, which most often leads to spread of ‘misinformation’ rather than ‘information’. Information disseminated through the Knowledge Centre should also focus on other areas of behaviour change to lead to a significant change in the society. Tribal populations are geographically as well as culturally ‘difficult-toreach’ as compared to communities in the non-tribal areas. Hence, a comprehensive package of mass communication and IPC is imperative to target behaviour change among this population. Also, monitoring and follow-up of these efforts forms an important part of this package, as also, the efforts should be more synergised and continuous rather than event based. Establishment of an entity like the Knowledge Centre can ensure this happens. 3. Increase Access to the Range of Services under the NACP for Tribal Area: Awareness plays a critical role in access of services
by the target groups.
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Poor physical access of tribal population to diagnosis and treatment under the NACP has been reported due to factors like difficult terrain and sparsely distributed tribal population in forest and hilly regions, locational disadvantage of primary health institutions (PHIs); longer distances to travel to reach to VCTCs and PHIs and weak primary health care infrastructure including VCTCs. Considering the fact that awareness is a major limitation for access of services wherever these are available, advocacy efforts in the tribal areas should focus on creating awareness of mere presence of diagnostic and treatment facilities in the vicinity. This could be done by involving the local leaders, anganwadi centres and schools and by strengthening the capabilities of ‘changeagents’ at grass root levels. Some actions to increase access to the range of services may be taken in the year 2 and 3 of programme, for example, Targeted Interventions (TIs) among most vulnerable tribal groups may be extended, ICTCs (stationary/mobile) catering tribal areas may be established and their effective functioning would also need to be ensured. Services like condom promotion, nutrition awareness and hygiene and health education should be extended among tribals. Access to effective IEC/BCC for HIV prevention and referral systems to increase the utilization of HIV/STI/RTI services may be improved and it would be an ongoing process. 4. Work with Development Partners and Public and Private Sector Enterprises to Improve HIV/AIDS Prevention and Control in Tribal People: Operationalising capacity of com-
munication programmes varies considerably with states and hence, the need for IPC to strengthen efforts through IEC and BCC, could be made possible through hand holding with development partners who have strong hold at grassroot level as well as segment specific targeted communication. Public private partnerships could be a link to strengthen operationalising capacity within tribal communities, involving positive people’s networks. A vital step would be to develop synergies between NACO and SACS, between partner ministries and departments and between different media channels like mass media, mid media to strengthen advocacy activities and ensure effective dissemination of IEC material. The in-flow of funds needs to be monitored and outflow channelised so as to make significant, effective and complete utilization of available resources.
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With regard to this, public private partnership for IEC, BCC and prevention strategies that includes promotion of condoms, mobile vans, referral services, adoption of ICTCs and training of medical staff and use of electronic media in media dark areas, may be ensured on continuous basis during the entire span of the programme. The implementation process for each of the suggested actions and their possible monitoring indicators under above-mentioned four areas has been illustrated in the detailed action plan given below.
• Formation of TCSG∗ at NACO for the entire duration • In the initial period of of NACP III NACP-III • Associate an official preferably Jt. Dir. (IEC) at NACO and his counterpart at SACS to address issues of tribal and social development • Ensure identification of vulnerable tribal people by states and prioritize coverage in phased manner • Plan stakeholder consultations at regional level involving SACS for preparing state/district specific strategies
Implementation process
• Guidelines available to integrate HIV/ AIDS services with NRHM for the tribal areas
NACO policies and programmes make adequate mentioning of specific vulnerable groups including tribals
Time duration and the frequency Possible of the activities to monitoring be undertaken mechanisms
• In the initial • DG (NACO) to be a special invitee in the steering • NACO & Integration of period of committee meetings of NRHM to discuss the ways and MoHPW HIV/AIDS NACP-III means of integration programmes with • SACS & Dept • PD SACS to be a special invitee in the meetings of State NRHM and Tribal of Health Rural Health Mission • DAPCU & Development District Health • The Point person at the state level to liaise with health Programmes department, tribal welfare and social welfare Deptt., civil Society (National, State society organizations at state and district level and District Level)
Ensure inclusion NACO & SACS of socio-economic and cultural dimensions of tribal people in the existing NACO policies and programmes
Action to be undertaken
Agencies that can effectively undertake activities
∗ TCSG (Tribal Consultative and Support Group): Represented by NACO, Funding Agencies, Ministry of Tribal Affairs, Ministry of Social Justice and Empowerment, Civil Society organizations, PLHA Networks
Integrate tribal and social development issues in the HIV/AIDS programme at every level
Objectives
Policy
Goal: Reduce Vulnerability of Tribal People to HIV/AIDS through ensuring equitable access to comprehensive care and support under the NACP III
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• NACO & Advocacy for sensitizing officials SACS and functionaries of Health and Tribal departments on issues of HIV, social development with a special reference to vulnerable and tribal groups
• Consider existing socio-cultural dimensions among tribal people across the regions while planning interventions • Point person in consulation with National and State NGO Advisor to identify and engage mother NGOs working in HIV/AIDS • Capacity Building of NGO/CBOs (working on HIV and non-HIV issues) in tribal areas by mother NGOs. • Point person to develop budget line items/have a provision of pooling funds from concerned deptt. In sight of coverage of tribal people • In the intial • Point person in consulation with TCSG to formulate period of strategies for advocacy among officials and functionaries NACP-III of concerned departments on issues of HIV, social development
(Continued)
• Advocacy and intervention strategies for vulnerable tribal groups developed
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• Ensure formative research conducted • Initial period • Number of research among tribal people at state level activity studies completed • To review the progress of the study conducted
• NACO/SACS • Development Partners • Research institutions Academic institutions, Tribal Research Institutes
Number of workshops conducted at national and state level on relevant themes
Formative research for developing interventions among tribal groups
• Year 2 activity
• Creating a platform for CBOs/ NGOs/CSOs working amongst tribal groups on HIV/AIDS issues to share their experiences through thematic workshops • Strengthen government and NGO partnership
• NACO/SACS Formation of a • Development “KNOWLEDGE Partners CENTRE” at NACO for consolidating and disseminating knowledge on sexual health and HIV/ AIDS issues pertaining to tribal groups
Systematize knowledge management on HIV/AIDS for developing strategic interventions among tribal people
Implementation process
Time duration and the frequency of activities to be Possible monitoring undertaken mechanisms
Actions to be undertaken
Agencies that can effectively undertake activities
Objectives
Knowledge
(Continued)
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• Ongoing • Identification of interventions process among tribal populations • Developing TORs keeping in mind the primary and secondary stakeholders of the interventions • Engaging consultants (for review) • Ensure mechanism for process documentations of the interventions involving NGOs/CBOs • Identification and determination of • Year 2 and the vulnerability of tribal groups and 3 activity
Review and documentation • NACO/SACS of interventions and related • Development partners research among vulnerable and tribal groups
Support research studies to • NACO/SACS identify factors that increase • Development partners “HIV/AIDS vulnerability” amongst vulnerable and tribal population immigration sexual life styles, solicitation, exploitation, interaction with
(Continued)
Number of vulnerable tribal groups identified and determinants of vulnerability identified
• Number of reviews conducted • Number of process documentations • Number of consultants engaged
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Action to be undertaken
NACO/SACS/ DAPCU
Agencies that can effectively undertake activities
Establish ICTCs (stationary SACS & Deptt of Health DAPCU mobile) catering to tribal areas and ensure effective functioning
Increase access Extend Targeted to the range of Interventions among most services under vulnerable tribal groups the NACP for tribal areas
Objectives
SERVICE AND CARE
(Continued)
• Number of TIs introduced in tribals areas • Number of NGOs/ CBOs trained • Number of ICTCs operational (mobile/ stationary) in the targeted areas • No. of training workers held to sensitize staff functionaries at different levels every quarter • No. of cases referred every quarter • Monthly submission of MIS reports to SACS/NACO
• Identification and capacity building • Year 2 of NGOs/CBOs to implement TIs among most vulnerable tribal groups
• Year 2 and 3 • Establish ICTs in the tribal areas Activity never within high risk districts (targeted areas) • Equip ICTCs with staff and facilities • Sensitize and train PHC workers, traditional birth attendants (dais), Asha, Angarwadi workers, mahila mandals and encourage referrals • Operationalize ICTCs in tribal areas and ensure referral links to RNTCP microscopy centre and Community Care Centre • Engage and train local tribal youth as counsellors
Implementation process
Time duration and the frequency of the activities to Possible monitoring be undertaken mechanisms
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Improve access to effective IEC/BCC for HIV prevention and referral systems to increase the utilization of HIV/STI/RTI services
• SACS & Dept. of Health • DA PCU • NGOs/CBOs
• Implement Family Health Awareness Ongoing since Campaign in areas of concentration inception of vulnerable tribal groups • Train community health volunteers and local youth to recognize symptoms of HMS TIs, RTIs and so old refer to appropriate facilities • Sensitize, train and involve rural Private Practitioners and traditional healers in syndromic management of HIV/STIs RTIs and also encourage referrals • Develop culture-specific/appropriate IEC messages using local dialects and appearing themes • Engage with local tribal youth, Ashram Schools Students from Tribal areas, mahila mandals, SHGs, PRI members to develop appropriate materials and themes • Use appropriate media – TV, VCD parlours, community radio network, folk media and folk art • Sites: Fairs, Markets, tourists spots.
IEC Strategies developed for each state. No. of FHACs organized quarterly No. of training sessions organized for CHVs. No. of rural PPs and traditional healers sensitized. Monthly submission of MIS sports to SACS/ NACO
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Objectives
(Continued)
Extend services for • Condom promotion • Nutrition awareness • Hygiene and health education
Action to be undertaken
• SACS • DAPCU
Agencies that can effectively undertake activities
Strategies for social marketing of condoms developed for each state No. of sensitization meeting organized monthly No. of life skills.
Programmes organized in schools and communities
From later half • Undertake free distribution and social marketing of condoms at fairs, or second year of NACP III festivals and markets • Identify appropriate local places to stock and distribute condoms • Sensitize depot holders including PRI members village head, school teachers, Anganwadi workers, ASHA, mahila mandals, SHGs, youth clubs and village priests • Introduce health promotion and nutrition education • Life Skills Education/promote safe sex behaviour among youth and adolescents, especially in tribal areas • Train locally youth as peer educators
Implementation process
Time duration and the frequency of the activities to Possible monitoring be undertaken mechanisms
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Action to be undertaken
Ensure public private Work with development partnership for IEC, BCC and prevention strategies partners and public and private sector enterprises to improve HIV/AIDS prevention and control in tribal people
Objectives
• NACO/SACS
Agencies that can effectively undertake activities
CONVERGENCE (PUBLIC PRIVATE PRTNERSHIP)
Encourage private sector partnership for • Promotion of condoms • Mobile vans • Funeral Services • Adoption of ICTCs • Training of medical staff • Use of electronic media in media dark areas
Implementation process Ongoing
Number of facilities effectively operationalised under PPP
Time duration and the frequency of the activities to Possible monitoring be undertaken mechanisms indicators
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NACP III Planning Team
NOTES 1. Census of India. 1991 Part II B (i) PCA- General Population (Vol. I & II). Downloaded from http://www.education.nic.in/htmalweb/stat1.html. 2. Integrated Disease Surveillance Project 2003: Tribal Development Plan. Downloaded from http://www.mohfw.nic.in/TDP.pdf. 3. Tribal Health Development Plan. Tamil Nadu 2003. Downloaded from http:// www.tnhealth.org/notification/tdp.pdf
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20 Caste is Dead: Long Live Caste∗ G P DESHPANDE
Pune witnessed two grand caste congregations recently. Though the aims of the two seemed different, they were actually exercises in caste identity assertion.
W
e live in times of caste. Of course, we always have, except that if we are to believe the Mahabharata, the caste (jati) of an individual was always difficult to identify, let alone to determine definitely (‘dushparikshya’) because of rampant inbreeding among the caste groups (‘sankarat sarvavarnam’). This was the view of Dharmaraja, the eldest of the Pandavas. (There is a fascinating story that appears in the ‘Aranya Parva’ of the epic in which this remark of Dharmaraja appears. The story in itself is not material here.) The point is that the great historical, mythological and religious (take your pick) works take that view. In normal times a simple citation from the epic would have been enough. Now it might be an error to cite that work as a reference point. M Karunanidhi and his radicals would brand it as nonsense. Buddhadeb Bhattacharya and his radicals may well dismiss it as imaginary. Narendra Modi and his people may accuse us of purposely distorting a great and sacred work of the Hindus. We have therefore chosen to give an eclectic and all-inclusive description of the work so that our citation is not suspect on account of the wrong terra firma on which we might be standing. ∗ This article has earlier been published in Economic and Political Weekly, 26 January , 2008.
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Be that as it may, the fact is that in more ancient times we as a people appeared quite open and even a shade ambiguous on the question of jati. Obviously the times have changed. We are completely convinced not only of who we are in caste terms but also of who everybody else is. Dharmaraja thought that this business was dushparikshya whereas the modern Dharmarajas think that it is quite ‘suprikshya’ (easy to determine).
THE MODERN PESHWAS Last week there was a big conference of the chitpawan brahmans in Pune. Nearly one hundred thousand chitpawanas had assembled in the city of the peshwas, themselves chitpawan brahmans, for a global congregation. Everything is globalised in our times. So was this conference. To be fair to these people they have always been quite meticulous about who they are and what their historical role is. All chitpawanas are divided into 100 odd groups, each sharing a common surname. They have exercised such an influence that no modern history of Maharashtra can be complete without a sizeable section on their contribution. One rather funny example of their all-pervading influence was that when Rajendra Singh alias Rajjubhaiya became the Rashtriya Swayamsevak Sangh (RSS) chief many Delhi newspapers thought that he was the first non-chitpawan chief of the RSS. The learned copywriters of the capital thought that the first three chiefs were chitpawanas. In fact, however, no RSS chief was a chitpawan. That speaks for the overwhelming presence that they have always had in modern Maharashtra’s life. This practice of getting the chitpawanas together is not recent. There is that famous incident relating to Veer Savarkar. Being a chitpawan he was once invited to a chitpawan gathering. He did not quite know how a Hindu nationalist could be present in a caste, actually a sub-caste get-together like that. He came out with a not so clever case that he was indeed born a chitpawan but was going there as a Hindu. He was chitpawan by birth and Hindu by consciousness. We are sure that there must have been thousands of chitpawanas there who were also caste-conscious Hindus in that huge turnover
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on the December 23. In Savarkar’s time this was mainly a provincial matter. Now it extends to the Silicon Valley and a large number of them flew to India for the congregation. It was also reported that the toll that one pays on the Mumbai-Pune expressway was waived for the folks travelling to Pune for the function. It is a practice in this state in particular that if you travel from one place to another for a caste or religious function you need not buy railway tickets. These upper caste well-to-do people naturally claimed the privilege that some lower castes claim! That is caste equality or sarva dharma sama bhava for you.
CASTE ASSERTION Nothing much happened at this conference. It was not meant to be. This meeting, it appeared, was in the main an exercise for liaisoning and contact building. At some stage, the (world) secretary of the chitpawan conference, in a speech in a conference preparatory to this grand mela claimed that once the sun never set on the British empire. Now, he went on to add, the sun never set on where the chitpawanas lived! It was a grand caste-identity assertion. The chitpawanas believed that they were brought into this world by Parashuram. There is thus a genesis that is specific to them that no other caste, that no other group can claim. Jyotiba Phule rather wryly characterised, with a degree of exaggeration and with clear polemical content, this position when he branded them as invading foreigners. No wonder then that Vishnu Krishna Chiplunkar, himself a chitpawan and a contemporary of Phule, never really forgave him. The polemic between Phule and the chitpawans like Chiplunkar still had social content. Their positions were interventions regarding a view of modern Maharashtrian society. It was more than a straightforward conflict between the conservatives and the reformers. Phule was a social revolutionary. People like Chiplunkar were modernist Hindus. This debate, which has not seen its end yet, cannot be dismissed as caste conflict. The Chiplunkars of the time placed themselves firmly within what they called “Arya” cultural syndrome. What these people were doing was firmly within a modernising impulse of contemporary society.
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These modern avataras, on the other hand, want to assert their caste status and increase their bargaining power within the developing and globalising economy. It is one way of joining the exploiting coalition. None of these chitpawanas have anything to do with the traditional chitpawan values. Before long a number of them would be pure American or English speakers. The curious thing is that the more you lose it the more it asserts itself.
IMAGINARY FIGHT But then this is not the only story of December. Just a day prior to this mela there was a congregation of the Marathas. Their concern was the claim for “reservations”. There was time when Maratha was a language identity. Certainly that was the case in Phule’s time. It has been turned into a caste identity. It does not have the inclusiveness that Maharshi Shinde’s concept of bahujan defined more than 50 years before Kanshi Ram or Mayawati used it. Bahujan as defined by Shinde helped him to be in constant touch with all movements including the anti-colonial struggle of the time including its leaders like Lokmanya Tilak. It appears that the new Maratha consolidation is not caste consolidation. It is a casteist consolidation. It uses the favourite terms of the radicals, like ‘parivartan’ (social transformation) and the like. But its biases are much too obvious. Its targets even include the scholarly and creative traditions of the brahmans. For example they would have little use of a summary critique of Marathi linguistic and literary tradition offered by Shinde, for the simple reason that Shinde takes the brahmans to be a legitimate part of Maharashtrian society even as he criticises or at times even attacks them. The new Maratha formulations cannot see the dialectic between brahmanya and the brahmans clearly. Its ideological position is so simplistic that nobody should be surprised if this ends up justifying the politics of hate. Unlike their chitpawan counterparts this Maratha sangh still has not woken up to the increasingly powerful world of free enterprise. It still finds itself in competition with the dalit job seekers. It indulges in the imaginary fight between the dominating brahmans and the
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suffering peasantry. It has perhaps got to do this because it knows that brahmans are no longer a part of the social contradiction in Maharashtra’s countryside. There are obvious implications of the caste situation in the countryside. It is not yet clear how it is going to handle them or how anti-brahman rhetoric is going to lead to any kind of useful, or to use the current cliché ‘parivartanvadi’ (socially transformative) force. Anyway, the city of Pune saw two big caste congregations. The politics of the two congregations was at two different levels. But it was not different. That politics was underlined by two posters of the Bahujan Samaj Party at the chitpawan gathering. If our friend’s version is correct, it clearly implied that, “you got it right. We are watching you. Where are the Mishras among the chitpawanas?” The other congregation was much too busy asserting its other backward class status and indulging in parivartanvadi rhetoric. But both the congregations seemed to be in agreement on one thing. It can be summarised rather neatly as, “Caste is dead. Long live Caste!”
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21 Tehelka Debate Beyond Caste∗ PUROSHOTTAM AGARWAL
W hy only caste? Reserve seats in educational institutions on the basis of schooling, gender and family income. That is the affirmative way to ensure social justice. Purushottam Agrawal opens a critical discussion.
T
he Indian government’s intention of introducing caste-based quotas for the “Other Backward Classes” in centrally funded institutions of higher learning and the prime minister’s suggestion to the private sector to ‘voluntarily go in for reservation’, has once again sparked off a debate on the merits and demerits of caste-based reservations. Unfortunately, the predictable divide between the votaries of “social justice” on one hand and those advocating “merit” on the other seems to have once again camouflaged the real issues. It is necessary to take a holistic and non-partisan view of the issues involved. The hue and cry about “sacrificing merit” is untenable simply because merit is after all a social construct and it cannot be determined objectively in a historically unjust and unequal context. The idea of competitive merit will be worthy of serious attention only in a broadly egalitarian context. But then, caste is not the only obstacle in the way of an egalitarian order.
∗ This article can be downloaded from http://www.tehelka.com/story_main18. asp?filename=Ne051306beyond_caste.asp
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After all, economic conditions, educational opportunities and discrimination on the basis of gender also contribute to the denial of opportunity to express one’s true merit and worth. It is interesting to note that in the ongoing debate, one side refuses to see the socially constructed nature of the notion of merit, while the other side refuses to recognise the multiplicity of the mechanisms of exclusion with equal vehemence. The idea of caste-based reservations is justified by the logic of social justice. This implies the conscious attempt to restructure a given social order in such a way that individuals belonging to the traditionally and structurally marginalised social groups get adequate opportunities to actualise their potential and realise their due share in the resources available. In any society, particularly in one as diverse and complex as the Indian society, this is going to be a gigantic exercise and must not be reduced to just one aspect of state policy. Seen in this light, caste-based reservation has to work in tandem with other policies ensuring the elimination of the structures of social marginalisation and denial of access. It has to be seen as a means of achieving social justice and not an end in itself. By the same logic it must be assessed and audited from time to time like any other social policy and economic strategy. Hence, it is important, to discuss reservation in the holistic context of much required social restructuring and not to convert it into a fetish of ‘political correctness’. Admittedly, caste remains a social reality and a mechanism of oppression in Indian society. But can we say that caste is the only mechanism of oppression? Can we say with absolute certainty that poverty amongst the so-called upper castes has been eradicated? Can we say that the regions of Northeast, Jharkhand, Chhattisgarh are on par with the glittering metros of Delhi and Mumbai? Can we say that a pupil from a panchayat school in Bihar is equipped to compete with an alumnus of Doon School on an equal footing, even if both of them belong to the same caste group? One of my students once remarked that he was regularly compelled to swim across a rivulet in order to reach his school, and the rivulet in question did not distinguish between Brahmins and Dalits. Incidentally, this young man happens to be a Brahmin by birth! Can we also say that gender plays no role in denial of social opportunities? After all, this society discriminates against girls even before they are born. What to talk of access or opportunities, they’re denied birth itself. Such discrimination exists across religious and caste lines.
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Moreover, the question is: do we want to eliminate caste as a factor of social relations and political processes or do we want to perpetuate it forever? Is it not true that by treating caste as the only medium of oppression and hence by focusing all remedial measures on caste alone, we have only added to the longevity of caste as the determining factor of social identity? Individuals have been virtually turned into the epitomes of the caste of their birth—denying the multiple identities that every individual perforce carries. This also helps the powerful amongst the generally disempowered sections to corner most of the benefits of caste-based reservation. Caste, which in reality is only one of the features of identity at the individual level and the manifestation of an abhorrent social order at the social and structural level, has been turned into the essential identity of individual citizens. Such a situation helps only those politicians who are in search of shortcuts to power. It is harmful for the cause of a modern social democracy as well as to the cause of individuals in need of social justice and related affirmative action. There seems to be a deliberate attempt to mislead public opinion by projecting caste-based reservation as the only form of affirmative action. Affirmative action has to “affirm” the social will to rectify unjust structures and practices in existence. Any society has a multiplicity of such structures and practices. Any programme of affirmative action has to tackle all these factors and not elevate any one factor to the level of a political “fetish”. Some of the votaries of caste-based reservation in our country liken it to the American model of affirmative action. Nothing could be further from the truth. As a matter of fact, the spirit of AA is contrary to the stagnant quota system in place in our country. The American system does not have any pre-fixed quota for those belonging to historically disadvantaged ethnicities. Marquita Sykes defines the American model as follows: “Affirmative action, the set of public policies and initiatives designed to help eliminate past and present discrimination based on race, colour, religion, sex, or national origin.” This model is all about the provision of opportunities to those belonging to the historically disadvantaged communities so that they can be integrated into the mainstream. This has helped both the corporate sector and public institutions in America to reflect the diversity of that society to a significant extent. The American model does not focus exclusively on ethnicity; gender and economic factors are taken into account as well.
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A similar comprehensive model of Affirmative Action was in place in the Jawaharlal Nehru University admissions policy till 1983, and undoubtedly helped JNU to reflect diversity of Indian society along with maintaining the highest academic standards in the country. Due to administrative expediency, this system was revoked in favour of the easier and politically more suitable system of flat caste-based reservation. I hereby propose a model of affirmative action that I will call MIRAA—Multiple Index Related Affirmative Action. As the name suggests, this model will take into account several factors when a candidate is considered for admission or employment. In the specific situation of our country, MIRAA will consist of the following indices: 1. 2. 3. 4. 5. 6.
Caste/Tribe Gender Economic status of family Kind of schooling received Region where candidate spent his/her formative years Status as a first generation learner/educational achievement in the family
Let me explain how this system will work. There will be no prefixed quotas. MIRAA will be operative on hundred per cent of the available seats for education or employment. Suppose there is a 100-mark scale for entry to a college/organisation. These 100 marks can be distributed amongst entrance test, interview, and academic performance as per the wishes of the institution in question. First and foremost, all candidates would be ranked on this hundred mark scale, depending on their performance in the entrance test, interview etc. Then MIRAA would be applied and each candidate irrespective of their caste can potentially benefit from it, due to the different indices, which make up the system. The maximum points a person can get under MIRAA are 30 and the minimum is 0. Now the candidate’s MIRAA subscore is added to the scores/he achieved in the admission process described above. This will be the total score. The candidates whose total score clears the cut-off for a particular subject/job will then be offered the position.
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Hence, this system does take into account both the qualification of the individual as well as the demands of social and economic justice. Unlike the quota/percentage system which confines the social justice mechanism only to a fraction of the available vacancies, MIRAA brings each and every seat under the ambit of social and economic justice. This proposal doesn’t take into account the religion of the applicant, as it is based upon the realisation that the ubiquitous nature of the institution of caste in Indian society. Hence, the members of marginalised and disempowered communities across the religious spectrum will get due benefits. For example, a Kidwai or Raza Muslim will not be awarded any points under caste index while an Ansari or a Salmani will get points in accordance with OBC status. The same logic applies to Christians and others as well. I request the reader to think, consider and react to MIRAA.
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22 Report from the Flaming Fields of Bihar A CPI (ML) Document INTRODUCTION
I
f a colossal miscarriage allowed social-democracy to blow in full bloom in the Indian Communist movement, to be sure, socialdemocrats too had to pay a heavy penalty for their victory: doomed as an essentially regional force, they could never really make any dent in the Hindi heartland. What else can one infer from the CPI(M)’s total failure to make any headway in Bihar despite presiding over a full-fledged model of social-democracy in neighbouring West Bengal for no less than nine years in succession? ‘Bihar is one of the most backward of Indian States, beset with rigid caste polarizations and devoid of any history of bourgeois reforms worth the name, argue Namboodiripad and Co. Well, these facts are as indisputable as the law: where social-democracy ends, revolutionary-democracy begins its journey. The same backward Bihar has proved to be a forward post of revolutionary-democracy, with the lowest rung of the society being drawn into the vortex of peasant struggles. From Pipta carnage to Arwal massacre, blood-thirsty landlord-armies to trigger-happy paramilitary forces, protagonists of ‘total revolution’ to ‘His Majesty’s Opposition’—none could enforce the ‘peace’ of the graveyard on the flaming fields of Bihar and none would be able to drive these unconventional actors to the backstage of historical action. But, will the struggle of the Bihar peasantry really be able to blaze a new trail? Or, will it too go the way of all its predecessors, ending in a
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disaster or in a halfway compromise? Today this question is haunting all sincere Marxists as well as all who sympathise with the cause of revolutionary democracy. The present book is the first in a series of attempts to deal precisely with this question. But before we enter the main body of the book, let us have a glance at the criss-cross pattern of the Indian communist movement and then examine the specific course of the struggle of the Bihar peasantry. Relations with the peasantry and with the bourgeoisie are two fundamental questions of tactics to be solved by the Communist Parties in backward countries with preponderant peasant populations. Wayback in 1921, Lenin had advised the communists of the Eastern countries to work out their own strategy basing on the general lessons of Russia’s Bolshevik revolution. He had warned them that they might not get the answers to their problems in any communist book. It was precisely this task that Mao Tse-tung undertook in right earnest while the Indian Communist Party leadership miserably failed to grasp its significance. Thus while CPC succeeded in correctly solving the questions concerning the Communist Party’s relations with the peasantry and the bourgeoisie at various stages of China’s democratic revolution and went on to emerge as the leader of the national liberation struggle, thereby providing valuable guidelines for integrating Marxism-Leninism with the concrete conditions of backward countries, the Indian communists could not develop any consistent line to deal with the two aforesaid problems. As a result, the Indian National Congress stole the show in India’s struggle for national liberation while the communists came to be regarded as its appendage and even as traitors to the cause of freedom. True, there were various factors that did contribute to this failure, for instance, the colonial rule of the British bourgeoisie; the emergence and development of the Congress as a forum with the queer admixture of a highly developed democratic functioning on the surface (regular sessions, changing presidents, various crosscurrents coexisting and competing among themselves, etc.) and the extra-organisational authority of Gandhi based on almost superstitious reverence at the core; the peculiar national, cast and communal issues; the conflicting pieces of advice from the Comintern and from certain Indian leaders guiding the Party from abroad, etc. What was really strange, however, was that the dominant section of the leadership developed a line of thinking that put the Russian and Chinese experiences of revolution in general and
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Lenin and Mao in particular in contradistinction to each other, and concentrated all energy on pointing out differences in the Indian and Chinese conditions. What a great predicament! The Communist Party of India refused to learn anything from the great revolution in the biggest Asian country, which incidentally was our neighbour too and from the thoughts of its undisputed leader Mao Tse-tung. It had nothing but ridicule for this great leader. With the defeat of PC Joshi’s line and in the context of the rise and fall of Telangana (1946–51), there emerged three distinct lines in the Indian communist movement. The line peddled by Ranadive and Co. rejected the significance of the Chinese revolution, ferociously attacked Mao as another Tito and advocated the simultaneous accomplishment of the democratic and the socialist revolutions basing on city-based working class insurrections. Drawing its sustenance from Stalin’s initial suspicion about the Chinese revolution and Mao Tse-tung, this left-adventurist line, however, ended in a great fiasco. The line of the Andhra Secretariat drew heavily on the Chinese experiences and the teachings of Mao in building the heroic struggle of Telangana. But the Andhra leadership, while successfully spearheading the movement against the feudal autocracy of the Nizam in conjunction with the Andhra Mahasabha, failed to tackle the complex question of meeting the challenge of the Nehru government and its army. It could not have possibly done that in the prevailing situation and therefore the two line struggle within the Party could not be taken to its logical conclusion. Nevertheless, Telangana remains one of the glorious chapters in the history of peasant struggles led by the Communist Party till date and reminds us of the first serious efforts by sections of the Communist Party to learn from the experiences of the Chinese revolution and to develop a comprehensive line for India’s democratic revolution, taking agrarian revolution as the axis. The Nehru government embarked on the road to parliamentary democracy, paving it with populist reforms like the zamindari abolition. Telangana having already suffered setback, objective conditions facilitated the dominance of a centrist line put forward by Ajay Ghosh and Dange. This line made a very big issue of the differences between the Chinese and Indian conditions and pushed the Party along the parliamentary road. In 1957 the communists succeeded in forming a government in Kerala, which however was soon overthrown while attempting
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radical agrarian reforms. That was a critical juncture in the evolution of the tactics of utilizing parliamentary struggle. While experience reemphasized the need of developing peasant movements and subordinating all parliamentary struggles to extra-parliamentary ones, the Party refused to learn its lesson and continued to proceed along the beaten track. In subsequent years, following the emergence of Khruschovite revisionism and the India–China war, the Party split into two. The Dangeite leadership took a national chauvinist position and began to peddle the theory of the so-called ‘peaceful road to noncapitalist development’. This line of national democratic revolution of the CPI transformed it over the years into an appendage of the Congress. For it, feudal remnants either do not exist in India or can be well taken care of by the Congress government itself. The CPI(M), the other faction, went ahead with the centrist line. In the old Ranadive tradition it continued to pit Stalin against Mao and therefore did not wholly subscribe to Khruschov either. It does speak of people’s democracy, but the people’s democracy of its conception is more akin to the people’s democracies of the East European variety. It goes on to denigrate the experiences of the Chinese revolution and has nothing but ridicule for Mao Tse-tung Thought. In recent years, Basavapunniah, the chief theoretical spokesman for the CPI(M), has further intensified attacks on Mao. He has virulently attacked Mao’s philosophical position on contradictions and his tactics regarding the national bourgeoisie. Pointing at the differences between the Indian and Chinese conditions, the CPI(M) continues to preach the impossibility of partisan war in India and has once against started highlighting the old CPI appraisal of the Chinese revolution, according to which base areas and red army had played not much of a significant role in China, rather the massive of the Soviet troops in Manchuria during the Second World War had been mainly responsible for the victory of the Chinese revolution. In their struggle against the national chauvinist leadership of the CPI, revolutionary communists allied themselves with the CPI(M). The party went ahead with its parliamentary exercises and riding on the crest of mass movements formed a United Front government in West Bengal through an opportunist coalition. The role of this government in suppressing the Naxalbari struggle exposed the revisionist character of the leadership and by all standards, conditions
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were ripe for an all-out rebellion in the party. And rebellion it was—in West Bengal and Kerala the CPI(M) found its strength sufficiently eroded while in some States the entire State Committees walked out in support of Naxalbari. The spirit behind Naxalbari was the same as in Telengana, viz., the spirit of highlighting the role of the peasant struggle in India’s democratic revolution, of drawing on the experiences of China and the teachings of Mao. However, the times had greatly changed. Naxalbari emerged against a new background: there was the great division in the international communist movement, land reforms and the democratic façade of the Congress had by then lost much of their earlier glamour, the country was facing a serious agrarian crisis that was being sought to be resolved through the imperialist strategy of green revolution, and to top it all, there was a grave political crisis as reflected in the first-ever defeat of the Congress in the elections to many State Assemblies. In other words, Naxalbari emerged in a fine revolutionary situation when the ruling classes could no longer rule in the old way. It was direct assault on the discredited and declining ruling power. Moreover, this time the revisionist leadership of the party was also clearly on the other side of the fence, presiding over the police as it went on killing the peasants and the revolutionaries. Different as the circumstances were, the impact was also different. Naxalbari did not stop at Naxalbari. With the building of, first, the AICCCR and then the CPI(ML), it spread like wildfire over many parts of India. The new revolutionary Party emphasised the scarlet threat that ran through Leninism and the entire course of its application in semi-colonial China by Mao Tse-tung. Making a clear break with the Indian variety of revisionism, it decided to incorporate, apart from Marxism-Leninism, Mao Tse-tung Thought too in its guiding ideology, and put greater emphasis on the similarities between the Indian and Chinese conditions. However, unlike some people who described themselves as Maoist communists, this new Party never declared itself as a Maoist party, but simply as the genuine MarxistLeninist Party of India. To begin with, in its first steps on an entirely new course of Indian revolution, the new Party had no other option but to follow the Chinese model which at that time also provided the main form of struggles to the peoples of Vietnam as well as of other South-East Asian countries.
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Telengana was resurrected in its spirit and colour. The air was charged with the slogans of guerilla war, red army and Yenan and the songs of long march. The struggle spread to many parts of the country with West Bengal and Andhra Pradesh emerging as the main bastions. Thousands of students and youth jumped into the fray and revolution seemed so close. Naxalism, as a new brand of communist movement, became a national phenomenon and a new word in the political dictionary. However, the euphoria was soon over. What had seemed to be the final enactment of revolution proved to be no more than a dress rehearsal. With hundreds having shed their lives and thousands languishing in the jails, the gloom set in, and as it always happens, it was accompanied by confusion, splits and disintegration. No one could be sure of the stand of this or that Party leader. People changed their positions with unbelievable speed. Yesterday’s friends and close comrades became today’s adversaries. For many, the dreams of liberation turned into veritable nightmares. Appeals were issued by leaders in jail, efforts were made to reorganize the scattered forces, but nothing could check the drift. History rolled on in its due course. For many participants of the movement it was simply finished and finished for good, others continued to cherish the fond memories of the 70s with the vain hope that a forceful repetition of the old slogans might resurrect the old situation as well, while still others based themselves on the naïve assumption that the situation could be saved if only all the old fragments could be united somehow or other. In its disorganized state, the movement gave rise to all possible trends and groupings and there ensued a protracted polemical war in the bitterest of fashions. All sorts of people, even those considered long dead or permanently silenced began to stage a comeback from oblivion. And with them came back the whole range of questions supposed to have been already resolved once and for all. The point was how to revive the movement. Some felt it was enough to condemn the ‘line of annihilations’, boycott of elections and trade unions, and so on. Some even went so far as to condemn the CPI(M) itself and thought that the answer lay in reviving the AICCCR. In the period following the Emergency, Charu Mazumdar was made to appear as a discredited revolutionary in West Bengal itself as the
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scene came to be dominated by S N Singh and his PCC. And then came the final blow from Kanu Sanyal who informed the world that the very struggle in Naxalbari was his brainchild, it was he who had built it up resisting Charubabu’s left-adventurist forays while Charu Mazumdar only destroyed it by overriding Kanubabu’s proposal of coming to a tactical agreement with the United Front government (perhaps in the old fashion of ‘withdrawal’ of the Telangana struggle by the then Party leadership in 1951). While all this went on under the reign of social-democracy in West Bengal and to a great extent in Andhra too (the residual leadership in Srikakulam as well as the C P Reddy faction having already joined hands with S N Singh), Bihar had an altogether different story to tell. And to be sure, from much earlier periods. …
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As alternative to the Gandhian strategy of freedom struggle and in contrast to it, if Bengal excelled in terrorism and in the ‘leftism’ of Subhas variety and Bombay in the strikes of the working class, Bihar came up with a powerful Kisan Sabha movement right in the 1930s. It was at Champaran in Bihar where Gandhi began his experiments with the peasantry, gradually evolving the strategy of mobilizing the peasants in a peaceful, non-violent Satyagraha against the British rule while discouraging any movement against the ‘swadeshi’ zamindars. The peasants of Bihar did respond zealously to every call of freedom struggle coming from the Congress leadership, but in each and every case they translated the restricted Congress call into an active, often violent, movement against the zamindars. The zamindars being the main social prop of the British rule in India, the peasants naturally interpreted these calls in the language they understood. The objective contradiction of real life forced the interim Congress ministry of Bihar, which assumed office in the wake of the 1937 elections to negotiate a written agreement with the zamindars, an event unparalleled in India’s freedom movement. By contrast, the Kisan Sabha movements, having begun as a wing of the Congress, gradually detached itself from the Congress and came under the fold of the revolutionary democrats, a sizeable section later joining the Communist Party. History clearly shows that during the Kisan Sabha movement caste-based
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polarizations had all receded into the background. Also the antiBrahminical movements or Ambedkar-type Dalit movements or the Harijan cause of Jagjivan Ram could never find much favour in Bihar during the entire phase of freedom struggle even as the CPI and the Socialists successfully developed a strong base. If the CPI still remains a powerful base, it is more due to the legacy of the Kisan Sabha movement and certain positive achievements in the 1950s during the period of Telangana. In the post-independence period, to prevent the outbreak of Telengana-type struggles, once again Bihar was selected as the focal point for Vinoba Bhave’s Sarvodaya strategy. Erstwhile Socialist and an activist of the Kisan Sabha movement, Jaya Prakash became the chief exponent of Sarvodaya in Bihar. But the agrarian reality of Bihar prevailed over their high-sounding rhetoric’s, and with Bhoodan ending in a big fiasco Vinoba returned to Wardha and JP, too, temporarily retired from public life. The retreat of Vinoba and JP was followed by the advent of the political crisis of the mid 1960s, and it was against this backdrop that Naxalbari immediately found its echo in the Musahari block of Muzaffarpur district in North Bihar. But soon the struggle there suffered a setback and once again JP jumped into the fray armed with his neo-Sarvodaya strategy, which later developed into his famous theory of ‘total revolution’. While JP went ahead with his avowed aim of combating the ‘menace of Naxalism’, revolutionary communists, too, continued with their attempts to develop peasant struggles in different parts of Bihar, though with little success in the beginning. But just when things seemed to be going exactly the Bengal way by the end of 1971, quite unexpectedly the South Bihar districts of Bhojpur, and to a lesser extent, Patna started sending encouraging signals. Rooted deep in the prevailing social conditions, the struggle in Bhojpur and Patna began on a different note and there emerged a non-traditional indigenous core of leadership. All the precious blood of our heroic martyrs spilled over the fields and factories, hamlets and lanes, torture chambers and prison cells all over the country rose high in the sky and there appeared a red glow over Bhojpur. And as subsequent years have proved, the glow was not that of a meteor, but of a star, a red star that has come here to stay and shine.1
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The independent course of the peasant struggle and the Party’s attempt to impart consciousness to it went through a peculiar phase of unity and struggle. The Party worked hard to develop communist elements from among the peasant vanguards, always trying to check the spontaneous negative tendencies of the movement and give it an organized shape. There were, however, also strong attempts on the part of the Party to super-impose its set of dogmatic ideas regarding forms of struggle and organization on the movement and to be sure, these attempts proved counter-productive. Finally, the Party wide rectification movement in the changed political situation of the post-Emergency period helped restore the balance and provided new momentum to the fledgling peasant struggle, and we arrived at the present phase of widespread peasant awakening. Paradoxically, the victim of this entire development was S N Singh, who hailed from Bihar and that too from Bhojpur itself. The ghost of Charu Mazumdar drove him away from Bihar and in communist revolutionary circles in the State he became the most discredited person. Incidentally, the ‘credit’ for the first and so far the only fundamental division in the CPI(ML) goes to none other than the Bihar State Committee under the leadership of S N Singh. All other divisions are either artificial, temporary or of no great significance. Attempts have been made and are still being made to formulate a comprehensive ‘left’ line by certain groups, but no such line can be claimed to have been developed so far. Semi-anarchism is still at best a tendency debating over forms and methods of struggle and organization, and a major section of those presently obsessed with this tendency will surely come back to the Marxist-Leninist fold as they gain more experience with the passage of time. In contrast, SN’s was a definite alternative tactical line advocating well-defined relations with well-defined social forces. That is why he was resurrected again and again and continues to assert even after his death at one pole of our movement. His essential difference with Charu Mazumdar began on the question of the relation with rich peasants. He emphasized unity with the rich peasants in contrast to CM’s emphasis on neutralizing them through struggle. Subsequently, this line developed into that of unity with sections of the class of landlords and with the bourgeois opposition. (Bhaskar Nandy temporarily outwitted SN by theorizing this unity on
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the basis of a totally different premise. However, S N soon withdrew himself from Nandy’s erroneous theoretical exercise.) Later on, on the question of united front S N we both started from the same premise of developing a nationwide political alternative to the Congress rule. But the similarity ended here itself as S N chose to follow a totally different course, joining hands with JP, cultivating relations with the leaders of the Janata Party and a host of liberals, condemning the key role of agrarian revolution, and even going so far as to coin the now famous formulation that the proletariat may or may not lead the democratic revolution. True, under various pressures and compulsions, subsequently S N did have to compromise on many of his pronouncements, but these were more in the nature of tactics and did not affect his essential position. We, on the other hand, stood for boldly expanding the peasant struggles which no doubt hit substantial sections of the rich peasants, too, who in Bihar do indulge in serious feudal practices. And precisely on the basis of these struggles did we work for developing the revolutionary bloc of the workers, peasants and the petty bourgeoisie as an alternative to the Congress rule even as we left the door open for tactical manoeuvrings with the parties and factions of the bourgeois opposition. It is in the context of this struggle between the two tactical lines that the peasant struggle in Bihar developed and expanded. …
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Emerging as it did in a different setting of the international communist movement, the peasant struggle in Bihar did not get open support from the Chinese Communist Party, and in the face of sharp factional divisions, it even failed to receive a sympathetic hearing, let alone necessary support, from various communist revolutionary groups in India. Here was a situation that was really vastly different from what obtained during the struggles of Naxalbari and Srikakulam. However, the movement has indeed gained widespread solidarity from many quarters. In fact, it would have been impossible to sustain the movement for all these long years, had it not been for the valuable guidance provided by many veterans of the Indian communist movement and important leaders of the united CPI(ML), the
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help and cooperation received from the communist revolutionary ranks belonging to different groups and from Marxist academicians, revolutionary-democrats, civil liberty organizations, truth-seeking journalists, noted cultural personalities and progressive Indian circles abroad, and the support extended by the Communist Parties of China, Nepal, Philippines, Peru and other foreign friends. …
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The current struggle in Bihar is expanding in districts which have a fighting heritage dating back to the old Kisan Sabha days. These are the districts where the incidence of big landlordism is low, but where landlordism enjoys a wider base, encompassing not only the ex-intermediaries but also erstwhile powerful raiyats. Compared to many other parts of Bihar, agriculture in these districts is marked by a relatively greater use of modern means, better transport facilities and a more pronounced market-orientation of the rural economy. The various agrarian issues that have come to the fore in these districts are such as affect the rural poor all over India, viz., minimum wages, tenancy rights, occupation of vested, benami, communal and government lands, prevention of distress sale of crops, easy availability of various inputs at cheaper rates and so on and so forth. In short, the region to a great extent is a typical representative of the changing pattern of Indian agriculture. Indian agriculture today is also facing a new type of crisis caused by the saturation of the strategy of green revolution and ‘overproduction’. And as a direct outcome of this crisis, there has emerged a new type of farmers’ movement in certain parts of India. In Maharashtra, in particular, it has found a fertile field as well as a powerful exponent in Mr Sharad Joshi. The theoretical framework propounded by Mr Joshi focuses on the contradiction2 between poor rural Bharat3 and rich urban India, stresses economic upliftment of the peasants as the cure-all for all the ills being faced by the country today, and concentrates exclusively on the single point demand of remunerative prices for agricultural produce. He does not believe that any substantial ground exists for major conflicts among different sections of the rural population, and it goes without saying that the peasants of his conception are none other than the rich and middle farmers. As to why he is not laying any particular stress on the agricultural labourers,
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Mr Joshi holds that, first, any economic gains achieved by the peasants will automatically percolate to the former by way of higher wages, and second, the lowest strata of the people have never played in history the vanguard role in bringing about social transformation. Despite his agitational mode of operation, it is this emphasis on rural development coupled with his insistence on non-party politics and persistent anti-communist bias that has endeared Mr Joshi to the Sarvodayites, who are perhaps in search of a new messiah after the departure of both Vinoba and J P. So, one now witnesses a battle for supremacy between the East and West winds within the peasant movement, blowing respectively from Bihar and Maharashtra. In sharp contrast to the farmers’ movement in Maharashtra, the peasant struggle in Bihar has in its forefront the agrarian labourers, who are quite numerous, as well as the poor and lower-middle peasants, while sizeable sections of the kulaks including, in certain pockets, elements from certain backward castes, find themselves on the other side of the fence, as a veritable target of attack, at least in the present phase of the movement. But even as the latter lays the highest stress on thoroughgoing land reforms, it does also strive to incorporate the issues arising out of the crisis of green revolution, issues that affect large segments of the middle and upper-middle peasants. The outcome of this battle between the two winds has not yet been decided, and the final sequences of what may prove to be a most fascinating epic-drama in the history of India have not unfolded themselves either. Still, when the unceremonious death of the poorest among the peasants in the unknown, unheard of, dingy, mud-tracked, tiny country-town of Arwal begins to shape the political crisis of the power that be in Bihar, one can safely proclaim that the heroes have finally arrived on the stage. 13th May, 1986
Vinod Mishra
NOTES 1. Quite interestingly, SN had at one time slandered the Bhojpur struggle as being guided and financed by Jagjivan Ram and later on, the dominant section of the
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PCC leadership also preferred to dismiss Bhojpur as a purely caste struggle. Late Comrade CP, during my talks with him, revealed how on persistent enquiries by the Chinese comrades about Bhojpur, Bhaskar Nandy had continued to repeat similar allegations. CP, however, differed with them and was even inclined to consider that annihilation, as practiced in Bhojpur, did have practical justification. 2. Interestingly, Mr Joshi refers to Rosa Luxemburg in his support as against Lenin. He is also very much against Stalin’s tackling of the kulaks. However, his comments on Mao are not known. 3. To be fair to him, it must, however, be acknowledged that his rural Bharat does also include sections of the urban poor slum dwellers for instance, whom he considers as peasants driven away by poverty.
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Gulamiya Ab Hum Nahi Bajeibo
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SECTION VI
Freedom and Equality, Rights and Social Security: Building Blocks of Justice
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Introduction
I
t should strike our attention that the concept of justice is now expanding its ambit to robustly to include within its fold several other concepts, such as rights, equality, dignity, fairness, and freedom. In this way the idea and mechanisms of social justice becomes an inclusive means of restoration of rights. The struggle against discrimination and inequity empowers and enables the marginal sections of society to fight their own battle for dignity and achieve it—to become equal citizens of their state. Justice has many faces and its spheres are vast. Though justice has myriad other building blocks, this section presents papers and reports that specifically deal with four building blocks of justice—freedom, equality, rights and social security. States too have engaged themselves with safeguarding the tenets of justice through the language of rights, freedom and equality. In the post second world war period, many states sought to redistribute national wealth according to some principle of distributive justice. Similarly, rights of individuals and/ or groups have been constitutionally guaranteed. There have been measures also to introduce social security provisions for workers. In all these cases, the discourse of welfare has been linked to the politics of social justice. Yet we know, the complex legal and administrative system has often proved to be an enormous hurdle in the way of guaranteeing justice through these four avenues. As the report shows, rights of the privileged get priority over the issue of justice for the disadvantaged sections of the society. Indian society has an added disadvantage as it is plagued by majoritarian construction of citizenship where women, Dalits, minorities, ethnic groups and others feel uncared for and neglected by the state apparatus of welfare. India like any other developing country is aiming for but miserably failing at an attempt to reconcile liberty and equality with justice.
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This section of the compendium focuses on these building blocks. The first article focuses on The Draft Scheduled Tribes (Recognition of Forest Rights) Bill 2005. The writer feels this bill finally recognises the debt of the Indian state to its indigenous peoples. As against the paternalism of earlier tribal legislations like the Fifth Schedule, this Bill is based on an admission that ‘historical injustice’ has been done to the Adivasis and has tried to undo those injustices. The second article is a brief on the informal sector in India, broadly characterised as consisting of small units engaged in the production of goods and services with the primary objective of generating employment and incomes to the persons concerned. This article classifies a number of models of providing social security to the workers in the unorganised sector and speaks of several government institutions. The third article looks into the career and prospects of the right to strike in India. It argues that the expanding global economy will bring considerable benefits to many, but will also place a vast number of people at risk. In this unequal battle, the disadvantaged—both within and outside the mainstream economies of the world—will have to wage many national and global struggles for sustenance, self protection and social, political and economic justice. The writer revisits some legal precedents to this right in order to ascertain its historical and legal precedents. The last article chosen in this section attempts to link the question of right to food with democracy. It is argued that the right to food forms one of the basic economic and social rights essential to achieve ‘economic democracy’ in India. This right is nowhere near realisation in India, where malnutrition level is among the highest in the world. Though serious difficulties are involved in making the right to food fully justiciable, new interventions are possible in at least three ways—legal action, democratic practices, and through changing public perceptions. Also, the right to food has to be linked to economic and social rights relating to education, work, health and information, which together hold the promise of radical change in public priorities and democratic politics. The articles selected in this section reflect on these building blocks of justice and give us a sense of how much or how little the state has institutionalised measures to achieve it. They also tell us how only by ensuring all these other attributes that justice is ensured.
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Gulamiya Ab Hum Nahi Bajeibo
23 Jungle Book Tribal Forest Rights Recognised for First Time∗ NANDINI SUNDAR
T
he Draft Scheduled Tribes (Recognition of Forest Rights) Bill 2005, finally recognises the debt of the Indian state to its tribal peoples. As against the paternalism of earlier tribal legislations like the Fifth Schedule, this Bill is based on an admission that ‘historical injustice’ has been done to Adivasis. In taking away their land in order to reserve forests for imperial and commercial purposes, the colonial and post-colonial states literally stole from the poor in order to give to the rich. But in cloaking their own actions under the ‘legality’ of the Indian Forest Act, and making the subsistence activities of Adivasis illegal, the state introduced a problem of ‘law and order’. For the government, this problem is manifested by villagers’ violations of forest law. The real law and order problem, however, is that the forest law was part of a coercive order, which independent India inherited and did little to change. The Bill, if passed, however, will begin to unpack some of this colonial baggage. It lists duties as well as rights, making the obvious, but hitherto unacknowledged, connection between the security of forest dwellers and the health of the forest. Many villages protect their local forests, even without any legal right to them. In some instances, that I have personally witnessed, the thieves are forest officials themselves. The Bill says that forest right holders “shall ensure
∗ This article has earlier been published in The Times of India, 4 May 2005.
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that no activity shall be carried out that adversely affects the wildlife, forest and biodiversity in the local areas” and that any such destructive activities are reported to the gram sabha and stopped by it. And unlike previous joint forest management resolutions, this law would actually give the gram sabhas powers to fine people or derecognise forest rights. Given the authority, there is so much that these currently informal forest protection committees could do. The Bill makes the gram sabha responsible for identifying both land under long-term cultivation and who is entitled to tenure on it on the eminently sensible assumption that villagers know more about their own locality than a distant bureaucracy. Where written records are lacking, oral history, traditional symbols of use, and other such evidence can be adduced. Information about forest rights is to be widely publicised, using local methods and adivasi languages, so that no forest rights holder is denied a chance to be heard. Earlier Acts (like the Land Acquisition Act) simply require that information be published in an official gazette or, at most, some local newspapers. For the first time, the government has recognised that few Adivasis can access newspapers, leave alone official gazettes, and file objections or claims in time. Hence, the Bill vests these forest rights in people, and puts the onus of recognising them on the state. Failure by the authorities to follow due process is punishable by a fine and/or imprisonment. This will, hopefully, put an end to the kind of forced evictions that characterised the last century. Of course, the rich may dominate gram sabhas and get land registered in their names. But simply because Indian democracy at large is faced with criminality and subverted by money, no one argues that elections should not be held. I see no reason why millions of gram sabha members exercising their democratic rights should do any worse at protecting their forests, on which they are dependent for life, than a centralised forest bureaucracy. The ministry of environment and forests (MoEF) has been painting a picture of impending chaos if the Bill is passed, but it is hard to see what its precise problem is, other than a loss of turf to the ministry of tribal affairs (MoTA). On February 5, 2004, the MoEF passed an order regularising tribal encroachments up to 1993. That was clearly an election stunt and was subsequently stayed by the Supreme Court. But in a sworn affidavit to the Supreme Court in July 2004, seeking a vacation of the stay, the MoEF argued that their February 5 guidelines
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were “based on the recognition that the historical injustice done to the tribal forest dwellers through non-recognition of their traditional rights must be finally rectified. It should be understood clearly that the lands occupied by the tribals in forest areas do not have any forest vegetation”. The conservationists have failed to provide an alternative political vision beyond relocating villages out of national parks and retaining control within the forest department—an approach that has failed. Land pattas are not the only ‘forest rights’ covered by the Bill. These include the ownership of minor forest produce (MFP), pastoralist rights, and intellectual property rights. Each of these is critically important: MFP, for example, is often the only source of cash income for adivasis. The major problem with the Bill is that it excludes equally poor and forest dependent non-Adivasis, some of whom have lived in the area for long. The original draft of the technical committee included “other forest dwellers” in its ambit. Perhaps, an attempt could be made to draw up a schedule of such eligible categories. The institutional gain, however, is that MoTA’s right to look at everything that affects adivasis is finally being recognised. We have tried forest department managed conservation long enough and the tigers have vanished, the trees have vanished. Perhaps it is now time to give people a chance.
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24 Informal Sector in India Approaches for Social Security*
I
nformal sector in India is broadly characterized as consisting of units engaged in the production of goods and services with the primary objectives of generating employment and incomes to the persons concern. These units typically operate at low level of organisation, with little or no division between labour and capital as factors of production and on a small scale. Labour relations, where they exist, are based mostly on casual employment, kinship or personal or social relations rather than contractual arrangements with formal guarantees. Thus, production units in informal sector are not constituted as separate legal entities independently of the household or household members that own them and for which no complete sets of accounts are available which would permit a clear distinction of the production activities of the enterprises from the other activities of their owners. The owners of their production units have to raise the finance at their own risk and are personally liable, without limit, for any debts or obligations incurred in the production process. Expenditure for production is often indistinguishable from household expenditure. For statistical purpose, the informal sector is regarded as a group of production units, which form part of the household sector as household enterprises or equivalently, unincorporated enterprises owned by households. In India, the term informal sector has not been used in the official statistics or in the National Accounts Statistics (NAS). The terms used in the Indian NAS are ‘organised’ and ‘unorganised’ sectors. The organised sector comprises enterprises for which the statistics are available from the budget documents or reports etc. On the other hand ∗ The article is available online on http://labour.nic.in/ss/INFORMALSECTOR ININDIA-ApproachesforSocialSecurity.pdf
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the unorganised sector refers to those enterprises whose activities or collection of data is not regulated under any legal provision or do not maintain any regular accounts. In the unorganised sector, in addition to the unincorporated proprieties or partnership enterprises, enterprises run by cooperative societies, trust, private and limited companies are also covered. The informal sector can therefore, be considered as a sub-set of the unorganised sector.
MAGNITUDE OF WORKFORCE ENGAGED IN THE UNORGANISED/INFORMAL SECTOR The National Sample Survey Organisation (NSSO) carried out a sample survey in 1999–2000 and its results showed that out of total workforce of 397 million, only 28 million workers are employed in the organised sector and remaining in the unorganised sector. It reveals that over a decade, the employment in the organised sector has been almost stagnant or slightly declined. In light of the definition of informal sector encompassing private unincorporated enterprises as mentioned above, NSS 55th round, 1999–2000 also covered non-agricultural enterprises in the informal sector in India. As per survey, there were 44.35 million enterprises and 79.71 million workers employed thereof in the non-agricultural informal sector of the economy. Among these 25.01 million enterprises employing 39.74 million workers were in rural areas whereas 19.34 million enterprises with 39.97 million workers in the urban area. Among the workers engaged in the informal sector, 70.21 million are full time and 9.5 million part times. Percentage of female workers to the total workers is 20.2 percent.
RELEVANCY
OF THE INFORMAL
IN INDIAN
CONTEXT
SECTOR
Broadly, the informal sector provides income-earning opportunities for a larger number of workers. In India, there is large magnitude of workforce getting their livelihood from the informal sector. The enactment of legislations and other measures to bring them under the
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regulatory and social protection instruments will adversely affect the existing mechanism prevailing in the informal sector as it would lead to market imperfections creating hurdles in the smooth functioning of the market led economy. Besides, it requires huge infrastructural and institutional arrangements involving financial implications beyond the capacity of the Government in the changing scenario all over the world. The Government has to play the role of a facilitator and promoter so that the workers employed in the informal sector are able to get requisite level of protection and security to have decent work environment enabling them to express their skills fully and according to their capabilities necessary for enhancing the competitiveness of their outputs and thereby raising their income and socio-economic status.
IMPORTANCE OF INFORMAL SECTOR IN INDIAN ECONOMY About 370 million workers constituting 92 per cent of the total workforce in a country were employed in the unorganised sector as per NSS Survey 1999–2000. It plays a vital role in terms of providing employment opportunity to large segment of the working force in the country and contributes to the national product significantly. The contribution of the unorganised sector to the net domestic product and its share in the total NDP at current prices has been over 60 per cent. In the matter of savings the share of household sector in the total gross domestic saving mainly unorganised sector is about three-fourth. Thus unorganised sector has a crucial role in our economy in terms of employment and its contribution to the National Domestic Product, savings and capital formation. At present Indian economy is passing through a process of economic reforms and liberalization. During the process, merger, integration of various firms within the industry and up gradation of technology and other innovative measures take place to enhance competitiveness of the output both in terms of cost and qualitative to compete in the international market. The low inefficient units either wither away or merge with other ones performing better. In this situation, there is a special need to take care of the interests of the workers by providing them training, upgrading their skills, and other measures to enable them to find new avenues of employment,
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improve their productivity in the existing employment, necessary to enhance the competitiveness of their product both in terms of quality and cost which would also help in improving their income and thereby raising their socio economic status. It has been experienced that formal sector could not provide adequate opportunities to accommodate the workforce in the country and informal sector has been providing employment for their subsistence and survival. Keeping in view the existing economic scenario, the unorganised sector will expand further in the years to come. Thus, it needs to be strengthened and activated so that it could act as a vehicle of employment provider and social development.
SOCIAL SECURITY In India the term social security is generally used in its broadest sense, it may consist of all types of measures preventive, promotional and protective as the case may be. The measures may be statutory, public or private. The term encompasses social insurance, social assistance, social protection, social safety net and other steps involved. There are number of models of providing social security to the workers in the unorganised sector. These may be classified as under: z z z
z
Centrally funded social assistance programmes. Social insurance scheme. Social assistance through welfare funds of Central and State Governments, and Public initiatives.
The centrally funded social assistance programmes include the employment oriented poverty alleviation programmes such as Swarnjayanti Gram Swarojgar Yojana, Jawahar Gram Samridhi Yojana, Employment Assurance Scheme. National Social Assistance Programme (NSAP) comprising old age pension, family benefit and maternity benefits to address the social security needs of the people below poverty line. The social insurance schemes include several schemes launched by the Central and the State Governments for the benefit of weaker sections
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through the Life Insurance Corporation of India and General Insurance Corporation of India. There are schemes for the employees of shops and commercial establishments and other weaker sections. ‘Janshree Bima Yojana is a group insurance scheme and covers natural/accidental death, partial or total permanent disability due to accident and the people below poverty line and marginally above are eligible to join the Scheme. Another group insurance scheme for the agriculture landless labour, ‘Krishi Shramik Samajik Suraksha Yojana-2001’ launched in July, 2001 provides for pension and insurance besides providing money back. The contribution of the beneficiary is Re 1 per day while the Government contributes Rs 2/- per day. Several public institutions and agencies are also imparting various kinds of social security benefits to the selected groups of workers. Among these Self Employed Women’s Association (SEWA) has made significant achievement in promoting social security through the formation of cooperatives. Welfare funds represent one of the models developed in India for providing social protection to workers in the unorganised sector. The Government of India has set up five welfare funds. Central funds are administered through the Ministry of Labour for the beedi workers and workers in certain other occupations for whom no direct employers-employee relationship exists and is implemented without any contribution from the Government. The scheme of welfare fund is outside the frame-work of specific employer and employee relationship in as much as the resources are raised by the Government on non-contributory basis and the delivery of welfare services is affected without linkage to individual worker’s contribution. These funds are constituted from the cess collected from the employers and manufacturers/producers of particular commodity/industry concerned. The Government has also enacted a Central legislation for building and other construction workers towards creation of welfare funds at the level of States. There are around 20 million construction workers in the country. A small cess is collected on the basis of the cost of a construction project which makes the corpus of the welfare fund for the construction workers. All facilities as enumerated above are provided to this section of the unorganised sector workers. Presently three States in the country namely, Kerala, Tamil Nadu and Delhi have started implementing schemes under this Act. However, other States are in the process of adopting.
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Moreover, the welfare fund model has successfully been implemented by various States for various categories of workers. The State of Tamil Nadu is running 11 Welfare Boards for workers like construction workers, truck drivers, footwear workers, handloom and silk weaving workers. Similarly, State of Kerala is also running several welfare funds for agricultural workers, cashew workers, coir workers, fisherman, toddy-tappers, etc. The model is so popular that some of the other States like Andhra Pradesh, Karnataka and Madhya Pradesh are in the process of bringing out their own legislation for creation of welfare funds in the unorganised sector workers for providing them social security.
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25 Arguments, Protests, Strikes and Free Speech The Career and Prospects of the Right to Strike in India∗ RAJEEV DHAVAN
I. RECONCILING THE POLITICS OF STRUGGLE WITH THE POLITICS OF GOVERNANCE
G
lobalisation is upon us. The economics of the world are driven by powerful ideologies mandating productivity and growth at all costs. As this ideology spells itself out, nations that do not play the new global game with ruthless—even merciless—dexterity are to be punished by sanctions, crisis and failure. Using the vehicle of the global trade treaties such as the comprehensive agreement establishing the World Trade Organization (WTO), the economies of the world are sought to be prised open. This has not been done in a fair manner to achieve fair results. The ‘developed’ or ‘richer’ nations which live in relative luxury have fashioned a global economy to further their own interests. Anxious to conquer the consumer markets of all nations, they want to bring down all or any barriers to trade in goods to protect ∗ The complete article is available in Social Scientist, Vol. 34/Nos 1–2, Jan-Feb 2006.
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vulnerable aspects of their own economies. No less anxious that no part of the global economy should be exempt from their onslaught, the global economy has been opened up for trade, investments, services and intellectual property in ways that affect health, food and employment amongst the poorer nations. The ‘developing’ and ‘underdeveloped’ nations need capital for investment, technology for development and protective barriers for self protection. In all this, the poorer nations have been driven into relentlessly hard bargains—being given little choice because of their weak bargaining power. Perhaps, the results might have been different, if the poorer nations had openly and effectively conspired to act collectively. But that too has been preempted by divisions between the ruling classes of these poorer nations—with predators of the world uniting in their cause to conquer as much of the world that could fall into their competitive share. No doubt, an expanding global economy will bring considerable benefits to many—entrepreneurs and the salaried alike. But it will also place a vast number of people at risk—as, indeed, the environment and the natural resources of the world. In this unequal battle, the disadvantaged—both within and outside the mainstream economies of the world—will have to wage many national and global struggles for sustenance, self protection and social, political and economic justice. The question is whether this ‘struggle’ will be permitted—and, if so, under circumstances and to what extent? The arguments in this regard are not just over making important but mundane adjustments in the emerging pattern of things. The real argument is over the politics of a predatory free market ideology in which all the nations of the world are sought to be enmeshed; and which alone is projected as the current saviour of the world. The broad band vehicles of this ideology are: (a) the free market economy (b) political human rights-based democracy and (c) a system of the rule of law based on flexible notions of justice. But what are the priorities if these goals collide and oppose each other—as they are bound to? As it happens, these goals are malleable to suit the occasion to which they are applied. Led by America, the richer nations play games with these goals while ensuring relative primacy to predatory free market objectives. Any initiative that furthers this objective is justified. Any war which clears the way for ‘free market’ forces is regarded as a just war. In this, the script of the concept of a just war (originally designed for colonial expansion) has been broadly re-worked.
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World wars have been waged to protect imperial domain. Cold wars have been fought for ideological control and influence. In the unipolar world following the collapse of the Soviet Union, America has assumed charge of the globe’s destiny claiming to act for “truth, Justice and the American way of life”. Over the years, its record has been abysmal. Itself the product of a vicious and uncompromising settler colonialism, it has fought ‘no-holds’ barred campaigns to defend its interests—however unreasonable or inequitable for others. Following the dropping of the atom bomb on Japan, it has fought overt and covert wars that would make even the worst so-called terrorist nations flush with embarrassment. Set back by its humiliating defeat in Vietnam, it pursued a cowardly policy of sending people of or her nations to fight its wars. The CIA’s wars in Iran, Laos, sub-Saharan Africa, the Middle East, South Asia and the Central and South Americas cease to bewilder if they are understood—as they should be—as crude expressions of imperial power unabashed by exposures of hypocrisy, cruelty, revenge and terrorism. Now claiming to be the policeman of the world, it has suborned the United Nations in its forays in Afghanistan and Iraq. This is supposedly in defence of the free and—perforce—the free market world and to contain the alleged cultural jihad of Islam amidst an imaginary clash of civilizations. While using policy of terrorism to make the world safe for human rights and democracy, America claims hegemonic control of the world, its resources, people and markets. The terms ‘human rights’ and ‘democracy’ cannot be divorced from the hidden agendas for which they have been used. America and the West’s misuse of the philosophy of human rights merits as much documentation as its protective uses. Yet, it is the architecture of human rights that cannot elude critical attention. In their internal configurations human rights are structured to give priority to ‘voice’ over ‘well being’. Civil and political rights hedged in by limitations have priority over social and economic rights which are attainable only if the surpluses of a free market economy permit this. Vast differentiations are built into human rights perceptions within and across nations. Not unlike the Roman Empire, implicit distinctions are made between the rules, laws and human rights perceptions for the Empire’s own people (ius civille) and for others (ius gentium). Opportunities in the land of the ‘free’ are restricted through immigration walls for those within the nation—and even then differentially with
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discriminating results. Conversely, predator economics (relatively empty of real and comprehensive human rights notions except to act on the basis of expediency or necessity when need be and to make marginal concessions to welfare) permits the conquest of the world. For legitimating, rhetoric and reality are improvised disproportionately. All this should not surprise us, but does warn us to look more discerningly to consider that what is, is and what is not, is not. We stray somewhat from the subject of this essay but it is not entirely irrelevant to locate the concerns of struggle, protest and free speech within the wider context of the powerful forces of ideology and predatory interests that empower and engine the global economy. To fight against the new ‘gods’ is heresy—but it is not called that. The right to free speech cannot be wished away. But it is easier to project those who dissent as enemies of the divine goals of governance which are as characterised as the pursuit of productivity, growth and development at all costs. In this scheme of things a picture is created that protestors subvert law and order, dissenters undermine governance and strikers wreck the economy. Those forced into struggle for self respect and a just cause are portrayed as terrorists. This is not always done directly but in the use of language and images that insidiously enter the popular imagination in ways that are both coarse and subtle. In this scenario, the question is what is the role of the working classes, the oppressed and their allies, amidst all the divisions that they are heir to? It may be important to make a distinction between the ‘politics of governance’ and the ‘politics of struggle’. The ‘politics of governance’ is defined by what our rulers are prepared to permit. It is imposed from above and written into texts, counter texts, laws and the constitution to set the limits to free speech and protest to the extent to which political governance finds convenient and tolerable. The lines between convenience and tolerability shifts as the ideologies of the legal system write and re-write their script in the annals of the legislatures, the administration and the judiciary. The ‘politics of struggle’ are part of a quest for justice which arises from society. When the ‘politics of governance’ interrogates the ‘politic of struggle’, the former seeks to recast the latter in its image. Accordingly, those who are part of the ‘politics of struggle’ are warned that they must conform to the permissible limits of the ‘politics of governance’. If they do not do so, they break the law to be portrayed as disruptive elements in an increasingly, ‘terrorist society’. It is this interface between the ‘politics of struggle’
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and the ‘politics of governance’ that has dominated the concerns of working class struggles over the past two hundred odd years. The law and ‘politics of protest and part of the politics of governance’. The law and politics of protest are part of the ‘politics of governance’. The forces of governance demand that struggle cannot be permitted to hurt those who have a greater vested interest and control over governance. It must be lodged within the permissible limits prescribed for protest. In lieu of these limitations on protest, those who struggle are directed to the ‘market place of ideas’ as if the latter is openended and free for all. Would that were so, but it is not. The market place of ideas is as crowded as any other with its own subversions and preferences. Nor is it wholly helpful to speak of “argumentative” traditions amongst people. Arguments, too, are locked into position by concept of ‘status’ and ‘power’ within which they must be critically understood. No system can be totally and awkwardly coercive and may provide some hope to the worst off. Each struggle must determine how, where and to what extent a struggle is to be located within or without the legal system. This is only partly a strategic decision—but more deeply, it engages the very basis of modern and, perforce, post modern governance. Over the last few centuries, powerful political theories emanating from Europe and the West subordinated civil society (which was protected as necessarily uncivil and unruly) to Political society which in turn is disciplined by its own rules of varying intensity and significance. This crushed civil society and its discontents into place. Social struggles born out of civil society are delegitimatcd or illegitimated depending on whether they conform to the norms prescribed for legal protests. Civil discontenters have to raise queries and find answers within governance in the space provided for them and not outside it. The new ideology of governance was anointed as progress through productivity, development and growth-whilst the custodians of governance fought for advantageous coital positions within the all too flexible framework of human rights-based democracies. But whoever won could not ignore the ‘politics of struggle’ which challenged governance for just results. We are concerned here, with the interface between the struggle of the working class and others and governance as part of a major confrontation between the ‘politics of struggle’ emanating from people
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and the ‘politics of governance’ through which those who govern seek to discipline those who are governed.
II. WHAT
IS A
STRIKE?
The relatively simple question “what is a strike” attracts complicated answers. No lexicon can conjure the images that the word ‘strike’ conjures in employers and workers alike. For workers, the ‘strike’ was part of the heroic struggles of the working classes in England and elsewhere, which was forged into a weapon of resistance to prevent the exploitation of workers and to achieve just results for them. For employers—backed by the State machinery—the strike was something intrinsically unworthy, subversive and evil; and a conspiracy contrary to the law. These divergent meanings were not academic differences but fought out in the battlefields of industrial strife. These divergences grew out of the history of industrial relations for the last two hundred years or so and have a continuing relevance today that affects peoples’ attitudes, law, policy and decision making. This is, perhaps, illustrated by two contemporary but contrasting examples of statements of attitude by judges of the Supreme Court of India. In the Tamil Nadu Civil Servants Strike Case (2005), we find all irritable Supreme Court finding fault with the very concept of a strike and its abuses. Justice Shah (for justice Lakshmanan and himself ) reminded the nation that the constitution as interpreted by the Supreme Court did not guarantee a protected fundamental right to strike and went on to remonstrate. There is no moral or equitable justification to go on strike: Apart from statutory rights, government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, In a democratic welfare State, they have to resort to the machinery provided under different statutory, provisions for redressal of their grievances. Strike as a weapon is mostly, misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, the entire educational system suffers; many students are prevented from appearing in their exams which ultimately affects their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by
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employees of transport services, entire movement of the society comes to a standstill: business is adversely affected and a number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among the public against those who are on strike. (emphasis in original)
This view has now acquired an even more insistent edge in the advent of globalization which prizes growth over social justice. A contrasting image of the concept of a strike perceived may be found in the Trade Fair Authority of India Case (1989), where the Supreme Court had to decide on the legality of the disciplinary action taken by the Trade Authority against strikers who were pressing long outstanding demands for the revision of their wages, the regularization of jobs and housing facilities. Led, perhaps by Justice Shetty, Justice Ahmadi writing for both of them wrote: The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights to oil trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpiece of labour. The strength of a trade union depends on it membership. Therefore; trade unions with sufficient membership strength are able to bargain more effectively with the management. (This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration). There are different modes of demonstrations, e.g., go-slow, sit-inwork-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. (The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognized by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognized as a mode of redress for resolving the grievances of workers). But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. These are to be found in... in the Industrial Dispute Act, 1947.
These observations in their own guarded way give due recognition to the past struggles of the workers through trade Unions, the necessity of these struggles and the legal framework within which they must be located. These two ‘contrasting’ attitudes reflect different trajectories of decision making at, and in, different times. Not too much can be made of the fact that the observations of 1989 were made when India had not quite embraced the mantra of globalization. Nor indeed can we read too much of the advent of globalization into Justice Shah’s
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anti-strike comments in the judgment of 2005. These latter comments represent a pro-management and class bias. But, even though these two judgements contrast mightily in their attitudes to trade unions and strikes, there is a connecting thread to them. Earlier, we have distinguished between the ‘politics of struggle’ which represents how the workers challenged their masters and rulers and the ‘politics of governance’ by which struggle is sought to be absorbed, relocated and redefined within the parameters of the politics of protest permissible by law and governance. Even if attitudinally different, both these judicial points of view reiterate the need for worker’s struggles being fought within strictly defined legal frameworks even if judges, while responding to any particular ‘struggle’, may balance equities in different ways depending on whether they are generally biased in favour of workers or management as the case may be. Even the most radical of judges in India have generally accepted that the politics of workers struggle must be organized within the framework of the permissible protest and adjudication dictated by legislative governance. It is precisely this which makes the ‘right to strike’ all the more important. India’s modern law system traces its roots to the British common law system which transplanted into India many of the pluses and minuses of prejudice ingrained in it. This is no less true of the English legal system’s attitude and approach to strikes. Scarred by fears from the French revolution and anxious to usher in industrialism by reposing control firmly with the state machinery to support management, English law pointed its weaponry to prevent workers from coming together and making demands to challenge either management or governance. This story has been told often enough but merits recapitulation. The story of the “law’s” antipathy to trade unions had deep roots. A system of regulated wages had been in vogue since 1349 to continue till the early part of the nineteenth century. Socially and politically, the only hope of Justice for the poor and workers was through collective protest. But such an idea was not permitted to be countenanced. As early as 1721, the journeyman Tailors of Cambridge were found guilty of what appears to be the common law of conspiracy. Individual claims were, perhaps, permissible if not disorderly, but any collectivity suffered the penal consequences of the law because even the act of coming together was regarded as a subversive conspiracy. This is plainly
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articulated in the words of Justice Grode in 1796 to the effect: “As in the case of journeyman conspiring to raise their wages, each may insist on raising his wages if he can, but if several meet for the same purpose it is illegal and the politics may be indicted for conspiracy”. It could not have been more simply or devastatingly put. In 1799–80 the Combination Acts made it criminal to enter into any agreement or attendance at meetings or any other combination for advancing wages, altering hours of work or analogous conditions of service. Between the passing of the Combination Act and their repeal in 1828, combinations of labour were persecuted and prosecuted. But while some forms of collective action came to be permitted in 1825, their existence and scope of operation were strictly limited to fashioning agreements ‘for hours of work and wages whilst placing an embargo on ‘threats’, ‘molestations’, ‘intimidations’ and ‘obstructions’. The judiciary enlarged what the legislature may have deliberately obfuscated. In 1832, a threat to strike was treated as molestation and criminally liable. In the famous Tolpuddle Martyrs in 1834, six labourers from Dorchester were sentenced to seven years of transportation for administering an ‘unlawful’ oath to stand by each other. In the Tinplate workers case (1851), workers were convicted of molestation and obstruction for pushing a strike protesting their getting less than average rates. A strike was permissible but not one which ‘molested, intimidated or annoyed’. And this could mean anything. In 1867 a striking example suggests that this extended to abusive language and gestures but also anything “calculated to have a deterring effect on the minds of ordinary persons, by exposing them to have their motions watched and to encounter black looks”. Despite some statutory mitigation in 1859, judicial attitudes against “misguided and misled workman” continued. Following the Royal Commission of 1867 and changes in the political balance of power, the Trade Union Act of 1871 gave the ‘unions’ legal status but did not wholly absolve the union’s activity from civil actions or criminal liability. The attitude of the judges remained—explicated in 1872 to speak of union activity as “an unjustifiable annoyance and the masters in the conduct of their business”. Pressure of working class opinion led to the legislation in 1875 which gave more concrete shape to absolving unions from criminal liability for actions in contemplation or furtherance of a dispute. As a distinguished legal writer (to whom the above historical account is indebted) put it: “Only after the apparent ‘immunity’ for conspiracy
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in 1875 can we begin to speak of a legal right to strike”. It is these struggles which led to Indian legislation being fashioned to recognize, even if not wholly respect, workers’ struggles in India. But all was not over. While the English Trade Union Act 1871 recognized the status of unions, the protection to their working and activity continued in a state of ambiguous vulnerability. Many cases and the Royal Commission of 1894 followed. The deep sense of foreboding was affirmed in the Taff vale case (1901) where the House of Lords decided that the unions were liable in test for the damages and loss to the extent of £ 23,000 plus costs. Although Parliament reversed this decision by legislation in 1906. In yet another case of 1901, the Lords ruled that pressure on a customer in furtherance of a dispute with a supplier gave rise to liability because the consequential effect was to injure the interests of the employer. The story was still not over. As late as 1964, the House of Lords in the BOAC case created liability for damages for civil intimidation resulting in the removal of a worker in a ‘closed shop’ situation. Once again Parliament intervened by legislature in 1965. These incidents acquired a legendary status in the records of working class legal history. They serve as an example of the class bias of the law and of judges; and led to the overwhelming and continuing distrust of the labour movement in the ‘law’ and ‘judicial processes’. The travails of the savage experience of the working class movement at the hands of the common law is not entirely without relevance to India, which recognizes the continuing application of the common law in India but relocates it within the conspectus and discipline of the Constitution. The possibility that the unions and workers might be subject to civil liability in India arose in the Rohtas Industries case (1976) where an arbitrator adjudicating on a strike denied workers wages for the strike period but awarded Rs 80,000 compensation from the workers for the loss they caused to management as well as to pay the costs of litigation- Justice Krishna Iyer (for Justices Chandrachud and A C Gupta) placed English laissez faire in its context as unsuitable for India: These decisions of the English courts are a response to the societal requirements of the industrial civilization of 19th century England. Trade and Industry on the laissez faire doctrine flourished and the law of torts was shaped to serve the economic interests of the trading and industrial community. Political philosophy and economic necessity of the dominant class animate legal theory.
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Naturally, the British law in this area protected business from the operations of a combination of men, including workers, in certain circumstances. Whatever the merits of the norms, violation of which constituted ‘conspiracy’ in English law, it is a problem for creative Indian Jurisprudence to consider, detached from Anglophonic inclination, how far a mere combination of men working for furthering certain objectives can be prohibited as in tort, according to the Indian value system. Our Constitution guarantees the right to form associations, not for gregarious pleasure, but to fight effectively for the redressal of grievances. Our Constitution is sensitive to workers’ rights. Our story of freedom and social emancipation led by the Father of the Nation has employed, from the highest of motives, combined action to resist evil and to right wrong even if it meant loss of business profits for the liquor vendor, the brothel-keeper and the foreign-cloth dealer. Without expatiating on these seminal factors, we may observe that English history, political theory and life style being different from Indian conditions replete with organized boycotts and mass satyagrahas, we cannot incorporate English torts without any adaptation into Indian law. A tort transplant into social organism is as complex and careful an operation as a heart-transplant into an individual organism, law being life’s instrumentality and rejection of exotics being a natural tendency. Here, judges tire sociological surgeons.
Whether all judges can be trusted with the task of being or becoming sociological surgeons can only be accepted with an unalloyed sense of disbelief. However, what is relevant for our purposes is that an Indian arbitrator did seek to import to Indian law common law notions making unions and workers liable for the business and other losses of industry due to a strike. As late as 1976, it became necessary for the India’s Supreme Court to set at rest these historical heresies. We may as well suggest that to silence possible mischief flowing from the confused state of the law and remembering how dangerous it would be if long, protracted, but technically illegal strikes were to be followed by claims by managements for compensation for loss of profits, a legislative reform and restatement of the law were undertaken at a time when the State is anxious for industrial harmony consistent with workers’ welfare. This rather longish discussion has become necessary because the problem is serious and sensitive and the law, is somewhat slippery even in England.
The Court did, however, place the concept of a ‘strike’ firmly within the framework of India’s industrial dispute legislation. By and large, Justice Krishna Iyer was right in putting a quietus to even the remote possibility that the prejudices of the common law would somehow creep back into Indian law to make ‘unions’ liable in damages for the losses caused to management due to strikes.
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Technically, Indian law continues to recognize those aspects of the common law which pre-independence British Indian courts would have been prepared to recognize. Even after 1950, the British law of tort continues to be legally enforceable in India even though it has never been codified by the legislature. While it is unlikely that Indian courts would target the civil law of conspiracy against trade unions to cripple them financially, it was necessary to put a lid on such a possibility. During the nineteenth century, the English were particularly concerned to make sure that British Indian law was strategically poised to prevent both unionization and strikes. The British were themselves setting up textile and other mills. In 1913, the Fort Gloucester Cotton Mill was built in Calcutta. Tea Companies were incorporated in Assam. The railway boom resulted in railway corporates being established. Collieries in Bihar and Bengal were incorporated as businesses. Jute and cotton mills in Bengal and Bombay changed the pattern of social and economic life. In a piquant recall of possible history, it is said that the first strike in India was of the palanquin bearers of Calcutta in 1827; but, as was rightly remarked “…we do not know anything more about it”. It is estimated that after the strike of the Howrah Railway Station workers in 1862, strikes proliferated. But the British had taken pre-emptive steps to enact various legislations. To begin with, Macaulay’s India Penal Code of 1860 contained provisions (Section 490–3) specifically criminalizing breach of contract. The justification for this in the Second Report on the Indian Penal Code was that whilst civil action would yield damages from the well off, breaches of contract were “very likely to be committed by persons from whom it was exceedingly improbable that any damages can be obtained”. This obviously meant the poor and, indubitably, workers, who had therefore to be coerced into submission by the criminal law. The British Raj also simultaneously enacted the Workmen’s Breach of Contract Act 1859 whereby workers who took wages and willfully neglected to fulfill their labour contract would be subjected to magisterial punishments in addition to any other remedies which may be available against them through the common law. This pattern was further reinforced by the Workmen Disputes Act 1860. When these matters came up for consideration before the Courts, they were generally relentless in their attitude to workers. In a decision of the Madras High Court (1865), the High Court was in no doubt that a
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workman who had been to prison nevertheless had to repay his debt to his employer. Contracts were fashioned in terms of the Act which had to be rigorously enforced. The rationale for this was given by the Allahabad High Court in 1889: I need not point out the importance of statutory provisions of this kind, and their being enforced in large commercial centres like Kanpore, whereby combined action on the part of persons employed in large commercial establishments there, the proprietors of those establishments might be placed not only at very grave and sudden inconvenience, but very serious pecuniary loss.
These provisions were akin to slavery. Their effect was that those persons who contracted with employers were simply bonded to them—liable to civil damages and prison in addition to expensive persecutory litigation which neither the workers nor their unions were equipped to handle. In time, these statutes became somewhat irrelevant. The Indian Penal Code provisions criminalizing breach of contract were repealed in 1898 and the Workmen Breach of Contract Act which was strengthened in 1881 and repealed in 1926. But for the period for which they remained in force, they unleashed a legal terrorism not dissimilar to but worse than the legal terrorism unleashed against workers in Britain. Britain wanted to exploit India’s ample resources and cheap labour. In order to ensure labour supply to the tea gardens of Assam, the Transport of Native Labourer Act 1863 (as amended in 1865, 1870 and 1873) provided for punishment for refusing recruitment and further punishment for desertion. This was ‘indentured’ labour—less politely slavery. The momentum for such enslavement did not stop. The Inland Emigration Act 1892 continued the onslaught within India; and such enslavement also led to massive enforced migrations to the British colonies in Africa, the West Indies, Fiji and elsewhere. As India’s political movement matured to these indignities, there were protests resulting in the modification and recall of these provisions. No doubt, some mitigating legislation was passed in the form of Factories Act 1881 which initially concerned itself more with setting working hours for children between the ages of 7 and 12. These were varied to later result in changes which in 1901 also fixed working hours for adults. Later, many welfare legislations were passed in post independent India.
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But, our present concerns are about the right to unionize, demonstrate, protest and strike. As unionization began, the Unions were in no doubt that collectivities of workmen were necessary. In a powerful Manifesto of the All India Trade Union Congress of 1920, directed against “professional politicians... Simla bureaucrats (and)... mill owning plutocrats”, it was stated: Workers of India! There is only one thing for you to do. You must realize your unity. You must solidify your organizations Do not look for salvation to the Factories Act. The law cannot give you unity. The law cannot create in you the spirit of brotherhood. That must be your own work. Spoilation of the worker is the cry of the capitalists in field and factory. Let unity and brotherhood of man be your watch-words. Your salvation lies in the strength of your organizations; cling fast to them. Cast all weakness from you and you will surely tread the path to power and freedom.
The result of these campaigns was the Trade Union Act 1926 and Trade Disputes Act 1929. The former recognized the trade union as a collectivity; and the latter created a framework for dispute settlement. Clearly, the Royal Commission on Labour in India, appointed in 1929, did not find the dispute settlement provisions satisfactory for industrial peace. Nor was it entirely satisfactory for labour. But, it was this framework which eventually, with modifications led to the Industrial Disputes Act 1947 which has remained the basis for negotiation, conciliation, settlement and adjudication in India. This is only a skeletal and derivative rather than an original account of the travails of unionization and the right to strike. It followed the pattern of the common law. But, in India, British rulers had little doubt that they could simply enact legislation to petrify workers, force them into indentured slavery and coerce them into accepting what management had to offer on the latter’s own terms. It was only when the unions in England and India fought back with political support that the labour legislation relaxed its oppressive hold. But, as it happens, the ‘politics of struggle’ had to succumb to the ‘politics of governance’ provided by the discipline of the law. This past history is important to us. It is trajectories of history of this nature that has left unions, rural and urban workers and left wing activists and intellectuals alike to pronounce on the ‘class bias’ of the law and seriously question whether workers’ struggles can be located within the framework of the law as it stands. {…}
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26 Democracy and Right to Food∗ JEAN DRÈZE
It is widely accepted that the right to food forms one of the basic economic and social rights essential to achieve ‘economic democracy’ in India. This right is nowhere near realisation in India, where undernutrition levels are among the lowest in the world. The right to food moreover, does not easily translate into well-defined entitlements and responsibilities. Though serious difficulties are involved in making the right to food fully justiciable, new interventions are possible in at least three ways—through legal action, through democratic practice and through changing public perceptions. More importantly, the right to food needs to be linked to other economic and social rights relating to education, work, health and information, which together hold the promise of radical change in public priorities and democratic politics.
T
he right to food can be seen from at least three different perspectives. One is the perspective of the Indian Constitution, especially, the Directive Principles of State Policy. Secondly, we can refer to international declarations and conventions on this matter, starting with the Universal Declaration of Human Rights. Thirdly, it is possible to argue for the right to food as a moral and social right, independently of all these documents. Indeed, it is a basic premise of the human rights movement that all human beings have some fundamental rights, whether or not these rights are already incorporated in national or international law. To illustrate, one can
∗ This article has earlier been published in Economic and Political Weekly, 24 April, 2004.
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argue that a child has a right to protection from physical punishment at school, whether or not physical punishment is legally permissible. These three perspectives, of course, are not mutually exclusive. In fact, they complement each other. In this paper, however, I shall concentrate on the first approach, and particularly on the right to food as one of the economic and social rights affirmed in the Directive Principles.1 There are two reasons for this. One is that this approach appears to me to be particularly coherent and far-reaching. The other reason is that it is important to place the right to food in the larger context of the need to revive the Directive Principles, and their underlying vision of radical social change. The Directive Principles are chiefly due to B R Ambedkar, and they build on his visionary conception of democracy. This vision, in turn, was intimately related to his notion of the good society as a society based on ‘liberty, equality and fraternity’. Democracy, as he saw it, was both the end and the means of this ideal. It was the end because he ultimately considered democracy itself as synonymous with the realisation of liberty, equality and fraternity. At the same time, democracy was also the means through which this ideal was to be attained. Indeed, in Ambedkar’s perspective, democracy was intrinsically geared to social transformation and human progress. In one of the most inspiring definitions of the term, he described democracy as “a form and method of government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed”.2 For this to happen, it was essential to link political democracy with economic and social democracy. This was one of the main objectives of the Indian Constitution, and particularly of the Directive Principles. Ambedkar himself put it as follows: Our object in framing the Constitution is really two-fold: (i) To lay down the form of political democracy, and (ii) To lay down that our ideal is economic democracy and also to prescribe that every government whatever is in power shall strive to bring about economic democracy. The Directive Principles have a great value, for they lay down that our ideal is economic democracy.3
This revolutionary conception of democracy, however, fell into oblivion soon after independence. Indian democracy essentially went the same way as parliamentary democracy in Europe, which Ambedkar considered as ‘a name and a farce’.4 Fifty-five years down the road, economic democracy has been quietly buried as a principle of public policy, and even political democracy is not exactly in the pink of health.
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THE NUTRITION EMERGENCY
IN INDIA
With this background, let me turn to the question of food. On this, the first point to note is the catastrophic nature of the nutritional situation in India. The second National Family Health Survey (1998–99) provides ample evidence of the problem. To illustrate, according to this survey, 47 per cent of all Indian children are undernourished, 52 per cent of all adult women are anaemic, and 36 per cent have a body mass index (BMI) below the cut-off of 18.5 commonly associated with chronic energy deficiency.5 These nutritional deficiencies have devastating consequences for the well-being and future of the Indian people. To start with, hunger and undernutrition are intrinsic deprivations and severely diminish the quality of life. Further, undernutrition is associated with reduced learning abilities, greater exposure to disease, and other impairments of individual and social opportunities. In international perspective, India is one of the most undernourished countries in the world. According to the latest Human Development Report, only two countries (Bangladesh and Nepal) have a higher proportion of undernourished children than India, and only two countries (Bangladesh and Ethiopia) have a higher proportion of infants with low birth weight.6 Even after taking into account various gaps and inaccuracies in the international data, there is another indication here that undernutrition levels in India are extremely high. The second National Family Health Survey contains a wealth of further evidence on different aspects of the nutrition situation in India. Consumption data, for instance, bring out the frugal nature of food intakes for the majority of the population. Only 55 per cent of adult women in India consume milk or curd at least once a week, only 33 per cent eat fruits at least once a week, and 28 per cent get an egg. The evidence on child morbidity is no less sobering. Among children under the age of three, 30 per cent had fever during the two weeks preceding the survey, 19 per cent had diarrhoea, and another 19 per cent had symptoms of acute respiratory infection.7 Even after allowing for some overlap between these different groups, this suggests that at least half of all Indian children below three suffer from one of these conditions within any given interval of two weeks. All the figures cited so far are national averages. It goes without saying that the situation gets worse—far worse—as we consider the poorer
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Democracy and Right to Food FIGURE 26.1
Average Weight of Indian Children at Different Ages
Source: Alessandro Tarozzi, unpublished analysis of National Family Health Survey (NFHS) data. Note: The graph relates to boys and girls combined, in rural and urban areas combined.
states (e.g., Jharkhand, Chhattisgarh, Orissa), and the more deprived regions within these poorer states (e.g., Palamau in Jharkhand, Sarguja in Chhattisgarh, Kalahandi in Orissa), not to speak of the poorer communities within these deprived regions. Among the sahariyas, musahars, kols, bhuiyas and other marginalised communities, the nutritional situation can only be described as a permanent emergency. To illustrate, in a recent survey of 21 randomly-selected households in a bhuiya hamlet of Palamau district in Jharkhand, 20 reported that they had to ‘skip meals regularly’.8 At the time of the survey, most of the households in this hamlet survived on ‘chakora’ (a local spinach) and gheti (a wild root), supplemented with some broken rice on lucky days. Some had nothing to eat but plain chakora. Another disturbing aspect of the nutrition situation in India is that it shows little sign of major improvement over time. There is evidence of a steady decline of extreme hunger and severe undernutrition.9 But the general progress of anthropometric indicators (e.g., the heights and weights of Indian children) is very slow. The point is illustrated in
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figure, which shows the average weight of Indian children at different ages in 1992–93 and 1998–99, based on the first and second rounds of the National Family Health Survey. There is some improvement, but it is not exactly dramatic. Based on the weight-for-age criterion, the proportion of undernourished children declined from 53 per cent in 1992–93 to 47 per cent in 1998–99.10 If the child undernourishment figures continue to decline at this sluggish rate of 1 percentage point per year, it will take another 40 years before India achieves nutrition levels similar to those of China today. The comparison between the two surveys also points to the growth of nutritional inequality in the 1990s: anthropometric indicators improved more for urban areas than for rural areas, and more for boys than for girls. For instance, the proportion of undernourished children (based on weight-for-age criteria) declined by 7 percentage points for urban boys between 1992–93 and 1998–99, but only 3 percentage points for rural girls. In other words, the time required for rural Indian girls to ‘catch up’ with their Chinese counterparts if present rates of improvement continue is not 40 years, but 80 years or so. These patterns are consistent with independent evidence of a sharp increase in economic inequality in the 1990s.11
DEMOCRACY
AND
SOCIAL RIGHTS
Perhaps the most startling aspect of the nutrition situation in India is that there is virtually no discussion of it, outside specialized circles. Chronic hunger rarely figures in public debates and electoral politics. To illustrate, consider the coverage of nutrition issues in the mainstream media. The Hindu, one of the finest English-medium dailies, publishes two opinion articles every day on its editorial page. In a recent count of these opinion articles over a period of six months (January to June 2000), it was found that health, nutrition, education, poverty, gender, human rights and related social issues combined accounted for barely 30 out of 300 articles. Among these 300 articles, not one dealt with health or nutrition.12 As this simple exercise illustrates, the basic needs of the Indian people count for very little in public debates and democratic politics, and nutrition issues are particularly out of focus.
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This neglect of social issues in general, and of chronic hunger in particular, is often attributed to ‘lack of political will’. This diagnosis is plausible enough, but it does not take us very far since it begs the question as to why there is no political will in the first place. In a democracy, political will is an outcome of democratic politics. Seen in this light, the deafening silence surrounding hunger and nutrition issues in India is an invitation to reflect on the nature and limitations of Indian democracy. As far as democratic institutions are concerned, India is doing reasonably well in historical and international perspective. To illustrate, in comparison with the US (the self-proclaimed torchbearer of democracy in the contemporary world), India fares much better in many respects. For instance, India has much higher voter turnout rates (the US are near the rock bottom of the international scale in that respect); it has more extensive provisions for the political representation of socially disadvantaged groups; and it is less vulnerable to the influence of ‘big money’ in electoral politics. There is also far greater pluralism in Indian than in US politics. Dozens of political parties, from extreme left to extreme right, are represented in India’s lower house, in contrast with two parties (with virtually identical political programmes) in the US. Even the quality of the Indian press is much higher, in many respects, than that of its counterpart in the US. The comparison is not entirely to India’s advantage (for instance, the US fare better in terms of the freedom of information), and there is, of course, plenty of scope for improving democratic institutions in India. Nevertheless, by contemporary world standards, Indian democracy appears in a reasonably good light as far as its institutional foundations are concerned. Having said this, Indian democracy has one minor flaw, namely that most people are unable to participate in it due to economic insecurity, lack of education, social discrimination and other forms of disempowerment. Voter turnout rates may be reasonably high (about 60 per cent for parliamentary elections), but informed participation in democratic institutions on a sustained basis is confined to a tiny minority. And even voting is a very limited form of democratic participation when most people are unable to distinguish clearly between the different political parties and their respective programmes.13 In short, Indian democracy is trapped in a vicious circle of exclusion and elitism. Because underprivileged sections of the population
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are excluded from active participation in democratic politics, their aspirations and priorities are not reflected in public policy. The elitist orientation of public policy, in turn, perpetuates the deprivations (poverty, hunger, illiteracy, discrimination, etc.) that disempower people and prevent them from participating in democratic politics. The root of the problem was identified quite clearly by B R Ambedkar in the context of his argument for linking political democracy with economic and social democracy. “On the January 26, 1950,” he said, “we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality.” The contradiction is still with us today, and in some respects at least, the problem is even intensifying at this time of growing inequality and elitism. India is in some danger of becoming a “business driven society”, to use Noam Chomsky’s telling characterization of US democracy.14 It is in this context that there is an urgent need to revive the concern with economic and social rights expressed in the Directive Principles of the Constitution, including the right to food. Indeed, as mentioned earlier, the main object of the Directive Principles was precisely to lay the foundations of “economic and social democracy”.15
TWO ILLUSTRATIONS An example or two may help to convey the potential empowerment value of economic and social rights. One interesting example is the right to education. Until quite recently, the right to education was out of focus in education policy. For instance, the issue is not mentioned in the National Education Policy of 1986. The basic assumption in those days was that large proportions of children were beyond the pale of the schooling system, and that this situation would continue to prevail for many years. Since then, however, there has been a healthy revival of public concern for the right to education. Today, the notion that every child has a fundamental right to elementary education has gained wide acceptance. For instance, if a village does not have a school, the case for providing one immediately does not need to be made—it is taken for granted. And even children belonging to highly disadvantaged families or communities, such as migrant labourers or
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(so-called) primitive tribes, are widely considered to have an inalienable right to elementary education. This broad recognition of elementary education as a fundamental right of every child (recently incorporated in the Constitution) has contributed to the relatively rapid expansion of schooling facilities and school participation in the 1990s.16 This does not mean that spectacular progress has been made in realising the right to education. Indeed, there are also tendencies on the other side (i.e., tendencies inimical to the right to education), such as the crisis of state finances and intense hostility to the ‘welfare state’ in the corridors of power. Some recent developments, such as the growing reliance on low-quality, ‘second-track’ schooling facilities to raise enrolment figures, can even be seen as an attack on the fundamental right to education.17 Nevertheless, it is interesting that the reach of the schooling system has expanded so fast in a period of structural adjustment and general disengagement of the state. The growing recognition of elementary education as a fundamental right of every child has played a part in this achievement. Also, the wide acceptance of elementary education as a fundamental right of every child has given education activists a powerful foothold to resist any attempt to dilute the constitutional commitment to free and compulsory education until the age of 14. There is an instructive contrast here with the corresponding situation in the field of health care. Unlike elementary education, health care is yet to be widely accepted as a basic right of all Indian citizens.18 This ambiguity has facilitated the continuation if not intensification of state abdication in this field in the 1990s. Public expenditure on health has declined as a proportion of GDP, from an abysmally low base (about 1 per cent).19 And the lack of any major initiative in the field of health care during the last 10 years contrasts with wide-ranging innovations in the field of elementary education. Correspondingly, the pattern of accelerated progress in educational achievements in the 1990s does not apply to health indicators. In fact, there have been major setbacks, such as the slowdown of infant mortality decline, and (more recently) the reduction of child vaccination rates in some states. Another enlightening example is the right to information. Anyone who has worked in rural India is bound to be familiar with the tremendous disempowerment experienced by ordinary citizens due to lack of information and the inaccessibility of public records. Many examples can be given: some people have ration cards, but do not know what they are entitled to buy from the ration shop and at what price; others
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take bank loans without understanding the conditions of borrowing; TB patients are sent away from public health centres with cough syrups; labourers are unaware of the legal minimum wage; and so on.20 Another manifestation of the problem is corruption in public life, which thrives on secrecy and the dissimulation of information. In response to this situation, one could try a ‘case by case’ approach, in the form of addressing the problem in the specific domain where it occurs. The visionary insight of the ‘right to information movement’, however, is that the problem can also be tackled across the board, in a lasting manner, by demanding a blanket right of access to all public records at all times for all citizens.21 This led to a campaign for ‘right to information laws’, combined with efforts to enable people to use these laws. Going beyond this, the right to information movement can be seen as a step in the larger journey towards public accountability and participatory democracy. The right to information movement has already led to some concrete results. In Rajasthan, for instance, it has played a crucial role in eradicating the earlier practice of endemic ‘fudging’ of muster rolls on relief works.22 This may look like a small victory, but it is actually a significant breakthrough, which paves the way for further action in this field. Ten years ago, the suggestion that corruption in public life can be eradicated, or even substantially reduced, would have seemed very naïve. Today, there is a new sense of possibility in this respect.
THE RIGHT
TO
FOOD
The right to food is, in some ways, a more complex right than the right to education or the right to information. To start with, the entitlements and responsibilities associated with the right to food are far from obvious. In the case of, say, the right to information, some basic entitlements and responsibilities are easy to identify: every citizen has a right of access to public records (subject to specific exceptions, pertaining for instance to ‘national security’), and conversely, every civil servant has a duty to part with the relevant records under prespecified terms. If he or she refuses to do so, action can be taken. To a large extent, the right to information can therefore be translated into legal entitlements and enforced in a court of law. In other words, it is justiciable.
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In the case of the right to food, however, matters are more complicated. Broadly speaking, the right to food can be interpreted as a claim of individuals on society (starting but not ending with the state). It is an entitlement to be free from hunger, which derives from the assertion that the society has enough resources, both economic and institutional, to ensure that everyone is adequately nourished. However, difficulties arise as soon as we try to flesh out this broad definition and translate it into specific entitlements and responsibilities. The term ‘freedom from hunger’, for instance, lends itself to several interpretations: getting two square meals a day, meeting specific calorie norms, avoiding nutrition-related ailments, and so on. Ideally, the right to food should be seen as a right to ‘nutrition’, as in Article 47 of the Constitution.23 However, good nutrition itself depends in complex ways on a wide range of inputs: not just adequate food intake but also clean water, basic health care, good hygiene, and so on. Even if we confine our attention to food intake, the constituents of good nutrition are a matter of debate among nutritionists. For instance, there is some controversy about the importance of various ‘micronutrients’ for good nutrition. For all these reasons, it is hard to translate the right to food into a specific list of entitlements. Similar difficulties arise in clarifying the responsibilities associated with the right to food. The primary responsibility is surely with the state, because the state alone commands the resources (economic and institutional) required to protect everyone from hunger, and because the state is generally responsible for safeguarding constitutional rights. However, the right to food is not the responsibility of the state alone. To illustrate, suppose that I come across someone who is dying of starvation on the street. If I am able to do something about it, and if I recognize that every citizen has a right to be free from hunger, it would clearly not be right for me to wash my hands of the situation and say that it is the responsibility of the state. The fact that the state bears the primary responsibility for letting this happen does not absolve me from the duty of intervening, if I am in a position to do so. In other words, in some circumstances at least, the responsibility for protecting the right to food is a shared responsibility, involving not only the state, but also other institutions or individuals. To take another example, suppose that a girl is undernourished because she does not get a fair share of food within the family. Clearly, her right to food would be violated. But who is responsible? At some
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level, state responsibility would be involved, since the state has an overarching duty to eradicate social discrimination. But surely, the girls’ parents (or whoever controls the distribution of food within the family) would also bear a substantial part of the responsibility for this situation. Here again, there is a difficulty in apportioning responsibilities for protecting the right to food. The last example also brings out a related problem, namely, that the right to food is not always ‘justiciable’, in the sense of being enforceable in a court of law. If a girl is undernourished because of discrimination within the family, I doubt that the best response would be to take her parents to court.24 Other means of intervention would be required. It is in the light of these and related problems that legal enforcement of the Directive Principles (including the primary duty of the state to raise “the level of nutrition and the standard of living of its people”) was explicitly ruled out in the Constitution. At this point, the reader may wonder whether the right to food has any ‘teeth’ at all, if it is so difficult to define and so hard to enforce. I would argue that it does have a cutting edge, for at least three reasons. First, even if the right to food is not always justiciable, some aspects of the right to food (at the very least) are amenable to legal enforcement. This is one crucial lesson of the public interest litigation initiated by the People’s Union for Civil Liberties (Rajasthan) in April 2001 with a writ petition to the Supreme Court.25 The litigation is far from over, but some useful orders have already been passed, such as the interim order of November 28, 2001, directing all state governments to introduce cooked mid-day meals in primary schools. We can plausibly envisage that entitlements of this kind might become part of the law of the land, just as the right of access to public records has found expression in ‘right to information laws’. Indeed, this approach would be highly consistent with the scheme of things initially envisaged by the Constitution. It is often forgotten that while Article 37 explicitly states that the Directive Principles ‘shall not be enforced by any court’, it goes on to stress (i) that these principles are nevertheless ‘fundamental to the governance of the country’, and (ii) that ‘it shall be the duty of the state to apply these principles in making laws’. The application of these prescriptions to the right to food is potentially far reaching. Some good work has been done, for instance, on the possibility of introducing a ‘framework law’ that would translate a wide range of aspects of the right to food into legal provisions.26
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I submit that this approach would be more productive than the common proposal that the Directive Principles should somehow be declared “justiciable”.27 For one thing, there are serious difficulties in making the right to food fully justiciable. Much of it ultimately belongs to the domain of democratic politics rather than of legal enforcement. For another, even if the right to food is deemed fully justiciable, it will remain necessary to spell out the constructive interventions through which this right is to be protected. Leaving it to the courts to settle this issue as and when it arises would be both risky and inappropriate. The need would therefore remain for additional legislation, framed through democratic processes, clarifying how the right to food is to be realised. And this is precisely what I am advocating in the first place. The approach proposed here does not detract from the possibility of claiming the right to food in court as a corollary of the fundamental ‘right to life’ under Article 21. Indeed, this claim is one aspect of the public interest litigation initiated in April 2001 by the People’s Union for Civil Liberties. And the Supreme Court itself has already clarified on various occasions that the right to life implies the right to food.28 In some circumstances, this recognition can be invoked with good effect. Yet, the persistence of mass hunger in India more than 20 years after the Supreme Court effectively accepted the right to food as a fundamental right clearly indicates that more specific legal provisions are required. The second reason why the right to food does have a cutting edge, even when it is not enforceable in a court of law, was clearly spelt out by Ambedkar in his defence of the Directive Principles. Essentially, he argued that in a democracy, legal action is not the only means of holding the state accountable to its responsibilities. In cases where rights cannot be enforced through the courts, they can be asserted through other democratic means, based for instance on parliamentary interventions, the electoral process, the media, international solidarity, street action, or even civil disobedience.29 This process has worked relatively well with respect to one specific aspect of the right to food—the prevention of famines. As Amartya Sen has noted, in a democratic political system, allowing a famine to develop would be political suicide for the party in office. This is the main reason why every threat of famine in independent India has been boldly dealt with (at least in terms of avoiding excess mortality).
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The latest example is the drought of 2002–2003 in Rajasthan. In the absence of public intervention, drought-affected people would have perished in large numbers. With assembly elections round the corner, however, the government did not take any chances. In late June 2003, close to four million labourers were employed as relief works and related programmes in rural Rajasthan.30 This was one of the largest public employment programmes ever, in terms of the proportion of the population employed. Famine was averted, not because there is a law against it but because of other democratic safeguards.31 Outside the specific context of famine prevention (and other extreme circumstances, such as ‘starvation deaths’), democratic practice has delivered rather little, so far, in terms of holding the state accountable to its responsibility for protecting the right to food. However, this situation is not immutable. In fact, I would argue that there are vast possibilities of radical change in this field. These possibilities arise mainly from the growing participation of underprivileged groups in democratic politics, and the fact that food security is one of their main concerns. Another positive development in this context is that the tools of democratic participation are becoming more diverse over time. In his defence of the Directive Principles, Ambedkar focused on the electoral process as the principal means of holding the state accountable outside the courts. Since then, we have learnt not to expect too much from electoral competition in this respect, for reasons discussed earlier. But at the same time, we have good grounds for enhanced confidence about the possibilities of public action outside the traditional arena of electoral politics. These possibilities have already been creatively harnessed for various causes, ranging from gender equality and dalit liberation to war resistance and the defence of civil liberties. There is no reason why these initiatives should not be extended to the assertion of economic and social rights, as is already happening to some extent. The third argument for asserting the right to food is that, even when they are not enforceable in court, economic and social rights can have a profound influence on public perceptions of who is entitled to what. These perceptions, in turn, can make a concrete difference in diverse ways. For instance, in situations where the effectiveness of food security programmes depend on the vigilance of the public, perceptions of rights can matter a great deal.
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To illustrate, consider the public distribution system (PDS). One reason (among others) why the PDS is not in very good shape today is endemic corruption. Now, recent analyses indicate that the extent of corruption in the PDS is much higher in north India than in south India. In north India, about half of the grain meant for distribution to poor households through the PDS seems to end up in the black market, rising to 80 per cent in Bihar and Jharkhand. In south India, the ‘leakages’ are much smaller, to the extent that they do not show up in secondary data.32 One reason for this contrast is that people’s perceptions of their entitlements under the PDS differ radically between the two regions. In large parts of north India, poor people have very little awareness of their entitlements and how they can be enforced.33 They are sitting ducks for corrupt PDS dealers, and consider themselves lucky if they get anything at all.34 In this respect, the situation is very different in the southern region. In Tamil Nadu, for instance, even illiterate Dalit women seem to have a sharp awareness of their entitlements, and of the redressal mechanisms that are available in the event where they are cheated.35 The two factors (awareness of rights and accountability mechanisms) reinforce each other and preserve the integrity of the system. If India’s public distribution system is to be revitalised, close attention needs to be paid to the circumstances that shape people’s perceptions of their rights as well as their ability to enforce them. It is in this respect, among others, that the recent division of the rural population between ‘BPL’ and ‘APL’ households (below poverty line and above poverty line, respectively), with PDS entitlements being effectively restricted to BPL households, is so pernicious. This division undermines the notion that PDS entitlements are a matter of right, since no-one has a ‘right’ to a BPL card. It also weakens the ability of BPL households to enforce their rights, by destroying the solidarity between APL and BPL households, and sometimes even pitching one group against the other. The fact that ‘vigilance committees’, the local watchdogs of the public distribution system, often turn out to consist mainly of APL members, who have no stake in the integrity of the system, does not help either. The need of the hour is to empower disadvantaged households vis-à-vis PDS dealers, but the present targeting system goes in the opposite direction.
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MID-DAY MEALS
Jean Drèze
AND
THEIR WIDER SIGNIFICANCE
These diverse roles of the right to food can be further illustrated with reference to the issue of mid-day meals in primary schools. This is one aspect (perhaps the only aspect) of the right to food that has been significantly consolidated in India in recent years. I believe that this experience is of some significance not only from the point of view of child nutrition but also as a pointer to the scope for further action in this field. The case for providing cooked mid-day meals in primary schools is very strong. At least three arguments can be invoked in this connection. First, mid-day meals boost school attendance, especially among girls. Second, they protect children from classroom hunger and also enhance child nutrition, if the meal is nutritious. Third, mid-day meals contribute to social equity, in several ways: they teach children to share a common meal irrespective of caste and class, act as a form of income support for poor households, and provide employment opportunities to poor women. The wide-ranging personal and social benefits of mid-day meals have been well demonstrated in states that made an early start down this road, notably Tamil Nadu and Gujarat. More recent experiences in Karnataka, Rajasthan and elsewhere suggest that similar achievements are possible all over the country. In Rajasthan, for instance, girl enrolment in Class 1 jumped by nearly 20 per cent in a single year after mid-day meals were introduced.36 On November 28, 2001, the Supreme Court directed all state governments to introduce cooked mid-day meals in primary schools within six months. This interim order came up in the context of the public interest litigation mentioned earlier. Several states (notably Bihar, Jharkhand, Uttar Pradesh and West Bengal) are yet to implement this order. Nevertheless, the coverage of mid-day meal programmes is steadily expanding. Fifty million children are already covered, making this the largest nutrition programme in the world by a long margin. With adequate public pressure, another 50 million children are likely to get on board within a year or so, and the quality of mid-day meal programmes could also be radically enhanced. This would be no small achievement at a time of growing abdication of state responsibility for the well-being of Indian citizens. With this background, let me clarify how recent experience with mid-day meals illustrates the three possible roles of the right to
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food discussed earlier. To start with, this experience shows the possibility of bringing some aspects of the right to food within the ambit of legal enforcement. Some commentators are quite unhappy about the Supreme Court ‘meddling’ with policy issues such as the provision of mid-day meals in primary schools. Having witnessed the court’s deliberations at close quarters, I share some of these apprehensions.37 Yet, the interim order on mid-day meals seems quite reasonable to me, considering that we are dealing here with very basic rights of Indian children (not only the right to food but also the fundamental right to education), and that the effectiveness of mid-day meals in furthering these rights is well established. As things stand, the directive on mid-day meals is only an ‘interim order’, but there is no reason why mid-day meals should not be given permanent legal status, just as the right to work has found expression in Maharashtra’s “employment guarantee act”. Secondly, the mid-day meal story also highlights the importance of campaigning for economic and social rights outside the courts, using all democratic means available. Indeed, had the Supreme Court order on mid-day meals been allowed to take its own course, it is doubtful that it would have been implemented. In this connection, it is worth noting that on the same day (November 28, 2001), the Supreme Court also issued a similar order relating to the Integrated Child Development Services (ICDS), calling inter alia for the provision of functional anganwadis (child care centres) in ‘every habitation’. This order, however, has made no impact so far, and one reason for this is the failure to supplement the court order with active public pressure. Midday meals, by contrast, have been the focus of lively campaigns in many states during the last two years. The steady progress of mid-day meals reflects this effective combination of legal action and social action. Thirdly, midday meals provides another useful illustration of the role of economic and social rights in shaping people’s perceptions of their entitlements and enhancing their determination to get their due. Here again, the point can be appreciated by looking at contrasts between different states. In Tamil Nadu, where mid-day meals go back to 1925, and universalised in 1982, the whole arrangement is widely accepted as a basic entitlement of all children and has been internalised by all parties concerned—parents, teachers, cooks, administrators, and
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children themselves. Mid-day meals are provided on every day of the year, including holidays, and any lapse in this regard would be considered a serious matter. In (say) Chhattisgarh or Madhya Pradesh, by contrast, mid-day meals are still far from being perceived as a basic entitlement of all children. This is one reason why the implementation of mid-day meals remains quite casual in these states, to the extent that the meal often fails to materialise on a particular day, without anyone making a fuss.38 Beyond these specific lessons, there is a larger message here about the possibility of bringing democratic politics to bear on issues of hunger and nutrition. The point emerges most sharply in Tamil Nadu, where mid-day meals have been a lively political issue ever since M G Ramachandran (alias ‘MGR’) threw his weight behind this idea in the early 1980s. In fact, many observers consider this initiative as one of the pillars of MGR’s lasting popularity.39 The prominence of social development issues in Tamil Nadu politics (at least in comparison with other states) is also a major reason for the relatively good quality of nutrition and health services in general, from anganwadis to primary health centres.40 Elsewhere in India, social issues are nowhere near getting the same attention in state politics, but as argued earlier, this situation is not immutable. There are growing possibilities of public mobilisation on these issues, and the future course of the right to food depends a great deal on the extent to which these opportunities are seized.
CONCLUSION The basic argument of this paper is something like this. First, the Indian Constitution and its underlying ideas (chiefly due to Ambedkar) provide a sound framework for thinking about the right to food. In this framework, the right to food is one of the basic economic and social rights that are essential to achieve “economic democracy”, without which political democracy is at best incomplete. Indeed, there is an obvious sense in which mass hunger is fundamentally incompatible with democracy in any meaningful sense of the term. Second, the right to food is nowhere near being realised in India. In fact, undernutrition levels in India are among the highest in the world. Further, the improvement of nutrition indicators over time
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is very slow. There is also some evidence of increasing disparities in nutritional achievements (between rural and urban areas as well as between boys and girls) in the 1990s. The recent accumulation of nearly 70 million tonnes of grain against a background of widespread hunger is a particularly startling violation of the right to food. Third, the nutrition situation in India is a sort of ‘silent emergency’: little attention is paid to it in public debates and democratic politics. This illustrates a more general feature of Indian democracy—its tremendous lack of responsiveness to the needs and aspirations of the underprivileged. Against this background, economic and social rights have a crucial role to play as built-in safeguards against the elitist biases of public policy. Fifth, the right to food is a somewhat complex right that does not readily translate into well-defined entitlements and responsibilities. The scope for enforcing it through the courts can be significantly enlarged (e.g., by consolidating legal provisions for the right to food), but serious difficulties are involved in making it fully justiciable. Nevertheless, the right to food can bring new interventions within the realm of possibility in at least three different ways: through legal action, through democratic practice, and through public perceptions. Sixth, I have illustrated these different roles of the right to food with reference to the provision of mid-day meals in primary schools. It goes without saying that I am not proposing mid-day meals as an answer to India’s massive nutrition problem. Yet, this experience is a helpful illustration of the possibility of effective action in this field. Similar things can be done with respect to many other means of upholding the right to food: employment guarantee acts, the public distribution system, social security arrangements, anganwadi facilities, and land rights, among others. I end by reiterating that if the right to food is to be achieved, it needs to be linked with other economic and social rights, such as the right to education, the right to work, the right to information and the right to health. These economic and social rights complement and reinforce each other. Taken in isolation, each of them has its limitations, and may not even be realisable within the present structure of property rights. Taken together, however, they hold the promise of radical change in public priorities and democratic politics. This is why it is so important to revive the Directive Principles of the Constitution as well as the visionary conception of democracy that informs them.
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ACKNOWLEDGEMENTS This article has been adapted from the third C Chandrasekaran Memorial Lecture, delivered at the International Institute for Population Sciences (Mumbai) on November 7, 2003. I am grateful to P Arokiasamy and T K Roy for inviting me to deliver this lecture, and for their overwhelming hospitality.
NOTES 1. On the international perspective, see, e.g., Raghav Gaiha (2003), Mahendra Dev (2003) and Harsh Mander (2003). 2. Quoted in Bhagwan Das (nd), p. 61. Strictly speaking, this was not so much a definition of democracy as a “test” of it. Ambedkar added: “It is perhaps the severest test. But when you are judging the quality of a material you must put it to the severest test.” Note also that in other contexts he insisted that democracy was not just a method of government but also a “form of social organisation” and a “way of life”. 3. Proceedings of the constituent assembly of India, Friday 19 November 1948; available at http://www.parliamentofindia.nic.in/debates/ vol17p9.htm. 4. “The second wrong ideology that has vitiated parliamentary democracy (in western Europe) is the failure to realise that political democracy cannot succeed where there is no social or economic democracy… Democracy is another name for equality. Parliamentary democracy developed a passion for liberty. It never made a nodding acquaintance with equality. It failed to realise the significance of equality and did not even endeavour to strike a balance between liberty and equality, with the result that liberty swallowed equality and has made democracy a name and a farce”, (quoted in Rodriguez, 2002, p 62). 5. International Institute for Population Sciences (2000), pp. 246, 250 and 270. The ‘child undernutrition’ figures are based on weight-for-age data for children under the age of three. 6. United Nations Development Programme (2003), pp. 258–261. 7. International Institute for Population Sciences (2000), pp. 219 and 244. 8. Bhatia and Drèze (2002). 9. To illustrate: (1) according to the National Sample Survey (unpublished data), the proportion of households that are not getting “two square meals a day throughout the year” declined from 19 per cent in 1983 to 3.3 per cent in 1999–2000; (2) according to the National Nutrition Monitoring Bureau (NNMB), the proportion of “severely undernourished” children (weight-for-age criterion) in eight sample states declined steadily from 17.2 per cent in 1975–80 to 6.4 per cent in 1999–2000, and clinical signs of acute undernutrition such as
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11. 12.
13.
14.
15.
16.
17. 18. 19.
20.
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marasmus and kwashiorkor have virtually disappeared. See National Institute of Nutrition (1997), pp. 69–70 and 104, and National Nutrition Monitoring Bureau (2002), p. 74. On related matters, see also National Institute of Nutrition (1991, 1997), Sachdev (1997, 2003), Gopalan (2003), among others. International Institute for Population Sciences (1995), p. 283, and International Institute for Population Sciences (2000), p. 266. A similar picture of sluggish nutritional improvement emerges from independent surveys carried out by the National Institute of Nutrition, Hyderabad; see, e.g., National Institute of Nutrition (2000, 2002). See, e.g., Deaton and Drèze (2002); also Ahluwalia (2000), Kurian (2000), Nagaraj (2000), Banerjee and Piketty (2001), among others. Drèze and Sen (2002), p. 302. When I repeated the exercise for the period of January–June 2003, I did find an article dealing with health—it was about the SARS crisis in China! See, e.g., Bela Bhatia (2000). The author describes the predicament of Dalit women during the 1995 assembly elections in central Bihar as follows: “Most of the women I interviewed had never voted before, nor did they understand the meaning or significance of ‘chunav’ (elections), vote or parties. While some of them were able to recognise some party symbols, they were often unable to relate the symbol to the party, and none of them could relate it to a particular candidate or programme.” See, e.g., Chomsky (1998). There are many interesting similarities between Ambedkar and Chomsky’s views on democracy, even though Ambedkar was rather less critical of state power. It is perhaps not an accident that both were strongly influenced by John Dewey, an outspoken critic of the concentration of power who viewed politics as “the shadow cast on society by big business” (quoted in Chomsky, 1998, p. 87). Whether the Directive Principles went far enough in that respect is another matter. Ambedkar’s own blueprint for a ‘socialist constitution’, sketched in an early memorandum submitted to the constituent assembly (Ambedkar, 1948), included more sweeping changes in economic institutions, especially property rights. On the accelerated progress of literacy and school participation in the nineties, see Drèze and Sen (2002), pp. 151–52 and 327–29. On the right to education in India, see Ravi Srivastava (2003), and the literature cited there. See, e.g., Anil Sadgopal (2003). There is, however, rapid change in this respect; see, e.g., Ravi Duggal (2003) and Abhay Shukla (2003). The ratio picked up again towards the end of the nineties, but mainly because of rapid increases in salaries (based on the recommendations of the Fifth Pay Commission), with little increase—if any—in real inputs. I recently observed an extreme example of such situations in Allahabad district, where some Dalit labourers had land titles (received under some “land distribution” scheme) but did not know where their land was. The gram sevak would not show it to them without a hefty bribe, and they were unable to pay. Some of them even suspected that they were working as casual labourers on their own land, encroached by powerful landlords.
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21. The right to information movement has been particularly active in Rajasthan during the last 15 years or so, but it has deep roots, going back at least to Jayaprakash Narayan. Another interesting precursor is Jotirao Phule, who was apparently checking muster rolls more than a century before Mazdoor Kisan Shakti Sangathan: “[Phule] enjoyed the company of the labourers and organised them… [He] studied for two or three years how corruption was practised by high officials and engineers. He knew well how they made up accounts by showing false attendance of labourers and how they divided the profits among themselves” [Keer 1964, p. 90]. 22. See Drèze and Sen (2002), pp. 367–68, and Vivek S. (2003). For further discussion of the right to information movement, see particularly Neelabh Mishra (2003). 23. More precisely, one could say that a person’s right to food is realised if her life is not impaired or limited by nutritional deficiencies of any kind, or (in a similar vein) that a person’s right to food is violated if nutritional deficiencies of any kind prevent her from leading a dignified life. The last definition would make it possible to link the right to food with recent judicial interpretations of the fundamental right to life (Article 21) as a right to ‘live with dignity’. I leave it to others to unravel the full implications of this approach, e.g., whether a professional weightlifter has a right to “more food” than an unemployed clerk. 24. This does not mean that it is pointless to make intra-family discrimination illegal. Most of time, laws are enforced by institutions other than the courts. Legal provisions can also have important effects on public perceptions of what is right and wrong. This is one reason, for instance, why compulsory education could make a difference even if the state refrains from enforcing it through the courts, or even from enforcing it at all. 25. Writ Petition (Civil) 196 of 2001, PUCL vs Union of India and others; for further details, see www.righttofood.com. 26. See, e.g., Margret Vidar (2003) and Gerald Moore (2003). 27. Variants of this proposal include: (i) converting some Directive Principles into Fundamental Rights (as happened with the right to education), (ii) elastic interpretations of the Fundamental Rights to encompass these Directive Principles (as with the argument that the right to food is implicit in the fundamental “right to life”), and (iii) a constitutional amendment making all Directive Principles justiciable (see, e.g., Ravi Duggal, 2003, in the context of the right to health). On related issues, see Mahendra Singh (2003) and the literature cited there. 28. For instance, in Shantistar Builders v Narayan Khimalal Totame (1990) 1 SCC 520, the Supreme Court stated: “The right to life is guaranteed in any civilised society. That would take within its sweep the right to food….” On this and other legal foundations of the claim that the right to life implies the right to food, see Human Rights Law Network (2002). 29. Ambedkar himself focused mainly on electoral politics as the means of holding the state accountable to the Directive Principles: “[The party in power] may not have to answer for their breach in a Court of Law. But [it] will certainly have to answer for them before the electorate at election time…” (in Rodriguez, 2002, p. 490). The point, however, can be extended to other tools of democratic practice.
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30. See http://www.rajasthan.gov.in/relief2002/relief2report_2.pdf. 31. As it turns out, the Congress Party lost the 2003 elections in Rajasthan. But this does not invalidate the argument. It simply shows that preventing famines is not a sufficient condition for winning elections. 32. See Drèze (2002); also Government of India (2002), p. 158. These estimates are obtained by “matching” foodgrain offtake from FCI godowns with National Sample Survey data on household purchases from the public distribution system. 33. To illustrate, a recent study of the PDS in Allahabad district found that only 1 per cent of the 1,400 sample households had correct knowledge of their entitlements (Mazumder, 2003, p. 21). 34. See, e.g., Drèze (2003a). In one village of Sendhwa (Madhya Pradesh), the PDS dealer has apparently struck a deal with the local residents, whereby he keeps all their cards, gives them 20 rupees in cash each month, and takes care of the rest. The most interesting part of the story is that the villagers are apparently satisfied: “20 rupees is better than nothing,” they say. This contentment reflects their low expectations of the PDS in ordinary circumstances (Sachin Jain, personal communication). 35. Personal observations based on field work in Dharmapuri district, one of Tamil Nadu’s most deprived districts (see also Drèze, 2003b). In one village, Dalit women were intrigued by the suggestion that the local dealer might be cheating them. “Where would he go after doing this?”, they said. “He lives here, and we will catch him if he cheats us.” Their confidence was refreshing, especially in comparison with the disempowerment and helplessness commonly observed among poor households in north India. 36. For further discussion, see Drèze and Goyal (2003), and earlier studies cited there. 37. The proceedings often reminded me of Kropotkin’s indictment of the lawyers of his time: “…a race of law-makers legislating without knowing what their laws are about; today voting a law on the sanitation of towns, without the faintest notion of hygiene, tomorrow making regulations for the armament of troops, without so much as understanding a gun; …legislating at random in all directions, but never forgetting the penalties to be meted out to ragamuffins, the prison and the galleys, which are to be the portion of men a thousand times less immoral than these legislators themselves.” Kropotkin, “Law and Authority”, quoted in Bose, 1967, p. 266.) 38. Personal observations in Tamil Nadu, Chhattisgarh and Madhya Pradesh. In both Chhattisgarh and Madhya Pradesh, it is not uncommon to find that the mid-day meal has failed to materialise for trivial reasons such as alleged lack of firewood. In one such school, visited at four o’clock in the afternoon, the teachers were least concerned about the fact that the children had not eaten anything since early morning, and even since the previous evening in a few cases. In response to a pointed question about the Supreme Court order, one of them promptly argued that the order required mid-day meals to be served on “200 days in the year only”.
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39. See, e.g., Anita Pratap (2003). 40. For further discussion, see Drèze and Sen (2002), pp. 213–18; also Drèze (2003b).
REFERENCES Ahluwalia, Montek S. 2000. ‘Economic Performance of States in Post-Reforms Period’, Economic and Political Weekly, May 6. Ambedkar, B.R. (nd). ‘Essential Conditions Precedent for the Successful Working of Democracy’, reprinted in Bhagwan Das (nd). ———. 1948. ‘States and Minorities’, memorandum submitted to the Constituent Assembly; reprinted in Government of Maharashtra (1979–98), volume I. Banerjee, A. and T. Piketty. 2001. ‘Are the Rich Growing Richer: Evidence from Indian Tax Data’, MIT, Cambridge MA and CEPREMAP, Paris, processed. Bhagwan Das (ed.). (nd). Thus Spoke Ambedkar, Vol. I, Buddhist Publishing House, Jalandhar. Bhatia, Bela. 2000. ‘The Naxalite Movement in Central Bihar’, PhD thesis, University of Cambridge. Bhatia, Bela and Jean Drèze. 2002. ‘Still Starving in Jharkhand’, Frontline, August 16. Bose, Atindranath. 1967. A History of Anarchism, World Press, Calcutta. Chomsky, Noam. 1998. World Orders, Old and New, Oxford University Press, Delhi. Deaton, Angus and Jean Drèze. 2002. ‘Poverty and Inequality in India: A Reexamination’, Economic and Political Weekly, September 7. Drèze, Jean. 1990. ‘Famine Prevention in India’ in Drèze, J.P. and A.K. Sen (eds), The Political Economy of Hunger, Vol. 2, Famine Prevention, Oxford University Press, Oxford. ———. 2002. ‘Food Security Programmes in Uttar Pradesh: An Autopsy’, paper presented at a seminar on Labour and Poverty in Uttar Pradesh held at the G.B. Pant Social Science Institute, Allahabad, November 22–23, to be published in the proceedings of the seminar. ———. 2003a. ‘Food Security and the Right to Food’ in S. Mahendra Dev, K.P., Kannan and N. Ramachandran (eds), Toward a Food Secure India, Institute for Human Development, New Delhi. ———. 2003b. ‘Where Welfare Works: Plus Points of the TN Model’, Times of India, May 21. Drèze, Jean and Aparajita Goyal. 2003. ‘Future of Mid-Day Meals’, Economic and Political Weekly, November 1. Drèze, Jean and Amartya Sen. 2002. India: Development and Participation, Oxford University Press, New Delhi and Oxford. Duggal, Ravi. 2003. ‘Health and Development in India: Moving Towards Right to Healthcare’, mimeo, Centre for Enquiry into Health and Allied Themes (CEHAT), Mumbai.
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Gaiha, Raghav. 2003. ‘Does the Right to Food Matter?’, Economic and Political Weekly, October 4. Gopalan, C. 2003. ‘Changing Nutrition Scene in South Asia’, paper presented at IX Asian Congress of Nutrition, New Delhi, 23–27 February; available at www.nutritionfoundationofindia.org/archives/apr2003c.htm Government of India. 2002. Report of the High Level Committee on Long-Term Grain Policy, Department of Food and Public Distribution, New Delhi. Government of Maharashtra. 1979–98. Dr Babasaheb Ambedkar: Writings and Speeches, 16 volumes. Department of Education, Mumbai. Human Rights Law Network. 2002. ‘The Right to Food and the Right to Work for Food: Case Law’, mimeo, Human Rights Law Network, New Delhi. International Institute for Population Sciences. 1995. National Family Health Survey 1992–93: India, IIPS, Mumbai. ———. 2000. National Family Health Survey (NFHS-2) 1998–99: India, IIPS, Mumbai. Keer, Dhananjay. 1964. Mahatma Jotirao Phooley: Father of Our Social Revolution, Popular Prakashan, Bombay. Kurian, N.J. 2000. ‘Widening Regional Disparities in India: Some Indicators’, Economic and Political Weekly, February 12. Mahendra Dev, S. 2003. ‘Right to Food in India’, Working Paper 50, Centre for Economic and Social Studies, Hyderabad. Mazumder, Bhaskar. 2003. ‘Public Distribution System in India: A Study of the District of Allahabad, Uttar Pradesh’, mimeo, G B Pant Social Science Institute, Allahabad. Mishra, Neelabh. 2003. ‘People’s Right to Information Movement: Lessons from Rajasthan’, Discussion Paper 4, Human Development Resource Centre, UNDP, New Delhi. Mander, Harsh. (2003). ‘Social, Economic and Cultural Entitlements and Legal Rights’, mimeo, ActionAid, New Delhi. Mari Bhat, P.N. 2002. ‘Has the Decline in Infant Mortality Rate Slowed Down? A Review of SRS Evidence’, paper presented at a national workshop on ‘Infant Mortality: Levels, Trends and Interventions’ held at New Delhi on April 11–12, 2002. Moore, Gerald. 2003. ‘Note on National Framework Legislation’, available at http://www.nutrition.uio.no/iprdf/Encounterdocuments/DocO18.html Nagaraj, R. 2000. ‘Indian Economy since 1980: Virtuous Growth or Polarisation?’, Economic and Political Weekly, August 5. National Institute of Nutrition. 1991. Report of Repeat Surveys (1988–90), National Institute of Nutrition, Hyderabad. ———. 1997. 25 Years of National Nutrition Monitoring Bureau, National Institute of Nutrition, Hyderabad. ———. 2000. Annual Report 1999–2000, NIN, Hyderabad. ———. 2002. Annual Report 2001–02, NIN, Hyderabad. National Nutrition Monitoring Bureau. 2002. ‘Diet and Nutritional Status of Rural Population’, Technical Report 21, NNMB, National Institute of Nutrition, Hyderabad.
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Pratap, Anita. 2003. ‘Strike against Hunger’, Outlook, August 18. Rodriguez, Valerian (ed.). 2002. The Essential Writings of Dr Ambekdar, Oxford University Press, New Delhi. Sachdev, H.P.S. 1997. ‘Nutritional Status of Children and Women in India: Recent Trends’, available at www.nutritionfoundationofindia.org/archives/apr2003c. htm/archives/auth-s2v.htm ———. 2003. ‘Recent Transitions in Anthropometric Profile of Indian Children: Clinical and Public Health Implications’, paper presented at IX Asian Congress of Nutrition, New Delhi, February 23–27, available at www.nutritionfoundati onofindia.org/archives/apr2003c.htm Sadgopal, Anil. 2003. ‘Education for Too Few’, Frontline, December 5. Shukla, Abhay. 2003. ‘The Right to Health Care: Moving from Idea to Reality’, mimeo, CEHAT, Mumbai. Singh, Mahendra P. 2003. ‘The Statics and the Dynamics of the Fundamental Rights and the Directive Principles: A Human Rights Perspective’, mimeo, Law Faculty, Delhi University. Srivastava, Ravi. 2003. ‘The Right to Education in India’, mimeo, Centre for Development and Human Rights, New Delhi. United Nations Development Programme. 2003. Human Development Report 2003, UNDP, New York. Vaidyanathan, A. 2002. ‘Food Consumption and Nutrition Status: A ReExamination Based on Indian Evidence’, mimeo, Madras Institute of Development Studies, Chennai. Vidar, Margret. 2003. ‘Implementing the Right to Food: Advantages of a Frame-work Law’, paper presented at a seminar convened by FIAN International, held at the Indian Social Institute (New Delhi) on February 24–26. Vivek, S. 2003. ‘A Message of Hope’, Humanscape, December. Weiner, Myron. 1991. The Child and the State in India, Princeton University Press, Princeton.
About the Editors and Contributors THE EDITORS Sanam Roohi is Research Associate of the Calcutta Research Group. A post-graduate in Political Science, Calcutta University, her primary academic interests are issues of minority rights, gender justice and Development Studies. Ranabir Samaddar is a leading political thinker belonging to the critical school of political thought. He is known as a pioneering educationist in the area of peace studies and forced migration. He was the founder-director of the Peace Studies Programme at the South Asia Forum for Human Rights, Kathmandu, and is currently the Director of Mahanirban Calcutta Research Group. His research interests are contemporary issues of justice, human rights and popular democracy in the context of post-colonial nationalism, trans-border migration, community history and technological restructuring in South Asia. Known for his critical studies, he has served on various commissions and study groups on issues such as partitions, critical dictionary on globalisation, patterns of forced displacement and the institutional practices of refugee care and protection in India, rights of the minorities and forms of autonomy, technological modernisation, and occupational health and safety. His recent works are The Politics of Dialogue (2004), an edited volume called Peace Studies: An Introduction to the Concept, Scope, and Themes (2004), The Materiality of Politics, two volumes (2007).
THE CONTRIBUTORS Puroshottam Agarwal is a member of the Union Public Service Commission. He retired as a professor in Hindi Literature in the Centre of
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Indian Languages, Jawaharlal Nehru University. His research interests are in Bhakti poetry, 19th century culture and literature, identity and discourse of power in the Indian society. Muzaffar Assadi is Professor and Chair of Department of Political Science at University of Mysore. He is a columnist and a well-known social activist on human rights and his areas of interests are new social movements, identity politics, political sociology and globalisation. Paula Banerjee is the Chair of the Department of South and South East Asian Studies, University of Calcutta and a senior member of the Calcutta Research Group. As part of her current work on borders and women, she has authored numerous papers on women in conflict situations in northeast India. She has authored a book on Indo-US relations, titled When Ambitions Clash (2003) and has co-authored a book, Women in Society and Politics in France. She is the recipient of a number of international fellowships including the Advanced Taft Fellowship (1991–93) and has been the recipient of the WISCOMP Fellow of Peace Award (2001). Some of her recent works include Autonomy: Beyond Kant and Hermeneutics, co-edited with Samir Kumar Das (2007) and Women and Peace Politics (2008). Sabyasachi Basu Ray Chaudhury, Professor of Political Science and Director, Centre for Nepal Studies at Rabindra Bharati University is Senior Researcher at Mahanirban Calcutta Research Group. He is one of the few experts on Andaman and Nicobar Islands. His other interests include politics of globalisation, democracy, development, displacement, human rights and justice in South Asia. His recent publications include Indian Autonomies: Key Words and Key Texts, co-edited with Ranabir Samaddar and Samir Kumar Das, Sampark, Kolkata (2005) and Internal Displacement in South Asia: The Relevance of UN’s Guiding Principles, co-edited with Paula Banerjee and Samir Kumar Das (2005). Sanjay Barbora is currently the regional head of Panos South Asia’s (PSA) ‘media and conflict’ thematic concern and also the programme manager of PSA’s ‘peace building and media pluralism’ project. Dr Barbora is currently doing research with the National Centre for Competence and Research (NCCR) North-South, on issues of migration and state formation in Central and South Asia.
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Rajeev Dhavan is an Honorary Professor of the Indian Law Institute, New Delhi. Former President of the Cambridge Union, he has taught at the Queens University Belfast and the University of West London. He has also had teaching assignments at London and Delhi Universities and the Universities of Madison (Wisconsin) and of Austin (Texas). A regular columnist in India’s leading newspaper, Prof. Dhavan has written and edited many publications including books on the judiciary, the media, human rights and public law. Jean Drèze is a renowned economist and is a Professor at the Dept. of Economics, Delhi School of Economics, New Delhi. He is now a Visiting Professor at G.B. Pant Social Science Institute, Allahabad. He has made wide-ranging contributions to development economics and public economics, with special reference to India. Some of his works are Hunger and Public Action, with Amartya Sen (1989), The Political Economy of Hunger, co-edited with Amartya Sen, three volumes (1990), Policy Reform, Shadow Prices and Market Prices, with Nicholas Stern (1990), Social Security in Developing Countries, co-edited with S.E. Ahmad, J. Hills and A.K. Sen (1991), Hunger and Poverty in Iraq, with Haris Gazdar (1991) and World Development (1992). Kuntala Lahiri-Dutt is a Community and Gender Specialist in Natural Resource Management, Resource Management in Asia-Pacific Programme, Australia National University. Her research interests include community initiatives and development in mining and water sectors, with special focus on South Asia. Her recent publications are Fluid Bonds: Views on Gender and Water (2006) and Women Miners in Developing Countries: Pit Women and Others, co-edited with Martha Macintyre (2006). Lyla Mehta, a Research Fellow at the Sussex Centre for Migration Research, is a sociologist working on forced migration, environment— development linkages and access to water and sanitation. She is an expert on gender and forced displacement, rights, access to natural resources and power/knowledge interfaces in policy debates addressed through the case of water. Some of her works include Displaced by Development: Confronting Marginalisation and Gender Injustice (2007) and ‘Scarcity and Property Rights. The Case of Water in Western India’, Land Policy (2007).
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Usha Ramanathan, Member, Advisory Council for India, is an internationally recognised expert on law and poverty. She teaches at the Indian Law Institute and conducts training programmes at the National Institute for Programmes and Policies on Child Development in New Delhi. Her research interests include human rights, displacement and environment. She has published extensively in India and abroad. G.P. Deshpande is a retired Professor of Chinese Studies at the School of International Studies, Jawaharlal Nehru University, New Delhi. He is also a playwright and critic in Marathi. His best-known plays include Uddhwastha Dharmashala (A Man in Dark Times), Andharyatra (Passage to Darkness), Chanakya Vishnugupta, Raste (Roads) and Satyashodhak, a play on Jotirao Phule’s life. He received the Maharashtra State Award for his collective work in 1977 and the Sangeet Natak Akademi Award for playwriting in 1996. Nandini Sundar is Professor of Sociology at Delhi School of Economics, Delhi University. Her research interests include political and legal sociology, social history, development theory and practice and intellectual history. She has authored Subalterns and Sovereigns: An Anthropological History of Bastar, 1854–1996 (1997), co-edited A New Moral Economy for India’s Forests: Discourses of Community and Participation (1999) and co-authored Branching Out: Joint Forest Management in India (2001).
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Index ‘Against Bedthi Project’ movement, 86 Ambedkar, B.R., 485, 561, 566, 571, 572 Ananthamurthy, U.R., 84, 85 Appiko Chaluvali (Hug the tree) campaign, 86 Association for Protection of Democratic Rights (APDR), 91 Cacharis, 38 caste congregations, caste identity assertion at, 509–13 Coal Mines (Nationalisation) Act, 302 Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, 139 compensation to victims, 164–65 declaration of certain areas as communally disturbed areas, 141–42 enhanced punishment for communal violence, 148 funds for relief and rehabilitation, 163–64 institutional arrangements for relief and rehabilitation, 157–61 investigation, 149–50 miscellaneous, 168–69 National Council, 161–63 powers, duties and immunities of the officers, 167–68 preliminary, 139–41 prevention of acts leading to communal violence, 142–48 Special Courts, 150–56 special powers of Central Government to deal with communal violence in certain cases, 166–67 corporate social responsibility (CSR), 315, 316
Democratic Youth Federation of India, 89 development projects, and issue of justice, 32–34 Dima Halam Daoga, 41 Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, 537–38 forest rights, in Bill, 539 gram sabha, power to, 538 local language use, for information, 538 tribal forest rights, recognition of, 537 ethnic politics and land use, in North Cachar Hills, 33, 35–36, 53–54 conflict, causes of, 51–53 development initiatives, and change in land use, 46–49 Dimasa, social history of, 37–41 Cachari kingdom and, 38–39 Dimasa Jalairaoni Hosom, formation of, 40–41 Dimasa National Organisation, formation of, 41 District Council, and Dimasa identity, 40 Tribal Council, formation and demands of, 39–40 district council functioning, and political parties, 45–46 gaon burha and land ownership rights, 43–45 militarisation of, NC Hill, 49–51 North Cachar Hills district ethnic population of, 37 formation of, 36–37 Sixth Schedule, and power of district council, 41–43, 46 ethnodevelopment, concept of, 48–49
590 Folk School System, 469–70 aim of, 470 and discourse on justice, 470–71 Folk School of Dalit Bahujans and marginalized, 469 Bajardeeha folk school, meeting of, 473–76 folk school in Ayer (Mushar ghetto), meeting of, 477–82 Mushars folk school, in Belwa village, 470–72 untouchability, practiced by Government Primary School, 482–87 history of, 469 in India, 470 HIV/AIDS, and women adoption rights, 419 Beijing Declaration and the Platform for Action, 408–11 child infection, from mother, 387– 88 child marriage, 388–89 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 406–407 Optional Protocol, 407–408 economic factors, 389–93 education and, 393–97 feminization of epidemic, 377–79 factors for, 381–82 girl orphans and violence against women, 382–83 guardianship and custody rights, 413 Guardian and Wards Act, 1890 (GWA), 413–14 Hindu Minority and Guardianship Act (HMGA), 414–15 in India, 413 international legal scenario on, 417–18 in Muslim Personal law, 416–17 human rights accords and commitments, 422–23
Key Texts on Social Justice in India human rights and, 379–81 human rights instruments, international, 423 important documents, 424 Indian society, and declining sex ratio, 385 intravenous drug users (IDUs) and, 397–98 lack of knowledge and, 385 marriage rights, 411–13 planning for child’s future care India, 420–21 United States, 421–22 sexual violence, and HIV transmission, 384–85 sex workers, and HIV infection, 398–99 United Nations General Assembly Declaration, 408 woman’s property rights, in India, 399 Christian and Parsi women, 402–403 Hindu, Sikh, Buddhist and Jain women, 400–401 Muslim women, 402 tribal women, 401–402 woman’s property rights, in Zambia, 403–404 women’s rights under international law, 405–406 HIV/AIDS social assessment among tribal people, report by NACP on, 488–94 Tribal Action Plan, 494–507 HIV case, verdict by Supreme Court of India, 324–33 infringement of ‘Suspended Right to marry,’ no damages for, 324 illegal coal mining, in eastern India, 294–95 CIL’s monopoly, and global changes, 304–305 Coal India (CIL), and mining operations, 295, 302
Index coal mining, eligiblity for, 302–303 common pool resources, need for protection of, 317 defects in legal framework and justice, 315–17 global minerals industry, changes in, 305–306 social licence to operate, need of, 306–307 illegal coal, 307 illegal mining, 308–309 informalisation and illegitimacy, in mining, 297–99 mines classification, in India, 300– 302 MMDR Act, 300, 301 pauperisation, in mining areas, 310–12 and illegal coal mining, 310–11 mafia-controlled system, of coal transport, 312 privatisation, effects of, 315–17 regulation, regularisation and formalisation, 313–15 rights of local citizens, 317–18 social impacts, 303–304 unintended collieries, 295–97 Indian communist movement, 520–25 informal sector, in India, 540–42 importance, in Indian economy, 542–43 organised’ and ‘unorganised’ sectors, 540–41 social security to workers, models of, 543–45 unorganised sector, 541 workforce of, 541 International Fund for Agricultural Development (IFAD), 47–48 International Guidelines on HIV/AIDS and Human Rights, 380 justice, building blocks of, 534–35 justice in India, study by Calcutta Research Group, 10–11, 21 dialogic route of research, 13
591 key texts, on justice, 20–21 law and justice, relationship between, 18–19 marginalities and issue of social justice, 19–20, 22–23 method for study, 12–13 risk society governing in, 24 social justice in, 24–26 security considerations, and justice, 24 social justice, 22 and democracy, 11–12 issue, and sovereignty and democracy, 26–27 and political rationality, 22 state of social justice in West Bengal, volume, 13–18 Karanth, Shivram, 84–85 Karnataka Rajya Raitha Sangha (KRRS), 86 Kittiko Hattiko Chaluvali, 86 Kudremukh, and environmental movement, 33, 81–82 ecological disaster, by mining industry, 84 environmentalist argument for, 87–88 intellectuals involved in, 84–86 iron ore, extraction of, 82 Kudremukh Iron Ore Company (KIOCL), 81 and environmental norms violation, 83 formation of, 82 and Supreme Court verdict, 81, 83 national park, and tribals eviction, 83–84 organisations opposing movement, 88–89 other environmental movements, 86 Kudremukha Ulisi, 89 Kudremukh Rastriya Udyana Virodhi Okkuta (KRUVO), 87
592 Kutch, water scarcity in, 63–64, 74–77. See also water scarcity anthropogenic interventions and, 66 de-vegetation, 66–67 dwindling groundwater aquifers, 67 groundwater control, inequality in, 67–68 local responses, to scarcity households’ experiences, of drought, 71–74 Merka village, strategies in drought-prone, 68–70 planners and policy makers, role of, 73–74 real and manufactured scarcity, distinction between, 75–76 and Sardar Sarovar Project (SSP), 64–66 Manufacturing Consent, 65 marginality, and production of justice, 466–68 Minerals Conservation and Development Rules (MCDR), 301 Mines and Minerals Development and Regulation (MMDR) Act of 1957, 300 Ministry of Social Justice and Empowerment, 135–36 minorities rights, Indian charter for protection of application of principles, 336–38 devolution of power, autonomy and federalism, 365–68 effective implementation and redress, 368–70 effective participation of minorities in public and political life, 360–65 international and regional Human Rights instruments, 371 non-discrimination and affirmative action, 338–43 preamble, 334–36 promotion of diversity and intercultural education, 346–48
Key Texts on Social Justice in India right of minorities to be taught their language and have instruction in their language, 356–58 rights of minorities to their identity and characteristics, 343–45 right to establish and manage their own unions, associations and institutions, 358–60 right to freedom of religion, 348–51 right to use their own language in private and in public, 351–56 Mookajjiya Kanasugalu (Dreams of Mookajji), 84–85 Nandigram mass killings, report on administration response, to team for Nandigram, 93 children, violence and murder of, 104–105 concealing of dead bodies, 99–101 death toll, 99 list of dead persons, 99 events before 14th, 94–95 inadequate medical facilities, 102 looting, incidence of, 105–106 missing people and deserted villages, 106–107 party and police officials, combined action of, 95–97 petition in Kolkata High Court, by APDR and PBKMS, 91 court order, on petition, 91–93 sequence of events, 97–98 violence against women, 102–103 rape of women, 103–104 wounded and patients, in hospital, 101–102 National Housing Policy (NHP), 281 National Mineral Policy (NMP), 300 National Policy for the Empowerment of Women (2001) economic empowerment of women globalization, 430 micro credit, 429 poverty eradication, 429 support services, 431
Index women and agriculture, 430 women and economy, 429–30 women and industry, 431 goal and objectives, 427 introduction, 425–26 mass media, 436 operational strategies Action Plans, 436–37 gender sensitization, 440 institutional mechanisms, 437–38 international cooperation, 441 legislation, 439–40 Panchayati Raj Institutions, 440–41 partnership with voluntary sector organizations, 441 resource management, 438–39 policy prescriptions decision making, 428 judicial legal systems, 427–28 mainstreaming gender perspective in development process, 428–29 rights of girl child, 435–36 social empowerment of women drinking water and sanitation, 433 education, 431–32 environment, 434 health, 432–33 housing and shelter, 433–34 nutrition, 433 science and technology, 434 women in difficult circumstances, 434–35 violence against women, 435 National Rehabilitation and Resettlement Policy, 2007 appointment of Administrator and Commissioner for Rehabilitation and Resettlement and their powers and functions, 226–28 definitions of, expressions in policy, 221–24 grievance redressal mechanism, 243–45
593 monitoring mechanism, 246–47 objectives of, 220–21 policy, preamble, 218–20 rehabilitation and resettlement benefits for affected families, 235–43 rehabilitation and resettlement plan, 228–35 Social Impact Assessment (SIA) of projects, 224–26 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999, 170 accountability and monitoring, 180–81 finance, accounts and audit, 181–83 local level committees, 178–80 miscellaneous, 183–87 National Trust for Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability, 172–75 objects of the Trusts, 175–76 powers and duties of the Board, 176–77 preliminary, 170–72 procedure for registration, 178 Parej East project, 304 Paschim Banga Khet Majoor Samity (PBKMS), 91 peasant struggle in Bihar, report on, 519–20 agrarian issues in, 529, 530 CPI(ML) led peasant struggle, 526–29 farmers’ movement in Maharashtra, 529–30 Indian agriculture changing pattern, and struggle, 529 Indian communist movement, 520–25 Kisan Sabha movement, 525–26 Sarvodaya in Bihar, 526 People’s Vigilance committee on Human Rights (PVCHR), 470
594 Protection of Women from Domestic Violence Act, 2005, 248–57 Public Interest Litigation (PIL), 264 reservation of seats, in educational institutions American model of action, 516 caste-based reservations, 514–16 Multiple Index Related Affirmative Action (MIRAA) model, 517–18 right to food, and democracy, 560–61, 576–77 economic and social rights in democracy, 564–66 empowerment value of, 566–68 right to information movement, 568 entitlements, and responsibilities with, 568–69 mid-day meals, in primary schools, 574–76 nutritional situation, in India, 562– 564 Right to Information Act, 2005, 188–89 Central Information Commission, 200–204 miscellaneous, 212–17 powers and functions of the Information Commissions, appeal and penalties, 208–12 preliminary, 189–191 right to information and obligations of public authorities, 191–200 State Information Commission, 204–208 riverbank erosion and displacement of women, in West Bengal, 108–11 attitude towards, women’s problems, 131–32 disaster, nature of, 125–26 erosion disaster effect, on lives of women in Cooch Behar, 123–25 in Malda, 113–18 in Murshidabad, 119–23 objectives, of study, 111
Key Texts on Social Justice in India self-organisation, of displaced women, 130–31 survey of, settlement areas, 112 women, impact of disaster on domestic violence, 129–30 economic, 126–27 education, 128–29 health and sanitation, 127–28 sexual risks, 130 Scarcity and Modernity, 61 Shola forest, 84 Slum Areas (Improvement and Clearance) Act (1956 Act), 265, 280 slum dwellers lives, role of law in, 261, 263–65 adequate housing, concept of, 286 demolition and relocation, reasonableness of, 286–87 encroachment, and slum dwelling, 282 judicial response, on issue of shelter, 267–71 Ahmedabad Municipal Corporation case, 275, 277–79, 285 Almitra Patel v. Union of India, 269, 273–75, 278 Bombay Environmental Action Group (BEAG) v. A.R. Bharati, 269–71 Chameli Singh v. State of Uttar Pradesh, 280 Lawyers’ Cooperative Group Housing Society v. Union of India, 278 Olga Tellis v. Bombay Municipal Corporation (BMC), 267–70, 272–73, 275, 285 language for, slum dwelling and demolition, 281–85 perceptions reflected, in law, 272–76 priorities, 276–81 right to housing, for poor, 270, 271, 285–86 slum, definition of, 265–67 extent of city population, in slums, 266
Index kinds of, slums, 266 Sorab, Kusuma, 85 state responsibility, to deliver justice, 134–35 acts and policies, 137 Ministry of Social Justice and Empowerment, 135 mainstream ‘clients,’ 136 mission of, 136 strike history of workers’ struggles, and law, 553–59 meaning of, 551 politics of struggle, and politics of governance, 546–51 right to strike, within legal framework, 553 Tamil Nadu Civil Servants Strike Case (2005), SC in, 551–52 Trade Fair Authority of India Case (1989), SC in, 552 Thunga Ulisi (Save Tunga) agitation, 84 trafficking and statelessness, in South Asian women, 442, 458–60 Bangladesh, trafficking of women from, 452–53 Chins and Rohingyas women, of Myanmar, 444–48 human trafficking, 442 as criminal offence, by Palermo Protocol, 442–43
595 history of, 442 India, flesh trade in, 455–56 Lhotsampas women, from Bhutan, 449–51 Nepal, flesh market of, 454–55 Northeast India, trafficking in, 453–54 Pakistan, trafficking in, 456 Sri Lankan refugees, in India, 448– 49 statelessness, 443 as cause of trafficking, 444–51 reasons for, 444 as result of trafficking, 451–58 right to nationality, denial of, 443–44 in South Asia, 444 stateless people, position of, 456–58 Uttara Kannada Parisara Koota (UKPK), 85 water scarcity, 58–59 Kutch and, 62–64 multifaceted nature of, 59–60 as social and policy agenda, 61–62 women marginalisation, and justice, 374–76. See also HIV/AIDS and women; trafficking and statelessness, in South Asian women
