April 2011

Chief Editor : Neeta Prasad Editor : Manogyan R. Pal

Vol 55
Joint Director (Prod) : J.K. Chandra Cover Design : Sadhana Saxena E-mail (Editorial) : editoryojana@hotmail.com : yojanace@gmail.com (Circulation): pdjucir_ jcm@yahoo.co.in Website : www.yojana.gov.in

Let noble thoughts come to us from every side

Rig Veda

CONTENTS
Tribal Neglect and Limitations of Budget-centric Approach to Development N C Saxena........................................................................................5 Providing an Improved Environment for Human Rights in The Country Justice K G Balakrishnan.................................................................10 Evaluating the Status of Women Rights in India Girija Vyas.......................................................................................14 Juvenile Justice System in India Savita Bhakhry.................................................................................16 Right to Corruption Free Governance Arvind Kejriwal...............................................................................21 Best Practices A journey of a different kind Kunzang Dolma...............................................................................25 Human Rights Law in India: Right to Water and Social Justice Sarasu Esther Thomas . ...................................................................27 J&K Window . ..........................................................................30 Human Rights and the Role of Judiciary Pravin S Bhagdikar..........................................................................31 Social Justice in the Indian Context Shriram Yerankar.............................................................................35 Demographic Transition and Care for the Elderly P K Sujathan. ....................................................................................38 North east diary. ...............................................................41 Educational Rights of Children with Special Needs Adya Shakti Rai...............................................................................42 Judiciary and Social Justice Mritunjay Srivastava........................................................................46 Shodh Yatra Self Dispensing Jug.........................................................................48 do you know? PROTECTING HUMAN RIGHTS IN INDIA . ............................51

Our Representatives : Ahmedabad: Amita Maru, Bangalore: B.S. Meenakshi, Chennai: I. Vijayan, Guwahati: Anupoma Das, Hyderabad: V. Balakrishna, Kolkata: Antara Ghosh, Mumbai: Minakshi Banerjee, Thiruvananthapuram: VM Ahmad.
YOJANA seeks to carry the message of the Plan to all sections of the people and promote a more earnest discussion on problems of social and economic development. Although published by the Ministry of Information and Broadcasting, Yojana is not restricted to expressing the official point of view. Yojana is published in Assamese, Bengali, English, Gujarati, Hindi, Kannada, Malayalam, Marathi, Oriya, Punjabi, Tamil, Telugu and Urdu. EDITORIAL OFFICE : Yojana Bhavan, Sansad Marg, New Delhi-110001 Tel.: 23096738, 23042511. Tlgm.: Yojana. Business Manager (Hqs.) : Ph :24367260, 24365609, 24365610 For new subscriptions, renewals, enquiries please contact : Business Manager (Circulation & Advt.), Publications Division, Min. of I&B, East Block-IV, Level-VII, R.K. Puram, New Delhi-110066, Tel.: 26100207, Telegram : Soochprakasan and Sales Emporia : Publications Division: *Soochna Bhavan, CGO Complex, Lodhi Road, New Delhi -110003 (Ph 24365610) *Hall No.196, Old Secretariat, Delhi 110054(Ph 23890205) * 701, B Wing, 7th Floor, Kendriya Sadan, Belapur, Navi Mumbai 400614 (Ph 27570686)*8, Esplanade East, Kolkata-700069 (Ph 22488030) *A Wing, Rajaji Bhawan, Basant Nagar, Chennai-600090 (Ph 24917673) *Press road, Near Govt. Press, Thiruvananthapuram-695001 (Ph 2330650) *Block No.4, 1st Floor, Gruhakalpa Complex, M G Road, Nampally, Hyderabad-500001 (Ph 24605383) *1st Floor, F Wing, Kendriya Sadan, Koramangala, Bangalore-560034 (Ph 25537244) *Bihar State Co-operative Bank Building, Ashoka Rajpath, Patna-800004 (Ph 2683407) *Hall No 1, 2nd floor, Kendriya Bhawan, Sector-H, Aliganj, Lucknow-226024(Ph 2225455) *Ambica Complex, 1st Floor, above UCO Bank, Paldi, Ahmedabad-380007 (Ph 26588669) *KKB Road, New Colony, House No.7, Chenikuthi, Guwahati 781003 (Ph 2665090) SUBSCRIPTION : 1 year Rs. 100, 2 years Rs. 180, 3 years Rs. 250. For neighbouring countries by Air Mail Rs. 530 yearly; for European and other countries Rs. 730 yearly. No. of Pages : 56 Disclaimer : l The views expressed in various articles are those of the authors and not necessarily of the government. l The readers are requested to verify the claims made in the advertisements regarding career guidance books/institutions. Yojana does not own responsibility regarding the contents of the advertisements.

YOJANA April 2011

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YOJANA April 2011

About the Issue

t took us the horror of two world wars to realize and accept that peace and freedom in the true sense can be achieved only if we respect the inherent dignity of every individual and are committed to establishing social, political and economic orders that are fair and just for all. The Universal Declaration of Human Rights may not be legally binding on nations, but as part of the customary international law, it does affect the national conscience and subject moral pressure on countries to work towards securing rights and justice for their people. For a country like India whose commitment to this objective is amply visible in its Constitutional provisions, the actual attainment of the end is certainly not easy. To start with, probably no other country in the world has to reckon with as many potentially divisive, diverse forces as ours. There are differences of region, religion, sex, caste and language. There are differences in economic status and educational attainment. Then there are people with physical and age related disabilities, those rendered homeless due to internal conflicts, natural disasters, industrialization and such other reasons, whose rights need to be protected. Economic development and rapid urbanization have contributed their own sets of vulnerable population groups the migrants, the slum dwellers, the industrial labourers, and those affected by deterioration of environment. So when India talks of securing human rights and social justice for all, she is not talking about a small, manageable, largely homogenous population . She is actually talking about securing the rights of more than a billion people, immensely heterogeneous in their diversity and often having interests that appear to be in direct conflict with those of another group. Indias report card in this area is typically that of a student who has made significant achievement, but still has a lot more ground to cover. So, while our women today are definitely on a steady path to empowerment, a lot many of our children are still deprived of even basic education, and are forced into employment. Our mechanisms and institutions for providing long term, sustainable care to the elderly and the disabled are still very sketchy. While the government is taking rapid strides in the area of ensuring inclusive growth, caste and region based differences still exist in the common psyche. But whatever our weaknesses, we can take pride in the fact that our framework for securing human rights and establishing a just social order is a very strong one. The judiciary has proved this time and again. Organizations like the National Human Rights Commission, National Commission for Women , the National Commission for Protection of Child Rights, the many NGOs working in these areas and also our central and state governments who have brought in relevant and meaningful legislations and are striving to implement the same, give us reason to be optimistic.

In the current issue of Yojana we bring to you articles from experts who discuss various aspects of Rights and Justice in India, pointing out our strengths and weaknesses and suggesting the way forward. q
YOJANA April 2011 3

YOJANA April 2011

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Rights and Justice

View Point

Tribal Neglect and Limitations of Budget-centric Approach to Development

N C Saxena

In addition to spending budgets, we need to give equal importance to non-monetary issues such as institutions, laws, and policies

t is well established that the central region of India, despite being resource rich, inhabits the poorest people who have not benefited from social and economic development to the same extent as people in other regions have, and in many cases have actually been harmed from displacement that growth entails. From the viewpoint of policy, it is important to understand that tribal communities are vulnerable not only because they are poor, assetless and illiterate compared to the general population; often their distinct vulnerability arises from their inability to negotiate and cope with the consequences of their forced integration with the mainstream economy, society, cultural and political system, from which they were historically protected as the

result of their relative isolation. Postindependence, the requirements of planned development brought with them the spectre of dams, mines, industries and roads on tribal lands. With these came the concomitant processes of displacement, both literal and metaphorical as tribal institutions and practices were forced into uneasy existence with or gave way to market or formal state institutions (most significantly, in the legal sphere), tribal peoples found themselves at a profound disadvantage with respect to the influx of betterequipped outsiders into tribal areas. The repercussions for the already fragile socio-economic livelihood base of the tribals were devastating ranging from loss of livelihoods, land alienation on a vast scale, to hereditary bondage.

The author is a member of the National Advisory Council. He retired as Secretary, Planning Commission, and has been engaged in projects related to various aspects of Planning and Development . YOJANA April 2011 5

As tribal people in India perilously, sometimes hopelessly, grapple with these tragic consequences, the small clutch of bureaucratic programmes have done little to assist the precipitous pauperisation, exploitation and disintegration of these communities. Tribal people respond occasionally with anger and assertion, but often also in anomie and despair, because the following persistent problems have by and large remained unattended to:
l l l

Land alienation Indebtedness Relation with forests, and government monopoly over MFPs, and nonimplementation of the Forest Rights Act, 2006 Ineffective implementation of Panchayats (Extension to the Scheduled Areas) Act of 1996 (PESA, 1996) for Schedule V areas Involuntary displacement due to development projects and lack of proper rehabilitation Shifting Cultivation, such as podu Poor utilisation of government funds, and Poor delivery of government programmes

do not get adequate attention. The present approach of the Ministry of Tribal Affairs (MOTA) is to confine its attention to its own budget and the schemes that are under its control, such as grants to NGOs, scholarships. It is unfortunate that MOTA does not put any pressure on other Ministries, who have been vested with the responsibility to ensure that basic justice and development reaches them. MOTA does not even monitor whether the basic services in education, health, or nutrition are reaching the tribal hamlets. T h i s p a p e r a rg u e s t h a t a systemic change is needed in the way MOTA and state tribal departments function; their approach must change from simply spending their own budget through narrow departmental schemes to knowledge based advocacy with other concerned Ministries/departments. MOTA must highlight the failure of governance that deprives the poor tribals from accessing elementary services, and put pressure on the concerned Ministries and state

governments to ensure better policies and delivery in tribal regions. Unspent budgetary balances On the other hand, MOTA is not able to spend even the limited budget allotted to it. Table below shows the Budget Estimate, Revised Estimate and Actual Plan Expenditure for the previous years along with the Budget Estimate for 2010-11. There has been large surrender of funds by the Ministry every year in the last 5 years, especially in 2009-10. Because of the poor expenditure by MOTA in 2009-10, there has been little increase in the BE for the Ministry in 2010-11. Non-receipt of adequate number of complete proposals in accordance with the scheme guidelines from the State Governments, non receipt of Utilization Certificates and lack of physical progress by State Governments, nonfilling of vacant posts, austerity measures, non-receipts of bills from the suppliers etc. have been cited by the Ministry as the reasons for the surrender of

Plan expenditure against budget provision for the Ministry of Tribal Affairs (In crore Rs.) Year Budget Estimates (BE) 1656.90 1791.71 2121.00 3205.50 3206.50 YOJANA April 2011 Revised Estimates (RE) 1652.68 1719.71 1970.00 2000 Expenditure % age of expenditure over BE 99.42 88.63 85.17 62.35

These issues needing urgent attention are under the jurisdiction of Ministries of Environment & Forests, Rural Development, Panchayati Raj, etc., where they
6

2006-07 2007-08 2008-09 2009-10 2010-11

1647.37 1524.32 1805.91 1996.79

funds. MOTA should improve its monitoring capabilities over timely expenditure of its budget. Poor governance Apart from poor utilisation of funds, tribals have also suffered because of the poor quality of governance. Programme delivery has deteriorated everywhere in India, but more so in tribal areas, where government servants are reluctant to work, and are mostly absent from their official duties. Government seems to have surrendered to political pressures from the staff, as many of their posts have now been officially transferred from tribal regions to non-tribal regions, where they can draw their salaries without doing any work! It is a pity that massive vacancies exist in tribal regions in the face of acute educated unemployment in the country. In a study by Unicef of Jharkhand it was revealed that one of the main constraints that NRHM in the state faces is lack of skilled manpower. In the two districts visited, Sahibganj has less than 50% positions in place, while in East Singbhum, with its better infrastructure, it is just around 54%. Other major reasons as identified during this study for low utilisation appeared more due to lack of systemic controls, such as lack of monitoring, and lack of understanding among the staff on implementation of rules.
YOJANA April 2011

MOTA was asked to oversee the implementation of the Forest Rights Act (FRA), but a recent study (available on fracommittee.icfre.org) shows that the Ministry has failed to get FRA implemented faithfully. Despite the fact that the main intention of FRA was to promote community participation and management, the study shows that community rights over MFPs etc have been recognized in negligible cases. MOTAs record on other tribal issues is equally dismal. MOTA has still not been able to finalise the National Tribal Policy, the draft of which was announced some six years back with a great deal of fanfare. Law pertaining to involuntary displacement has been discussed since 1998, but it has still not seen light of the day, though it is well established that tribals suffer most when new projects lead to involuntary displacement. MOTA takes no interest in pushing the states to change their state laws in conformity with PESA. There is no white paper from the Ministry relating to pathetic condition of governance in forest dependent villages, including huge vacancies and absenteeism of staff. The Ministry has no meaningful partnerships with advocacy organisations that could produce credible and evidence based reports with a view to put

pressure on other Ministries that ignore tribal interests. A systemic change is needed It is unfortunate that MOTA does not give sufficient attention to the important problems of the tribals on the plea that many of these subjects, such as land alienation, displacement, and PESA, have not been allotted to it. Even then the Ministry should play a more activist role in addressing these issues by pursuing with the concerned Ministries, where these subjects get a low importance, as the Ministries excuse is that they are concerned with bigger and more general issues. At least, MOTA can set up a monitoring mechanism to bring out the dismal picture of tribal areas that would put pressure on the sectoral Ministries and the states to improve their policies and implementation. MOTA would be taken seriously by other Ministries only if it does evidence based advocacy by analysing why delivery in the forest regions is not improving. Government could also set up a Group of Ministers to review the implementation of suggestions given in this paper. When a new Ministry is set up to help the marginalized people, it is expected that it would take a holistic view of their problems, and coordinate the activities of all other Ministries that deal with the subjects impinging on the work of the newly created Ministry. It would develop systems that
7

inform GoI how and why tribals are denied justice. On the other hand, it has been observed that the new Ministry takes a minimalist view of its responsibility, and reduces itself to dealing with only such schemes (such as distribution of scholarships and grants to NGOs) that are totally outside the purview of the existing Ministries. Such ostrich like attitude defeats the purpose for which the Ministry is created. It is rather sad that the Ministry of Tribal Affairs is more concerned with spending its budget (through NGOs that create opportunities for clientelism and patronage), and less with the impact of overall policies of other Ministries on tribals. It is surrounded by reportedly manipulative NGOs who hog the entire attention and time of the senior officers, leaving little time with them for the real pressing tribal distress. This attitude results in continuing neglect of tribal issues. It also under-plays the role

of non-monetary policies (such as displacement) and the impact they have on the lives of the people. For instance, MFP policies in the states are often dictated by the desire to maximise state revenues, and not maximise welfare of gatherers, who are often women. The revenue interest of Orissa can be judged by the fact that during the period 19892001, the State Government earned revenues of Rs 7.52 billion from kendu leaves (KL). The total wages earned by KL pluckers during the same period was only Rs 3.87 billion. The high incidence of royalties on KL needs to be contrasted with the royalties collected on a major mineral, where labour is organised, e.g. royalties are Rs 30 per tonne on bauxite, but a whopping Rs 12,000/tonne on KL! Even the Planning Commission does not monitor regularly the impact of existing policies on the tribal population and pull up the concerned sectoral Ministries.

There seems to be an obsession in Government of India with financial budget and not with the impact that policies (or the lack of it) have on the marginalised peoples. Policies and budgetary provisions, despite the rhetoric, have not been integrated so far. Changes in policy or laws, are not seen as an integral part of the development process because these have no direct financial implications. One lesser known reason for this isolation is that development and planning in India are associated with spending of money. That Planning means Expenditure, and this will lead to Development is the mindset behind such beliefs. The Indian planner unfortunately has still to understand the difference between planning and budgeting. This is where a systemic change is needed in India. In addition to spending budgets, we need to give equal importance to non-monetary issues such as institutions, laws, and policies. q
(E-mail :naresh.saxena@gmail.com)

Yojana
Forthcoming Issues
May 2011 Handlooms and Handicrafts June 2011 Aadhar

May 2011 & June 2011

YOJANA April 2011

YOJANA April 2011

YE-4/11/3

Rights and Justice

Perspective

Providing an Improved Environment for Human Rights in The Country

Justice K G Balakrishnan

While human rights institutions like the NHRC have a significant role in the promotion and protection of human rights, the contributions of civil society actors and the state are just as crucial

n informed discussion on how to provide an improved environment for human rights in the country, and how to achieve social justice through human rights is very necessary. Social justice, as the American philosopher John Rawls pointed out, is predicated on the idea that a society can be regarded as egalitarian only when it is based on principles of equality and solidarity, where human rights are valued and the dignity of every individual upheld. A just society is one which provides a degree of protection to its weaker, differently-abled and less gifted members. It is not one where the law of the jungle prevails, where might is right. In a civilized society, reasonable constraints are placed on the ambitions

and acquisitiveness of its more aggressive members and special safeguards provided to its weaker and more vulnerable sections. These considerations are basic to any scheme of social justice and their neglect will brutalize society. In a limited sense, the right to social justice may be said to be the right of the weak, aged, destitute, poor, women, children and other underprivileged persons, to the protection of the State against the ruthless competition of life. It is a bundle of rights, in another sense it is a preserver of other rights. It is the balancing wheel between haves and have-nots. Our Constitution makers were fully alive to the need for providing safeguards to the weaker sections of society as is evident from the Preamble to the Constitution and Part IV of the Constitution, that is,

The author is Former Chief Justice of India & Chairperson, NHRC 10 YOJANA April 2011

the Directive Principles of State Policy. Social justice has become a pressing issue across the world, especially in the larger context of globalization, which is altering traditional roles and relationships between states and their citizens and throwing up multiple challenges to the realization of socio-economic justice, whether in the form of the devastating financial crisis, the rising cost of essential food commodities, or the growing influence of transnational bodies such as the WTO, IMF, World Bank and Multinational Corporations. Human rights have been recognized as standards of achievements and norms of behaviors of all members of society, in particular the Government and its agencies. Human Rights form the foundation of society, and without its observance, society would disintegrate. Society can be maintained only by protecting and promoting dignity of human beings. The basic Charter of Human Rights is found in Magna Carta, American War of Independence and French Revolution. They were mostly in the form of negative rights, i.e., State shall not interfere with the enjoyment of certain basic rights. But after the Second World War, attempts were made to build an international system so that holocaust of war was not
YOJANA April 2011

repeated. This system wanted to protect civil and political rights of people and ensure that all nations were committed to this. At the same time, the international community also had the obligation of fulfilling certain positive rights, like economic, social and cultural rights. These positive rights required positive action involving the use of resources and in 1948, Universal Declaration of Human Rights was adopted by the United Nations which included both civil and political rights as well as economic, social and cultural rights. It was realized that the distinction between the civil and political rights and economic, social and cultural rights was artificial and thin. Human rights needed to be considered in totality as human dignity is by its nature indivisible. It was not enough merely to protect individual rights like civil, political, economic etc, without looking at the whole picture, as people were doing. We needed protection that was sustainable. Adequate steps needed be taken to build up mechanisms to safeguard these human rights in entirety. The developing countries sought for an equal status with other nations. This led to the Declaration of Right to Development in 1986, which was adopted by the United

Nations with an overwhelming majority, defining development as a composite right where all human rights civil, political, economic, social, cultural as well as other rights such as the rights of children and women, are realized. Thus human rights were given new a dimension and content. Development was described as comprehensive economic, social and political process where all rights can be realized, and not merely as increase of GDP or rise in volume of employment or export promotion. Development necessarily entails economic growth, but this growth has to be equitable, participatory, accountable and transparent. The right to development is something which cannot be realized immediately. Right to food, health, education, employment, standards of living need to be realized progressively in phased manner, summing up to the right to development, and ultimately to human development. Human development means expansion of freedom and ensuring peoples ability to lead lives of their choice, with the removal of obstacle such as hunger, malnutrition, illhealth, illiteracy and economic insecurities. The pursuit of social justice has become imperative in this day and age. However, while governments find it increasingly difficult to deny citizens their
11

basic rights, there are deepseated and well-entrenched socioeconomic structures that continue to pose a colossal challenge to the realization of a just and equitable social order. Broadly speaking, social justice stems from the idea that all human beings are entitled to the fulfillment of certain basic needs and rights, regardless of their social differences such as economic disparity, class, gender, race, ethnicity, religion, age, sexual orientation, disability or health. ( Neo Simutanyi. 2008. The African Debate on Social Justice. Paper presented to the Friedrich Ebert Stiftung-Tanzania/ Chama Cha Mapinduzi Youth League Regional Forum on Youth Perspectives and Social Justice, Dar es Salaam, Tanzania, 23-27 November 2008). While the Indian economy has grown at a phenomenal pace since independence, thanks to the introduction of new technology, modernization of agriculture, a nd rapid ind ustrialization; the question we need to ask ourselves is whether we have made as much progress in terms of human development. By human development, I mean widening and deepening the scope of freedoms available to all people without exception and guaranteeing them their right to dignified and meaningful existence. We need to ask ourselves if the citizens of this country live with freedom from
12

fear, repression, discrimination, exploitation, hunger, and poverty, and participate in public life as free-willed and equal citizens, or if certain sections and communities of people continue to face economic marginalization and social exclusion? In terms of human development indicators, the South Asian region has a dismal record. The Millennium Development Goals Report 2008 has estimated that mounting food prices are likely to push as many as 100 million people in absolute poverty, mostly in Sub-Saharan Africa and Southern Asia, already regions with the largest numbers of people living in extreme poverty. According to the 2008 Global Hunger Index (GHI) Report, Sub-Saharan Africa and South Asia share the highest regional Hunger Index scores, making poverty and hunger levels in these regions alarming. This fact is further corroborated by the Multidimensional Poverty Index (MPI), developed by the Oxford Poverty and Human Development Initiative in collaboration with the UNDP, according to which eight Indian states including Bihar, Uttar Pradesh, West Bengal, together account for more poor people than in the 26 poorest African Nations combined( Times of India. 12 July 2010). The NHRC has also been closely monitoring the case of starvation deaths reported earlier this year

from the Koraput, Bolangir and Kalahandi (KBK) districts of Orissa. While it is widely recognized that no social phenomenon is as full in its attack on human rights as poverty, there are several other social and economic inequalities that exist, which deny individuals their fundamental rights and in turn prevent them from living full, meaningful lives. These inequities often reflect themselves in what the political scientist Johan Galtung, famously described as structural violence, which is a reference to a form of violence based on the systematic ways in which the existence of certain social structures or institutions harm people by preventing them from meeting their basic needs. Institutionalized casteism, sexism, and elitism are just some examples of the various forms of structural violence. Despite these challenges, h o w e v e r, t h e r e i s a l s o a concomitant and encouraging move towards recognizing an ever-increasing number of rights, which are deemed necessary for living a dignified and full life. The ambit of social justice has gradually expanded to include among other rights, the right to healthcare, education, food, forest rights for indigenous communities, and policy-level interventions in the form of affirmative action
YOJANA April 2011

for the historically marginalized and discriminated communities. F u r t h e r, i s s u e s o f g e n d e r, youth and the disabled are also increasingly being viewed as social justice issues requiring policy interventions. While historically, all religions have preached the equality of individuals and fair treatment, it was the Universal Declaration of Human Rights (UDHR), which perhaps for the first time, formally acknowledged the importance of legally guaranteeing and protecting human rights of people across national divides. The UDHR together with the International Covenant on Social and Economic Rights and the International Covenant on Civil and Political Rights, contain progressive provisions that aim at promoting social justice globally. Historians would certainly describe the last few decades as the age of corruption and kickbacks. Unprecedented corruption, a proliferation of scams, growing involvement of public servants occupying apex positions and media reports about huge amount of money hoarded in foreign banks, would all justify the categorization. Naturally, the rights of the common man are dented. The Prime Ministers recent assertion to the Chief Secretaries during a recent interaction with them, to take
YOJANA April 2011

on corruption vigorously, and the Home Ministers observation over the deficit in governance and ethics ongoing since long, are an expression of common mans concern & sufferings. Unequivocally the other malignant contributors towards human rights violations are persisting ethnic, religious and political tensions aggravated by weak institutions of civil society. The call of the hour is for an integrated approach to cleanse the system for establishing an atmosphere conducive to respect, promotion and protection of human rights of all ensured by the Constitution of the country. The NHRC, in its short journey of over 16 years, has relentlessly endeavoured to be at the vanguard of the battle to curb violations of human rights across the country and create an enabling environment for the realization of social and economic justice. In furtherance of its task to better protect and promote human rights, it has realized that failures in the sphere of human rights in economic, social and cultural areas are widespread across the nation and these denials drive the citizens to the margins of human existence. The struggle for the promotion and protection of human rights inevitably requires the elimination of aberrations that, over time, fragment society, leaving some more equal than others.

Efforts are thus essential to continue to be actively engaged in the protection and promotion of the rights of the weaker sections of the Society through various programmes such as social and educational empowerment, labour welfare, supplementary and continuing education, rehabilitation for the physically and mentally challenged, sustainable livelihood, and womens empowerment, among a host of others. While human rights institutions like the NHRC have a significant role in the promotion and protection of human rights in all spheres including social, economic, political and cultural, these can at best work as catalysts in assisting in efforts towards protecting and promoting human rights of the most vulnerable groups. The contributions of civil society actors and the state are just as crucial in this noble endeavour. In this regard, I believe the approach should be, think globally and act locally. It is only when we combine our efforts and energies in a symbiotic and enabling partnership that we will become, to quote Mahatma Gandhi, the change we wish to see.Let us draw inspiration from the lives of great men like Mahatma Gandhi in building a new India, a great India based on q social justice.
(E-mail : chairnhrc@nic.in) 13

Rights and Justice

Perspective

Evaluating the Status of Women Rights in India

Girija Vyas

Promoting empowerment requires that organisations review their structures and procedures to increase accountability and responsiveness to women whose empowerment they aim to support

here is no doubt that we are in the midst of a great revolution in the history of women. The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. While women in the West had to fight for over a century to get some of their basic rights, like the right to vote, the Constitution of India gave women equal rights with men from the beginning. Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive traditions.

context in all sectors particularly in respect of women in India. The Constitution of India guarantees equality of sexes and in fact grants special favours to women. These can be found in three articles of the Constitution. Article 14 says that the government shall not deny to any person equality before law or the equal protection of the laws. Article 15 declares that government shall not discriminate against any citizen on the ground of sex. Article 15 (3) makes a special provision enabling the State to make affirmative discriminations in favour of women. Moreover, the government can pass special laws in favour of women. Article 16 guarantees that no citizen shall be discriminated against in matters of public employment on the grounds of sex. Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief. Above

The words of Dr Ambedkar, father of the Indian Constitution on empowerment of women stands relevant in todays context. He had described that the best religion in the world is the one which teaches liberty, equality and fraternity these are undoubtedly true in todays

The author is Chairperson, National Commission for Women. 14 YOJANA April 2011

all, the Constitution imposes a fundamental duty on every citizen through Articles 15 (A) (e) to renounce the practices derogatory to the dignity of women. All these are fundamental rights. Therefore, a woman can go to the court if one is subjected to any discrimination. When we talk about constitutional rights of women in India, we mainly refer to those areas where there is a tradition or tendency for discrimination against women, and special laws have been formulated to fight those tendencies. The most important issues are those pertaining to marriage, children, abortion, crimes against women, and inheritance. Women have now not only found their place in work places but are also party to governance. In recent years there have been explicit moves to increase womens political participation. Women have been given representation in the Panchayati Raj system as a sign of political empowerment. There are many elected women representatives at the village council level. At the central and state levels too women are progressively making a difference. Today we have women Chief Ministers in five large states of India. The Womens Reservation Bill is slated to further strengthen political participation. Though these are some cases of political representation of women, the overall rate of actual representation of women at the Indian as well as at the international parliamentary level is not upto
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satisfaction. The world wide scenario in respect of representation of women is much below the expected and satisfactory levels. The statistics in regard to world parliamentarians indicate that there are 36,330 male MPs in the whole of world parliaments and female MPs are only 8, 437 which is only 18%. Regional representation of average of women MPs in American countries is 22%, Europe 19%, Asia 18.5%, Pacific countries 15.3, Arab States 9%. India has many women in decision making and leadership positions who can actually be role models for others. Our country was administered by a brave woman as its Prime Minister for more than a decade, a woman dignitary is heading UPA as its Honble Chairperson and the highest seat of the President of India is also presently adorned by a woman dignitary in addition to there being many women personalities as decision makers and Ministers in the government. Wo m e n e m p o w e r m e n t i s essentially a down to top process rather than a top-down strategy i.e the strategy for women empowerment should start from the gross root level. Genuine women empowerment also requires women to have a voice and role in decision making. Recent experience suggests that gender planners working towards empowerment must develop ways of enabling women themselves to decide what their gender interests are and how to bring about change. Promoting empowerment requires

that organisations review their structures and procedures to increase accountability and responsiveness to women whose empowerment they aim to support. Some of the main hurdles for the actual empowerment of women in India are ignorance and illiteracy. Among the real life problems that the grassroots women face are lack of experience, stereo typed cultural attitudes, lack of confidence, lack of economic empowerment and illiteracy, burden of domestic chores and ignorance of procedures and the law, weak linkages between the government and other machineries , weak delivery mechanisms, changing policy environment, lack of knowledge as to how to avail institutional support to address their issues. Though the governments, both at the centre and in the states have taken various steps to address the issue of empowerment of women, practical experience suggests that the actual progress made is very minimal. Unless awareness generation in this regard is taken up on a war footing by women groups and NGOs, no governmental effort would become a success. Hence the need of the hour is to create a campaign at all levels among the rural masses to spread the message of women power and to utilize the opportunities created by the government at various levels. This alone would help ensure that women are able to enjoy their rights fruitfully. q
(E-mail:chairpersonncw@yahoo.co.in) 15

Rights and Justice

Overview

Juvenile Justice System in India

Savita Bhakhry

The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements

he emergence of the concept of juvenile justice in India owes much to the developments that have taken place in western countries, especially in the perception of children and human rights jurisprudence in Europe and America. The Apprentices Act, 1850 was the first legislation that laid the foundation of juvenile justice system in the country. The concept consequently gained momentum with the enactment of the Indian Penal Code (1860), Reformatory Schools Act (1897), Code of Criminal Procedure (1898) and recommendations made by the Indian Jail Committee (1919-1920), which categorically mentioned that the child offender should be treated differently from an adult offender. It also held that imprisonment of child offenders should be prohibited and recommended for provision of reformatory schools and constitution

of childrens courts with procedures as informal and elastic as possible. The Committee also drew attention to the desirability of making provisions and special enactment for children who had not committed crime so far, but could do so in the near future on account of living in criminal or inhuman surroundings or those without proper guardians or homes. The Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal and Bombay in 1922 and 1924, respectively. Later, many more states enacted their own Children Acts, covering within their sphere two categories of children, viz., (i) delinquent children, and (ii) destitute and neglected children. Both these categories of children were to be handled by the juvenile courts. They were to be kept in remand homes and certified schools or released on probation, with a possibility of imprisonment when

The author is a Senior Research Officer in the National Human Rights Commission of India. 16 YOJANA April 2011

the nature of offence was serious and the character of the offender so depraved as to justify imprisonment (Ved Kumari: 2004). During this period, by and large, the welfare approach was adopted for children whether delinquent, destitute or neglected. Development of Juvenile Justice System in India Independence ushered in a new era for children in the country. The Constitution of India took care of survival, development and protection needs of children by making relevant provisions in Fundamental Rights and Directive Principles of State Policy. Children Act 1960 The special status accorded to children in the Constitution and the fact that there was a substantial growth in the number of destitute, neglected and delinquent children in the wake of partition, saw some special programmes being taken up to meet the needs of this group of children during the First Five-Year Plan. Industrialization coupled with urbanization further brought forth its own set of problems for children. One of them was increase in cases of juvenile delinquency in large cities, the most common offence being theft. As legislation for dealing with delinquent children existed only in few states, the Government of India enacted the Children Act 1960. The Act, however, was applicable only to the Union Territories as it was a model to be followed by the states in the enactment of their respective Children Acts. The 1960 Children Act, provided for the care, protection, maintenance,
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welfare, training, education and rehabilitation of neglected and delinquent children. For the first time in India, the Children Act prohibited the imprisonment of children under any circumstance. It provided for separate adjudicatory bodies a children court and a child welfare board to deal with delinquent and neglected children. The Act also introduced a system of three-tier institutions, namely, an observation home for receiving children during the pendency of their proceedings, a childrens home for accommodating neglected children, and a special school for delinquent children. It, however, introduced a sex discriminatory definition of child. Child in case of a boy was one who was below 16 years and in case of a girl below 18 years of age. All states subsequently enacted similar, but not exactly the same Children Acts. The definition of the term child differed from state to state. As a result, delinquent and neglected children were subjected to differential treatment emanating from the diverse conceptions of child and childhood. Juvenile Justice Act 1986 The need for a uniform Children Act across the country paved the way for the enactment of the 1986 Juvenile Justice Act (JJA). It promoted the best interest of the juveniles by incorporating into its fold not only the major provisions and clauses of the Indian Constitution and the 1974 National Policy Resolution for Children but also the universally agreed principles and standards for the protection of juveniles

such as the 1959 United Nations Declaration of the Rights of the Child and the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules). The JJA overruled imprisonment of juveniles in police lock-up or jail. Other than this, it stipulated two main authorities a juvenile welfare board and a juvenile court to deal with neglected and delinquent juveniles. It also stipulated establishment of various kinds of institutions for the care of juveniles a juvenile home for the reception of neglected juveniles, a special home for the reception of delinquent juveniles, an observation home for the temporary reception of juveniles during the pendency of any inquiry regarding them, and an after-care home for the purpose of taking care of juveniles after they were discharged from a juvenile home or a special home. It further guaranteed a wide range of dispositional alternatives with preference for family or community-based placement, and a vigorous involvement of voluntary agencies at various stages of the juvenile justice process. The basic ideology for adopting this differential approach was to save children from devastating ill-effects of criminalization, penalization and stigmatization. With the enactment of the JJA, the welfare approach gave way to the justice paradigm (Maharukh Adenwalla: 2006). But the implementation of the JJA had many loopholes in terms of age determination, separate trials, court proceedings, notification of charges to parents or guardians, filing of reports by probation
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officers, reasons for and length of confinement, rehabilitation and after care of juveniles. The juveniles were often not provided with a copy of the rules governing their detention and the written description of their rights. Many juveniles housed in institutions run by the government did not know the purpose of their stay and the future of their institutionalization. Like the 1960 Children Act, the JJA too promoted a sex discriminatory definition of a juvenile. Moreover, most of the states and union territories who had formulated their Rules for the implementation of the JJA were devoid of the basic infrastructure consisting of juvenile welfare boards, juvenile courts, observation homes, juvenile homes, special homes and after care homes. They had also not taken up the required measures for observance of minimum standards for institutional care or for the advancement of noninstitutional care, such as foster care, sponsorship, adoption, etc. The chasm between reality and the application of the law was felt all the more with the adoption of the 1989 Convention on the Rights of the Child (CRC) and its ratification by the Government of India in 1992. The provisions of the CRC with regard to children in conflict with law were amplified in two other United Nations instruments - the United Nations Guidelines for the Administration of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules). Both provide detailed directions about the processes to be followed by the
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juvenile justice system in dealing with persons below the age of 18. The 1993 World Conference on Human Rights in Vienna and the successive adoption of Vienna Declaration and Programme of Action which urged States to ratify and implement promptly the CRC too made a definitive impact on all those concerned with the plight of these children in India including the government. Juvenile Justice (Care & Protection of Children) Act 2000 Taking a cue from all these developments, the government recast the JJA so that it could be in consonance with the CRC and brought in a new Act, the 2000 Juvenile Justice (Care & Protection of Children) Act. The passing of this Act endorsed the justice as well as the rights approach towards children and moreover made use of a better terminology by providing for juveniles in conflict with law and children in need of care and protection. It calls for keeping both the categories separate pending their inquiries. This segregation aims to curb the bad influence on the child who is in need of care and protection from the one who is in conflict with law. The JJA 2000 brings about standardization in the definition of a juvenile or a child across the country except for Jammu and Kashmir. A juvenile or child is a person who has not completed eighteenth year of age. Juveniles in conflict with law include all those children alleged to or found to have committed an offence. They are to be handled by the juvenile justice board. Children

in need of care and protection cover a range of at risk children to be dealt by child welfare committee. While dealing with juveniles and children, it gave importance to their respective families for tendering of advice and counselling. It furthermore introduced a wide range of community placement options for juveniles and children. The 2000 Act, though passed with good intentions, overlooked the inclusion of certain substantive and procedural due process rights. Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006 JJA 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from the date of commission of offence who have not completed eighteenth year of age thus clarifying ambiguities raised in Arnit Das vs State of Bihar [(2000] 5 SCC 488]. The amendment also made it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail. In addition, it stipulated that the Chief Judicial Magistrate or the Chief Metropolitan Magistrate is to review the pendency of cases of the Board at every six months, and child protection units should be set up in states and districts to see to the implementation of the Act. National Human Rights Commission and Measures for Juvenile Justice System The National Human Rights Commission (NHRC) is an embodiment of Indias concern for the promotion and protection
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of human rights. Ever since the NHRC came into existence, it has been concerned about the plight of juveniles who come in conflict with law and children who are in need of care and protection. While the Law Division of the NHRC has been dealing with complaints; the Policy Research, Projects and Programmes Division of the NHRC has been monitoring the implementation of the related Act at the national level as well as studying and recommending effective application of those international instruments that intend to improve the overall functioning of the juvenile justice system in the country. Some instances of NHRC intervention in this regard are given below. Deaths and Rapes in Homes set up under JJA 1986 In September 1996, the NHRC called for information with regard to incidents of deaths and rapes in Homes set-up under the JJA 1986 within 24 hours of its occurrence by writing to the Chief Secretaries/Administrators of all the States/Union Territories. Later, in February 2002, the NHRC modified its existing instructions on the subject directing that an inquest by a Magistrate be conducted immediately in all cases of deaths in Homes and the report including comments on possible medical negligence to be sent to the NHRC. In case of any allegation of rape/unnatural offence on any inmate of the Home, a criminal case should be registered immediately against the offending staff member/ officer and a copy of the FIR
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and the supervision note should invariably be sent to the NHRC. If any foul play is suspected in the magisterial inquest, the post-mortem examination should invariably be done and the post-mortem report sent to the NHRC. In all cases of death of an inmate where the initial inquest by a Magistrate indicates some foul-play, magisterial inquiry should be made mandatory. Escape of Inmates from Juvenile Homes Under this broad head, the NHRC dealt with 87 cases, where its attention was drawn to the escape of several inmates from the Beggars Homes/Juvenile Homes/Remand Homes situated in different parts of Maharashtra. The Commission pointed out that it was the state governments duty to take appropriate measures for the safe custody of the inmates. The escape of such a large number of inmates was indicative of the fact that there were either serious infrastructural deficiencies or that security arrangements were faulty. The Commission directed that the state chief secretary should review the functioning of these homes with a view to ensuring better care and avoiding the recurrence of circumstances leading to such incidents (NHRC: Annual Report 1998-1999). Illegal Detention of a Three-yearold Child for Ten Years A former Member of Parliament drew the attention of the NHRC to the plight of a young girl who had witnessed a murder, and was thereafter, detained in

police custody for about ten years. The NHRC immediately took note of the letter and called for a report from the Director General of Police, West Bengal. The report of the Director General of Police stated that on 30 March 1990, the learned Magistrate, Nadia had ordered that one child, who was an eyewitness in a case in which her father had allegedly murdered her mother, should be lodged at Liluaha Home and produced in the court, as and when required. She was last produced in the court on 20 September 1996, wherein she failed to identify the accused. In 1992, she was shifted from Liluaha Home to a Child Care Home (run by an NGO) on the orders of an IAS Officer who was also the exofficio Director of Social Welfare Department, West Bengal, for proper upkeep, schooling, protection, care and further rehabilitation of the concerned child. However, when the said NGO approached the learned court for approval of transfer, the learned Sessions Judge termed the act as highly irregular and asked for an explanation from the Director of Social Welfare for having transferred the child without prior approval and intimation to the court. Subsequently, she was again sent back to Liluaha Home. Through its memo dated 1 September 1997, the Social Welfare Department once more directed transfer of the child to a government approved/recognized NGO Child Care Home for her education, care and rehabilitation. The report stated that the court had not passed any order so far. The Commission expressed its shock at the inhuman and apathetic
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manner in which the case was handled by the police and other authorities. It found the very idea of retaining a girl child, who was only three years old at the time of the incident, and considering her competent to be a witness in a court of law, and keeping her waiting for the commencement of the trial for ten long years, as shocking. The appalling lack of interest shown by the authorities in the welfare of the innocent child resulted in depriving her of her normal childhood which could never be regained. No amount of compensation, the Commission felt, would be adequate for the loss she had suffered. However, it recommended to the Government of West Bengal to ensure that the child is suitably rehabilitated and educated in an SOS Childrens Home or sent to a reputable institute run by an NGO in or around the city of Calcutta, till she became a major. The Commission also recommended that a sum of Rs.50,000/- be deposited in her name through a court guardian, the interest of which would be paid to the institute looking after her, and the principal amount to be rel eased to her on her becoming a major to enable her to settle in life. Thereafter, a compliance report from the Government of West Bengal was received in the matter (NHRC: Annual Report 1999-2000). Other Measures In October 2005, when the Registrar General of the High Court of Patna informed the NHRC that the implementation of the JJA 2000 was extremely poor in Bihar, the NHRC once again directed that
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the matter of juvenile justice be reviewed expeditiously in each state and union territory. Prior to this, the NHRC in collaboration with an NGO (Socio-Legal Information Centre, New Delhi) had undertaken a study concerning the implementation of the JJA 2000 in 16 states. Its findings revealed that the implementation of the JJA 2000 was poor in all its aspects and needed to be strengthened. The NHRC organized a two-day National Conference on Juvenile Justice System in India on 3 and 4 February 2007 in New Delhi. The Conference made a number of recommendations/suggestions to improve the functioning of the juvenile justice system in the country. It laid stress on the implementation of the JJA 2006 in both letter and spirit, urging the states/union territories to establish the required infrastructure under the juvenile justice system to ensure that there is zero pendency and that the inquiry is completed within the stipulated period. It also emphasized on providing requisite care to ensure protection, growth and development of children, both in conflict with law and in need of care and protection. Conclusion Undoubtedly, juveniles in conflict with law and children in need of care and protection are defenseless and they need special protection. The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements. They are more prone to human

rights violations at the hands of state agencies, their own family and community in the form of arbitrary detention, cruel punishments, torture and abuse. In recent years, the problems of children in need of care and protection and those in conflict with law has been receiving considerable attention both of the government, NHRC, social activists as well as the civil society at large. But, the problems encountered by them are of gigantic nature and all that is being done is not sufficient. If the problems faced by them are not taken into account, we as a society would be failing in our duties. It is therefore of paramount importance that as a society we must devote full attention to ensure that they are properly cared for so that they have their rightful place in the society. For this to happen, there is need to spread awareness on the problems faced by them as well as build-up the capacities of all those dealing with them. The Integrated Child Protection Scheme (ICPS) of the Ministry of Women and Child Development, Government of India that was launched during the on-going Eleventh Five Year Plan (20072012) is a welcome step in this direction. The ICPS encompasses the existing schemes of (i) Integrated Programme for Street Children, (ii) Shishu Greha Scheme, (iii) Programme for Juvenile Justice, etc. The focus of the ICPS is on child protection and is the shared responsibility of the government, family, community and civil q society.
(E-mail:sro-nhrc@nic.in) YOJANA April 2011

Rights and Justice

Opinion

Right to Corruption Free Governance

Arvind Kejriwal

We need a complete overhaul of our anti-corruption set up if we are serious about tackling corruption

hy is i t t h a t hardly anyone goes to jail despite overwhelming evidence against corruption in public domain? Because we have such anticorruption laws and agencies, which cant work on paper itself. At the centre, we have CVC, which though independent, is an advisory body. Predictably, whenever the advice is against a senior officer, it is rarely accepted. According to one former CVC, during his tenure, whenever he felt that the officer ought to go to jail or needed to be dismissed from the job, he was let off with a warning. CBI, though independent, is completely under the control of the government. Before starting any investigation or before prosecuting any officer or politician, it has to take permission from the government,

which often runs on the support of those who have to be investigated or prosecuted. The anti-corruption machinery at state level is similarly compromised. They are either in the control of the state government or merely advisory in nature. Likewise, our anti-corruption laws are highly inadequate. You would be shocked to know that even when a person is convicted of corruption, there is no provision to recover the loss that he caused to the government or to confiscate his ill gotten wealth. He can actually come out of jail and enjoy the bribe money! Therefore, we need a complete overhaul of our anti-corruption set up if we are serious about tackling corruption. Many people ask me Can India turn around? I feel Indians

The author is eminent RTI and anti-corruption activist and Ramon Magsaysay Award winner. YOJANA April 2011 21

are by and large honest, intelligent and hard working people. They are victims of a rotten system. There was much worse corruption in Hong Kong in 1970s than we have in India today. Collusion between police and mafia increased and crime rate went up. Lakhs of people came on the streets. As a result, the government was forced to set up an Independent Commission Against Corruption (ICAC), which was given complete powers. In the first instance, ICAC sacked 119 out of 180 police officers. This sent a strong message to the bureaucracy that corruption would not be tolerated. Today, Hong Kong has one of the most honest governance machinery. India can also turn around if we had similar anti-corruption body. One thought that so much public anger was a great political opportunity for a sincere government to push for radical reforms of anti-corruption systems. However, public criticism seems to have made little difference to the present government. For the Lokpal Bill drafted by the government, which is being touted as an antidote to corruption, is an insult to the whole nation. Rather than strengthening anti corruption systems, this bill if passed, will end up weakening whatever exists in the name of anti corruption today. The principal objections to the governments proposal are as follows:
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1. Lokpal will not have any power to either initiate action suo motu in any case or even receive complaints of corruption from general public. The general public will make complaints to the speaker of Lok Sabha or chairperson of Rajya Sabha. Only those complaints forwarded by Speaker of Lok Sabha/ Chairperson of Rajya Sabha to Lokpal would be investigated by Lokpal. This not only severely restricts the functioning of Lokpal, it also provides a tool in the hands of the ruling party to have only those cases referred to Lokpal which pertain to political opponents (since speaker is always from the ruling party). It will also provide a tool in the hands of the ruling party to protect its own politicians. 2. Lokpal has been proposed to be an advisory body. Lokpal, after enquiry in any case, will forward its report to the competent authority. The competent authority will have final powers to decide whether to take action on Lokpals report or not. In the case of cabinet ministers, the competent authority is Prime Minister. In the case of PM and MPs the competent authority is Lok Sabha or Rajya Sabha, as the case may

be. In the coalition era when the government of the day depends upon the support of its political partners, it will be impossible for the PM to act against any of his cabinet ministers on the basis of Lokpals report. If the Lokpal made a report against the PM or any MP of the ruling party, will the house ever pass a resolution to prosecute the PM or the ruling party MP? Obviously, they will never do that. 3. The bill is legally unsound. Lokpal has not been given police powers. Therefore Lokpal cannot register an FIR. Therefore all the enquiries conducted by Lokpal will tantamount to preliminary enquiries. Even if the report of Lokpal is accepted, who will file the chargesheet in the court? Who will initiate prosecution? Who will appoint the prosecution lawyer? The entire bill is silent on that. 4. The bill does not say what will be the role of CBI after this bill. Can CBI and Lokpal investigate the same case or CBI will lose its powers to investigate politicians? If the latter is true, then this bill is meant to completely insulate politicians from any investigations whatsoever which are possible today through CBI.
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5. There is a strong punishment for frivolous complaints. If any complaint is found to be false and frivolous, Lokpal will have the power to send the complainant to jail through summary trial but if the complaint were found to be true, the Lokpal will not have the power to send the corrupt politicians to jail! So the bill appears to be meant to browbeat, threaten and discourage those fighting against corruption. 6. Lokpal will have jurisdiction only on MPs, ministers and PM. It will not have jurisdiction over officers. The officers and politicians do not indulge in corruption separately. In any case of corruption, there is always an involvement of both of them. So according to governments proposal, every case would need to be investigated by both CVC and Lokpal. So now, in each case, CVC will look into the role of bureaucrats while Lokpal will look into the role of politicians. Obviously the case records will be with one agency and the way government functions it will not share its records with the other agency. It is also possible that in the same case the two agencies arrive at completely opposite conclusions. Therefore it
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appears to be a sure way of killing any case. 7. Lokpal will consist of three members, all of them being retired judges. There is no reason why the choice should be restricted to judiciary. By creating so many post retirement posts for judges, the government will make the retiring judges vulnerable to government influences just before retirement as is already happening in the case of retiring bureaucrats. The retiring judges, in the hope of getting post retirement employment would do the bidding of the government in their last few years. 8. The selection committee consists of Vice President, PM, Leaders of both houses, Leaders of opposition in both houses, Law Minister and Home minister. Barring Vice President, all of them are politicians whose corruption Lokpal is supposed to investigate. So there is a direct conflict of interest. Also selection committee is heavily loaded in favour of the ruling party. Effectively ruling party will make the final selections. And obviously ruling party will never appoint strong and effective Lokpal. 9. Lokpal will not have powers to investigate any case against PM, which deals with foreign

affairs, security and defence. This means that corruption in defence deals will be out of any scrutiny whatsoever. On the face of it, governments Bill sounds absurd. It is meant to completely insulate the political class from any kind of action. In contrast, civil Society has drafted an alternate Jan Lokpal Bill. The first draft was prepared by Prashant Bhushan, Justice Santosh Hegde and myself. The Bill has subsequently been discussed widely at several public platforms and improved on the basis of public feedback. It has been vetted and is being supported by Kiran Bedi, Shanti Bhushan, Anna Hazare, National Campaign for Peoples Right to Information (NCPRI) and many others. The entire text of the B i l l i s a v a i l a b l e a t w w w. indiaagainstcorruption.org Similar independent bodies called Jan Lokayuktas have been suggested for states. The existing Lokayuktas in some states are advisory and ineffective. How will the proposed system help in curbing corruption? For this see Chart-1. A copy of this Bill was sent to the government almost two months back, there has been no response so far. The Government would be well advised to adopt the Jan Lokpal Bill and get the country rid of corruption.
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Chart-1
Existing System No politician or senior officer ever goes to jail despite huge evidence because Anti Corruption Branch (ACB) and CBI directly come under the government. Before starting investigation or initiating prosecution in any case, they have to take permission from the same bosses, against whom the case has to be investigated. System Proposed by civil society Lokpal at centre and Lokayukta at state level will be independent bodies. ACB and CBI will be merged into these bodies. They will have power to initiate investigations and prosecution against any officer or politician without needing anyones permission. Investigation should be completed within 1 year and trial to get over in next 1 year. Within two years, the corrupt should go to jail. Lokpal and Lokayukta will have complete powers to order dismissal of a corrupt officer. CVC and all departmental vigilance will be merged into Lokpal and state vigilance will be merged into Lokayukta.

No corrupt officer is dismissed from the job because Central Vigilance Commission, which is supposed to dismiss corrupt officers, is only an advisory body. Whenever it advises government to dismiss any senior corrupt officer, its advice is never implemented. No action is taken against corrupt judges because permission is required from the Chief Justice of India to even register an FIR against corrupt judges. Nowhere to go - People expose corruption but no action is taken on their complaints. CBI and vigilance departments lack transparency. Their functioning is so secret that it encourages corruption within these agencies.

Lokpal & Lokayukta shall have powers to investigate and prosecute any judge without needing anyones permission. Lokpal & Lokayukta will have to enquire into and hear every complaint. All investigations in Lokpal & Lokayukta shall be transparent. After completion of investigation, all case records shall be open to public. Complaint against any staff of Lokpal & Lokayukta shall be enquired and punishment announced within two months. Politicians will have absolutely no say in selections of Chairperson and members of Lokpal & Lokayukta. Selections will take place through a transparent and public participatory process. Lokpal & Lokayukta will get public grievances resolved in time bound manner, impose a penalty of Rs 250 per day of delay to be deducted from the salary of guilty officer and award that amount as compensation to the aggrieved citizen. Loss caused to the government due to corruption will be recovered from all accused. Enhanced punishment - The punishment would be minimum 5 years and maximum of life imprisonment.

Weak and corrupt people are appointed as heads of anti-corruption agencies.

Citizens face harassmen t in government offices. Sometimes they are forced to pay bribes. One can only complaint to senior officers. Hardly any action is taken on complaints because often senior officers also get their cut. Nothing in law to recover ill gotten wealth. A corrupt person can come out of jail and enjoy that money. Small punishment for corruption- Punishment for corruption is minimum 6 months and maximum 7 years.

q
(E-mail :parivartan_india@rediffmail.com)

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YOJANA April 2011

Best Practices

A journey of a different kind

Kunzang Dolma

But gradually many of those who were concerned with issues of the disabled felt that a rights-based approach needs to be adopted

t has been a long journey for me, growing up in Ladakh and having all the aspirations of any ordinary girl who wants a happy life. Not for a moment did I imagine that I would find this happiness amongst the disabled people in Ladakh, who struggle not only with the hard life in this icy desert terrain but with their own compromised abilities, seeking a life of dignity which so many of us take for granted.

them, I gradually realized that many amongst them were unable to speak; some who could, spoke in a garbled way. Suddenly the world that is inhabited by disabled people became a reality for me, an uncomfortable reality. I was amongst them, yet not part of them. And frankly, in those initial moments, I was terrified. It is difficult to explain why, but that was the dominant emotion in me. It was as if I was confronting an ugly reality not outside but within, a reality that everyone outside me could see . The beginning of the session started with a prayer, which, because of all these thoughts churning inside me, I was unable to recite. All I could do was close my eyes and listen and follow the hum of the recitation, which was happening in unison of voices around me. Then suddenly it stopped and there was absolute silence. In that silence I came to an understanding. In a flash, it came to me, that it
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The turning point as I can now see was my participation in a training programme by a disability organisation around 10 years ago. It was essentially an exposure and sharing of information about the disability sector of which I had knowledge. As I watched, the hall where it was being held slowly became filled with so many people; many of them on wheel chairs and some of them walking with the support of crutches. As I observed

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is not they who are disabled. It was I who was mentally disabled, clouded by my own prejudices, by an unfounded fear and perhaps a misplaced sense of what constitutes perfection. It was clear that I had a long way to go in my own evolution, beginning now! That was the day that I, a young girl decided to devote my life to the cause of disability in my region, Ladakh Over the last ten years, I have made an attempt to understand the issues related to disability and started working closely with the people. I realized that much of the world has closed their doors and hearts to the disabled people. I started to understand their capabilities and the fact that they have the potential to do all the work that the able-bodied people can do. Given an opportunity, they are capable of achieving everything in their lives. My journey, my search was greatly enriched by like- minded groups and individuals with great commitment and vision to create a world of equal opportunities, of dignity of the disabled. I was associated with the Namgyal Institute for Research on Ladakhi Art and Culture (NIRLAC) which had a unit to promote disability issues. But gradually many of those who were concerned with issues of the disabled felt that a rights-based approach needs to be adopted. One that would treat facilities and special provisions for the disabled not as a favour or largesse by the government but by
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virtue of inalienable rights granted under our Constitution and the rights framework formulated by national and international conventions. Under PAGAR, Peoples Action Group for Advocacy and Rights, we regrouped to begin our work for being treated at par with all others in terms of opportunities. The work took me to remote villages in Ladakh. It was during this that I realized that the discomfort I had initially felt in that hall surrounded with people of varying disability was an emotion that was widespread. People were hiding their disabled children and I realized it is because of social stigma attached to them. Disabled people hardly ventured out of their houses, again circumscribed by these prejudices in society. It was in the midst of this that we launched a village to village awareness campaign on disability, talking to people, disabled and abled alike and encouraging them to share their views and discuss. Gradually people opened up, questioning the very social mores that kept the disabled in a shroud of shame and secrecy. This was the beginning then of not only my own personal transformation but of a social transformation. Since then with time and effort, the disabled started participating in the mainstream activities in the villages. This did not happen overnight. It took more than six to seven years. But it gave us the energy to take the issue to another level, one that could effect change in the ground

situation. After all, there are a whole slew of issues that need to be addressed by those in authority to enable a life of self-reliance, of equal opportunities and dignity for the disabled. We began to do advocacy with the government authorities on education, health and employment issues related to disabled in Ladakh. This meant at the level of the LAHDC or the Ladakh Hill Development Council which is the Executive looking into all matters of governance and policy at the local level. At the state level, we needed to have links and direct our advocacy efforts at the J&K state government in Srinagar. Gradually, a momentum has been built up and people from across sectors have begun to recognize the movement. Still the road ahead is a difficult one. Public buildings in Ladakh are not built with access structures to facilitate movement of wheelchairs. Many laws only remain on paper. I have over time realized that the problem is basically in the mind-set . It is something that I too had and struggled to overcome. If society or at least some people begin to view the disabled differently then it will naturally follow that they will be treated with dignity and at par. So something fundamental needs to change in the hearts and minds of the people. If we create space there, then, in the same way that we take care of our children and old people in our families, the world will open out to accept disabled people and ensure their full participation in society.
Charkha Features YOJANA April 2011

Rights and Justice

Overview

Human Rights Law in India: Right to Water and Social Justice

Sarasu Esther Thomas

A law on paper is not adequate, though it is a beginning. The implementation of any law must also take into account ground level realities with strategies to deal with them

he question of a human right is often a chicken and the egg situation. What comes first- the chicken or the egg? may be analogous to what comes first- the law or the right. The right to water is one such area where there is no clear answer and there is a need to recognize the right to water without having to rely on provisions of black letter law. While the human right to water is being increasingly recognized in international human rights law, it also needs recognition at the domestic level.

Mission at the institutional level and the Accelerated Rural Water Supply Programme Guidelines at the policy level have greatly contributed to the attention received to access to water issues. The Guidelines specify 40 litres per capita per day as a minimum requirement only for the purpose of drinking and household needs. This is divided into the following categories and the amount may increase in cases of cattle in dry areas. The water must be of adequate quality as well as quantity.
Purpose Drinking Cooking Bathing Washing utensils & house Ablution Quantity 3 5 15 7 10

The States commitment to access to water There are a number of schemes and implementing machinery to provide for safe and accessible drinking water in India. The Rajiv Gandhi National Drinking Water

(Source ARWSP Guidelines http://ddws. nic.in/popups/arwsp_pop.htm accessed on 20.02.2011)

The author teaches Human Rights, Gender and Family Law at the National Law School of India University, Bangalore, India. She also teaches Water Law and Conflict at the Royal Institute of Technology at Stockholm, Sweden under the Linneaus-Palme Fellowship. YOJANA April 2011 27

However, schemes and policies of the state are not enough. There must be a clear statement of a human right to water so that it can be claimed as a right rather than a privilege which the state grants. The question which next arises is whether there is such a right in India. The right to water in the Constitution of India Most claims to human rights are founded on the basis of the fundamental rights chapter in the Constitution of India as fundamental rights are justiciable and can be enforced. The Preamble of the Constitution is often described as setting up a welfare State. While providing basic needs such as water would be within the necessary functions of such a state, the Fundamental Rights Chapter is silent about a right to food or water. While the right to life is mentioned (Article 21), the dimensions of this right are not laid down in detail and water is not mentioned. The only direct reference made is in the prohibition of discrimination (Article 15) in accessing places and facilities for the use of the general public including wells. In the Directive Principles of State Policy too, there are no direct references to a right to water although the state is required to work towards raising the standard of living of people and improving public health (Article 47). Also, since Directive Principles of State Policy are not justiciable, they
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become difficult to implement as a matter of right. The angle from which the Constitution deals with water is from the angle of division of powers between the Centre/ Union, the State and after 1992, the Local Government. Thus while standard setting on water pollution, insecticides and pesticides is with the Centre, interstate water disputes, irrigation is a State subject and so are important areas including sources of water such as groundwater. The Local Government has the power to make provision for water and to make rules at the local level on use of water. In this scheme of distribution of powers, there is no mention made of a right to water. Development of human rights law on right to water by the judiciary The architect of the right to water in India is the judiciary. Many rights have been brought within the ambit of the right to life (Article 21) by reading them into the scope of life . The first landmark decision was in Francis Coralie Mullin v the Administrator, Union Territory of Delhi(1981(2) SCR 516) where the Supreme Court clearly said that the right to life included the right to live with human dignity. It also made a passing observation that it also includes the bare necessaries of life. The right to water was not specifically mentioned. In 1990, the Kerala High Court stated in Attakoya Thangal v Union of India that the right to sweet water was part of the right to life

as water is necessary for life. This has been reiterated by High Courts and in many cases the Supreme Court as well, in a number of cases dealing with situations which adversely impacted the quality of drinking water. In the Narmada Bachao Andolan case ((2000) 10 SCC 664) the Supreme Court commented Water is the basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. It also linked this right to the recognized human right to water in international law documents which have provisions relating to access to adequate drinking water. The Supreme Court has also decided cases which have a bearing on water quality. These include areas such as water pollution, building/ construction/ mining which affected the water and so on. It has also given directions in the context of natural disasters such as floods and earthquakes. Thus. Courts have been concerned both with the protection of quantity and quality in dealing with cases with a bearing on the right to water in some form. Human Rights Law versus social realities in accessing the right to water A human right law on right to water, especially drinking water seems to be fast emerging. However,
YOJANA April 2011

a law by itself will not work, nor will programmes for targeted beneficiaries, unless it can be ensured that everyone benefits from the right in a meaningful way at the ground level. This is especially true when caste and communal realities are not taken into account. Two case studies will illustrate this. The first case deals with the adequacy of water quantity. In a village in Madhya Pradesh, a handpump was set up for the benefit of women from Scheduled Castes in order to facilitate their access to water for domestic use. This was important as in many of these households, there was no adequate source of water. However, the location of this handpump was a public one, possibly for ease of access and it was located along the main village road and began to be used by Brahmin households which already had access to private water sources. The handpump meant to be the main source of water for the SC community became an additional source for another community. The problem of access to water for SC women was left unsolved in practice, though in theory action had been taken to protect their right to water. The adequacy of water quantity was not addressed for the intended beneficiaries. The second case deals with a village in West Bengal where all the public handpumps were found to contain unsafe and impermissible levels of arsenic. While quantity of water was not an issue, quality
YOJANA April 2011

of water used especially for cooking and drinking needed to be resolved. Accordingly an arsenic removal plant was installed. The installation however was close to a Hindu temple. The village had a Muslim minority population. Muslim women who tried to access the installation were denied by Hindu women. The problem was later resolved through alternate dispute resolution by working out a schedule for water use between the two groups of women. A law on paper therefore is not adequate, though it is a beginning. The implementation of any law must also take into account ground level realities with strategies to deal with them. Challenges to the human right to water In addition to ground level social realities, there are a number of developments especially occasioned by liberalization, privatization, globalization which need to be taken into account and dealt with. Increasingly, access to water is seen as the right of those who can afford it. It has become an economic good rather than a social necessity. Water thus belongs to the highest bidder or who can dig the deepest borewell or purchase the land beneath which the aquifer lies. Water resources which are not attached to private property are presumed to belong to the state even if there are private users or communities dependent on the water. The Plachimada

case (Perumatty Gram Panchayat v State of Kerala 2004(1) KLT 31) challenged this and the appeal is now pending in the Supreme Court. There is a strong move in civil society against the privatization of the supply of drinking water especially in urban areas. Privatization treats water as a profit making venture for a private company as against a duty to be complied with by the State. It must be provided by the State, not sold by a company. Modern water policy which leans towards contribution by communities would leave out the poorest who are the most vulnerable and whose human right to water would be further violated. Not only would they not be able to access new schemes, existing rights they had been exercising to water which was not owned by them may also be at risk. To conclude, water as a human right must be recognized at all levels beginning with its recognition in clear terms as a fundamental right under the Constitution. If a citizen has a fundamental right to water, the State should have a duty to provide that water. Law and policy must take into account social realities and community dynamics in the course of their drafting. Finally, water, especially water for drinking and household needs must be made available freely as a common good and not q as a commodity.
(E-mail : sarasu@nls.ac.in) 29

J&K Window
The Road to Prosperity

rown as a wild bush in Ladakh, seabuck thorn is slowly bringing prosperity in the mountainous region. Its berries and leaves are being whipped up into different varieties of juices, jams and tea. A number of self-help groups in the region, comprising mostly school dropouts and illiterate women, are engaged in collecting berries and leaves of seabuck thorn. Of late, many villagers have begun growing this wild plant in their backyard and orchards. Local entrepreneurs, too, have started exporting the pulp of seabuck thorn. the industry, which is still in its infancy in the region, has huge potential. It is only for the past few years that the people of this cold region are reaping benefits from the wild bush. People have set up small plants where pulp from seabuck thorn is being extracted from berries to produce juice and jams. However, they still have a long way to go. The Centre has also approved of a project for growing seabuck thorn in an organised manner. Research is also being carried out to develop different products from the wild bush. Since no other crop is grown in Ladakh, a survey is being carried out to grow the seabuck thorn in an organised manner. The horticulture department in J&K which earlier focused only on apricots, is set to exploit berries as a horticulture product. They have also started teaching villagers how to harvest berries in a proper way. Sher-e-Kashmir Universtiy of Agriculture Science and Technology (SKUAST) will soon be taking up a programme in which villagers will be taught how to cultivate berries in their orchards. The plant is now grown in the wild near the streams everywhere in the region. Besides its economical value, the seabuck thorn can also combat global warming. This plant also can bind the soil and, therefore, can be used to prevent land q sliding in the region.

Development of Rural Infrastructure

ational Bank for Agriculture and Rural Development has sanctioned Rs. 902 crores for Rural Infrastructure Development to Jammu and Kashmir. In order to give a boost to rural infrastructure NABARD has recently sanctioned a financial assistance of Rs. 233 crores to the government of Jammu and Kashmir. This assistance covers construction of 23 rural roads in seven districts of Jammu region including 35 rural roads of Kashmir region and seven rural roads of Leh and Kargil districts of Ladakh of the state. These road projects would provide connectivity to 11.33 lakh people in 390 villages of the state and it will also generate Non Recurring employment of 88.65 mandays and recurring employment of 43.20 lakh mandays. During the year 2010-11, NABARD has sanctioned 360 rural infrastructure projects for an amount of Rs.902 crores, besides 290 Rural Road and Bridge Projects for improving rural connectivity in the state. For the first time in the state, 42 Animal and Sheep Health Husbandry Projects have been sanctioned to provide necessary Animal Health Care facilities for 7.60 lakh animals in the 776 villages including irrigation and flood control projects which will contribute to irrigation facilities in 2893 hecare area of 321 villages. q
30 YOJANA April 2011

Rights and Justice

Perspective

Human Rights and the Role of Judiciary

Pravin S Bhagdikar

The Indian judiciary has established several norms, laws and guidelines by delivering several verdicts in the context of human rights and social justice

he principle of universality of human rights is the cornerstone of international human r i g h t s l a w. T h i s principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

concrete expression to universality. Some fundamental human rights enjoy universal protection by customary international law across all boundaries and civilizations. Human rights are rights inherent to all human beings, whatever their nationality, place of residence, sex, ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights laws lay down obligations for governments to act in certain ways or to refrain from certain acts, in order to promote and protect human

All states have ratified at least one, and 80% of states have ratified four or more, of the core human rights treaties, reflecting their consent, which creates legal obligations for them, giving

The author is Asst.Prof.and Head, Political Science Dept,Annasaheb Gundewar College, Nagpur YOJANA April 2011 31

rights and fundamental freedoms of individuals or groups Non-discrimination is a crosscutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights. Human rights & Indian Constitution : The Universal Declaration of Human Rights in 1948 by United Nation had a great impact on the constitution of the newly independent India. A separate chapter on fundamental rights has been included in the Constitution which is similar to the Declaration of Human Rights. Independent India has no history of movement for Human Rights
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as the provision has been already made in the Constitution in the form of fundamental rights. The doctrine of human rights contains equality, justice, liberty and fraternity, which are also the basis of fundamental rights. Article 21 of our Constitution provides all this with the protection of Article 32 by which an individual can draw attention of Judiciary towards any injustice done on the basis of sex, race, caste and religion. Our constitution has provided a mechanism for implementation of such rights and laws. The Indian Judiciary has played a significant role in this context and extended the scope and limit of human rights with the help of Directive Principles. While widening the definition of Article 21, [Right to live] judiciary has included subjects like health, education, medical aid, food etc, which are basic requirements of human being. We know the importance of human rights and our Constitution and judiciary are committed towards justice for common people. We are also committed towards the declaration of Human Rights for all made by United Nations. Judicial Response towards Human rights : Every legal system is based on three basic principles i.e. justice, equity and rule of law. Every person possesses certain rights that may be fundamental or natural,

given to him by law. To protect these rights and to make amends for wrong , we have established the judicial system. The Indian judiciary has established several norms, laws and guidelines by delivering several verdicts in the context of human rights and social justice. In a recent case of honour killings of a young couple by the Khap Panchayat in Haryana, for having married within the same gotra, the Karnal Sessions Court passed a landmark order on 30.03.2010 awarding death penalty to the five persons for the double murder. In Lata Singh v. State Of Uttar Pradesh [AIR 2007 SC] the apex court held that we sometimes hear of honour killings of such persons who undergo intercaste or inter religious marriage of their own free will. There is nothing honourable in such killings, in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. The right to live in peace is a basic and essential right in the context of human rights and freedoms. Article 21 of the Constitution of India, provides that, No person shall be deprived of his life or personal liberty except according to procedure established by law. Life in Article 21 of the Constitution has much wider meaning which includes right to live with human dignity, right to
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livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very existence without which we cannot live as human beings and includes all those aspects of life which go to make a mans life meaningful, complete and worth living. It is the only article in the Constitution which has received the widest possible interpretation. Supreme Court, through its various decisions has elaborated the concept of Article 21. In the Delhi Pollution Case, the Supreme Court held in 1989 that Article 21 of the Constitution guaranteeing the right to life must be interpreted to include the right to live in a healthy environment with minimum disturbance of ecological balance, and without avoidable hazard to [the people] and to their cattle, house and agricultural land, and undue affection of air, water, and environment. The subsequent ruling in Charan Lal Sahu v. Union of India expanded upon this decision when Justice Kuldip Singh described the governments role in the protection of fundamental rights: it is the obligation of the State to assume such responsibility and protect its citizens. The Court held that the governments obligation to protect fundamental rights forces it to protect the environment. In Francis Coralie Mullin v Administrator, Union Territory of Delhi, the Honourable Supreme Court stated that, the right to life includes the right to live with
YOJANA April 2011

human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.Thus, the Supreme Court has interpreted Article 21 in a widest possible manner and included within its ambit the right to live with human dignity. Protection of Human Rights and PIL : The Indian judiciary played a very active role by entertaining Public Interest Litigation which provides an opportunity to the judiciary to examine the socioeconomic and environmental conditions of the oppressed, poor and the downtrodden people through PIL. Under the Article 32 of the Constitution the Supreme Court has directed the government to implement the fundamental right to life and liberty and execute protection measures in the public interest. In the case of Chaitanya Vs. State of Karnataka [AIR,1986 SC 825] Supreme Court also invoked jurisdiction under article 226 of the Constitution and has given authority to High court regarding PIL. The Public Interest Litigation has become a safeguard to Human Rights. The principle and practice of PIL has been followed by High

Courts and the Supreme Court in a number of cases. The famous cases where the court has issued direction under PIL and protected the human rights of individuals are Bihar [Bhagalpur] under trail criminal case, the case of Bombay pavement dwellers , Bandhua Mukti Morcha Vs. Union of India. etc. Chief Justice P.N. Bhagwati observed, where a legal wrong or legal injury is caused by a person to a determinate class of persons, who by reasons of poverty, helplessness or disability, or socially and economically disadvantaged position, is unable to approach the court for relief, any member of the public can maintain an application for appropriate direction. [S.P. Gupta Vs.Union of India,SC 1982] The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, [AIR 1979 SC 1360] the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceedings led to the release of more than 40, 000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.
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In 1981 the case of Anil Yadav v. State of Bihar, [AIR 1982 SC 1008] exposed the brutalities of the police. Newspaper reports revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders Supreme Court directed the state government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Independence of the judiciary in India stems from the separation

of powers between the executive, the legislature and the judiciary, making it possible to constitute a system of checks and balances aimed at preventing abuse of power. This separation and consequent independence is the key to the judiciarys effective functioning and upholding of the rule of law and human rights. Without the rule of law, there can be no realization of human rights. The role of the judiciary in any society must be to protect human rights by way of due process and effective remedies. This role cannot be fulfilled unless the judicial mechanism is functioning independently, with its

decisions based solely on the basis of legal principles and impartial reasoning. In the end, it is the need of the hour to take human rights in a positive sense and not allow its politicization. It has often been seen that human rights movement start with great principles like morality, ethics, respect of human beings etc, but soon become the instruments of power game. To prevent this, we must educate the masses about -their rights and duties and help them fight for the same. q
(E-mail : pravinbhagdikar@yahoo.in)

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YOJANA April 2011

YE-4/11/2

Rights and Justice

Overview

Social Justice in the Indian Context

Shriram Yerankar

If people continue to remain under the influence of old traditions and beliefs, no amount of equitable distribution of resources will be successful in creating a right atmosphere for social justice
YOJANA April 2011

he best brains of the world in the field of sociology, law and jurisprudence have tried to define social justice in their own way. The result is that the term has come to assume varied interpretations. To Plato, justice in society was to be attained by a division of labour according to natural aptitudes. He held that three qualities are found in individuals in society viz., wisdom, courage and temperance; and every individual in society should perform his duties according to his innate quality. Thus Platonic justice consists in the will to concentrate on ones own sphere of duty, and not to meddle with the sphere of others; and its habitation, therefore, is in the heart of every citizen who does his duty in his appointed place. If the producers of the community attempt to intervene in the affairs of the ruling classes (whom Plato calls the Auxiliaries

and Guardians of public service), then nothing but confusion can result which will be an example of injustice in society (Republic). But how was an individual to find his station or position in society? The individual was left guessing and usually the accident of his birth decided his place in society. This problem of determinism makes Platos definition of Justice rather undependable in practice and hence unsatisfactory. The ancient Hindus also tried to solve the problem of social justice by-dividing the society into four varnas: Brahmana, Kshatriya, Vaishya and Sudras based on division of duties and occupations, and like Plato, Manu said, in general, it is better to discharge ones own dharma incompletely or imperfectly (Vigunah) than to perform completely that of another (na parakyanh Sivanushthitah). L at er o n v arn a c a m e to b e determined by birth and heredity,

The author is Associate Professor, Deptt. Of Political Science, Jijamata Mahavidyalaya, Buldana (Maharashtra). 35

and the result was the caste system. The Platonic concept of justice and Hindu caste system might have created social justice in society where population was thin and life was simple. It is unsuited to the present day problems. The concept of justice is dynamic, as society itself is dynamic. What our forefathers considered just, we might consider unjust. For offences for which people were hanged in the past, we impose a lenient fine today. Aristotle justified slavery; Americans fought a war to do away with it. Social justice is relative, its standards are highly variable with time and place but life without some principle of Justice has never been lived and is not livable. In modern times, man as the measure of all things has come to occupy the most important position in any concept of social justice in modern democracies. In democracy, the individual is treated as an end in himself, and any concept of social justice must be based on this basic principle. Social Justice means that every individual is given full opportunities to develop his capacities and this opportunity is given to maximum number of persons in society. The creation of social justice means the creation of an environment in which every individual has got unreserved and unhindered op portunity for physical and intellectual development. In removing disabilities arising from caste, sex, race, colour, creed, religion or nation ality, and providing opportunities in a positive way with a view to developing individual faculties lies the essence of social justice.
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Social Justice in India To begin with, let us turn to the Preamble of the Indian constitution which stands for Justice, social, economic and political. The constitution framers wanted social justice in a comprehensive sense. Let us analyse the implications of economic, political and social justice in the context of India. Economic Aspects In the constitution the basic objectives of justice were set forth as The Directive Principles of State Policy which stated 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 national life. Further that The State shall, in particular, direct its policy towards securing (a) That the citizens, men and women equally, have the right to an adequate means of livelihood (b) That the ownership and control of the material resources of the com munity are so distributed as best to serve the common good; (c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Thus the concept of social justice on the economic side demands a guarantee of: (i) work to every able

bodied citizen; (ii) satisfaction of basic needs of every individual and (iii) provision of equal opportunity to every citizen to develop his potential. The disparities in income should not be such as to create an unbridgeable gulf between the rich and the poor leading to conflicts and unrest. To achieve economic Justice, the government in India has adopted a socialist pattern of society as its goal, and it is practicing planned development of the economy of the country. The basic premise in Indias Five Year Plans is that, through democracy and widespread public participation, development along socialist lines will secure rapid economic growth and expansion of employment, reduction of disparities in income and wealth, prevention of concentration of economic power, and creation of the values and attitudes of a free and equal society. However, in spite of years of planning, even the minimum economic requirements of social justice have not been achieved in India. Millions of able bodied citizens are unemployed, millions are living in miserable conditions, suffering hunger and semi-starvation; the gulf between the rich and the poor is widening. Prices are rising higher and higher, and a large percentage of the population finds it difficult to make ends meet. Political Aspect In the field of politics, justice means: equality before law, enjoyment of civil liberties and equality of opportunity. One may emphasize here the following in particular:
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(1) The state should not distinguish between citizen and citizen on the basis of sex, creed, colour, caste, or religion. (2) The state should not give any preferential treatment on the basis of religion. (3) Rule of law with independent and impartial judiciary as a protector of fundamental rights should be guaranteed. (4) Basic freedoms like freedom of speech, expression, criticism, freedom to hold meetings and organize parties, freedom of the press etc.; should be guaranteed. Freedom is the corner stone of any concept of justice. Closed societies, which deny freedom to individuals, also deny social justice. The concept of social justice prevails in real democracies or open societies because they treat man as an end and provide him freedom to develop his personality. No doubt we have all the ingredients of social justice in its political aspect, but many find the wide powers of the executive, e.g. Emergency Proclamation a threat to freedom. Further, the Preventive Detention Act is the greatest danger to individual liberty in India. Social Aspects Every individual in society should feel that he/she is an important and useful member, that he/she has full opportunities to develop his/her faculties, that there are no disabilities attached by birth, and that he/she is not subjected to discrimi nation on the basis of sex, colour, creed, caste or religion. Unfortunately in India there are
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sections of society which are denied social justice either on the basis of sex, or birth or religion. Scheduled Castes and Scheduled Tribes have been suffering great social injustices and disabilities by birth. They are condemned to a position of inferiority and subordination to the higher castes. Our social heritage is partly respon sible for this unfortunate phenomenon, but it is also our fault that we have not changed with the changing times. Caste system continues to be oppressively hierarchical in many parts of the country, despite constitutional safeguards and laws against it. Another important section of society which has suffered a great deal of social injustice in India is women. This again is both due to our social traditions and due to our resistance to change. It is heartening to note, however, that the conscience of India has already awakened to this aspect of social injustice and it is on the way out gradually. Another hindrance in the way of achieving social justice in India is the wrong interpretation of fate and Karma. People think that their position in society is predetermined by their past actions. If they are poor or treated badly by society , they blame it on their past sins and bad actions rather than fighting injustice and making efforts to improve their lot. This attitude needs to be changed in order to create a proper climate and atmosphere for achieving social justice. To sum up, if we want to ensure social justice in the country in its

totality, that is on the economic, political as well as social fronts, the government and the society at large would need to work together. Economic planning, industrialization, urbanization, just distribution of economic benefits and rewards, state legislation on social matters etc. will only partially solve the problem of social justice. These remedies by themselves cannot guarantee the highest possible development of persons which is-the goal of social justice. Change in social values, social attitudes and social institutions is fundamental for achieving social justice. If people continue to remain under the influence of old traditions and beliefs, no amount of equitable distri bution of resources will be successful in creating a right atmosphere for social justice. The basic thing is education. Change should begin within. Education should create a spirit of enquiry in the minds of the people. It should create a power of questioning the validity of social traditions and social institutions. Education should encourage inquisitiveness expressing itself in such questions why should this social value be observed? In this way a climate will be created in which we can achieve social justice. We need education that does not blindly pass on traditional beliefs, but one that views it critically and selects from it, rejecting that which is obviously retrograde. A scientific system of education which creates healthy skepticism in the minds of the people, and which gives pride of place to reason and rational thinking is the only road to salvation. q
(E-mail:shriram_yerankar25@rediffmail.com)

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Rights and Justice

Perspective

Demographic Transition and Care for the Elderly

P K Sujathan

Rather than just focusing on construction of old-age homes, we need to put in place mechanisms to ensure availability, accessibility and affordability of a decent life and good health among the aged
38

ncrease in life expectancy coupled with the reduction in fertility has brought about a fast ageing of the world population. According to the World Health Organization there are around 600 million people aged 60+ in the world, and this will be doubled by 2025. The Population Division, Department of Economic and Social Affairs, United Nations Secretariat projected that one out of every ten persons is now sixty years or above. However by 2050, one out of five will be sixty years or older. The fast ageing population is forcing policy makers worldwide to review the Millennium Development Goals and address the current state of the Global Ageing Agenda.

The Indian Scenario The proportion of the aged population of India is much higher than South Asia as a whole. Until

the year 1951, the sequence of high birth rates followed by high death rates kept the proportion of persons aged 60 and above at a low level in India. However, since 1991, this population has grown steadily. In recent years, a steady decline in the birth rate has accentuated the aging process. As per 2001 census, total population of 60+ people was 7.7 crore of which population of male and female were 3.8 crore and 3.9 crore respectively. The population of senior citizens is projected to rise to nearly 10 crore by 2011, 12 crore by 2016, 14 crore by 2021 and over 17 crore by 2026 (Sanyal and Arora 2009). India thus belongs to the family of Greying Nations with over 7% of its population in the 60+ category. Substantial progress in health care amenities is one of the main reasons for the marked increase in the proportion of elderly in India.

The Author is Research Officer, Planning Office, Civil Station, Palakkad. YOJANA April 2011

However, it is disturbing to note that no simultaneous increase in the quality of life takes place among this rising proportion of the elderly. The first National Policy on Older Persons (NPOP) was announced in January 1999 by the GOI to ensure the well-being of the aged. The policy envisages state support to fulfill food security, shelter and protection against exploitation among the aged. In addition, the Maintenance and Welfare of Parents and Senior Citizens Act 2007 was enacted in December 2007 to ensure the care of the aged which includes penal provision and even revocation of transfer of property by senior citizens for the abandonment or negligence by their children or relatives. The Ministry of Social Justice and Empowerment, as part of assessing the performance of NPOP, constituted a committee in January 2010. The Committee is working on a new NPOP and is

slated to submit its recommendation by December 2010. It is to be noted from chart 1 that a wide base and narrow top of population pyramids indicates a high birth rate and a high death rate which could, precisely, be seen in 1971 and 1981. However, flat bottom and narrow top gradually started changing since 1991 in such a way that birth rate started declining along with death rate. While the younger population of male and female was 41.87% and 42.41% respectively during 1971, the same would abate to 27.7% for both male and female in 2016. Similarly, the older population of male and female was 5.20% and 5.10% in 1971, the same would rise to 8.8% and 9% respectively in 2016. Kerala was one of the best performers among Indian states in containing birth rates and meting

out health services to people. According to the first census 1901, the number of elderly persons in Kerala of 60 years of age and above was only 10 lakh. But this number rose to 26 lakh in 1991. As per the latest 2001 census, Kerala has 33 lakh elderly persons. This number is expected to increase to 57 lakh in 2021 and 120 lakh in 2061.
Table 1. Speed of Population Ageing in Kerala.

Population Years No. of aged 60+ reached years reaches required specified % of total population 8% 10% 12% 14% 16% 18% 1986 1996 10 2011 15 2016 5 2021 5 2026 5

Chart 1. Changes in Population Pyramid-India (1971-2016)

Source: Leela Gulati and S. Irudayarajan (1988) Population aspects of ageing in Kerala, their economic & social consequences, Centre for Development studies, Thiruvananthapuram.

Source: Technical Group on Population Projections, Registrar General of India (RGI) 1996

It is evident from table 1. that while ten years were required for the additional increase of 2% of 60+ elderly during 1986 1996 and fifteen years during 1996-2011, for every subsequent increment of 2% of elderly since 2011, only five year period is enough. It, therefore, reminds us that the momentum of ageing is gaining speed in Kerala.
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YOJANA April 2011

Care of the Aged As the number of aged people in the country rises, the state and society alike need to pay more attention to their care and guaranteeing their rights to dignified living. The rights of the aged can be categorized into three -. Protection, Participation and Image. Protection refers to the physical, psychological and emotional safety of the aged. Participation refers to the need to establish a more active role for older persons and Image refers to the need to create a healthy and respectful attitude. Under the traditional joint family structure in India, the rights and care of the elderly were largely taken care of. However, with the disintegration of joint families, large scale migrations that force members of families away from their ancestral places and other such reasons the elderly are very often left to their own devices. They have to depend on persons and services available outside the family for their various needs. In a sense, it can be said that the care of the elderly has been taken over by the market, and has become commodified. For many, this can be expensive or even unaffordable. The government has tried to intervene through the Act for the protection of and assistance to the aged, but the young naturally have to do their share. The problems that the aged face are on many fronts. On the physical front it may be linked to
40

basic needs like food, shelter and physical support and protection. On the psychological front it often means coping with loneliness, feelings of low self worth and g e n e r a l i n s e c u r i t y. A n o t h e r distressing aspect is the need for healthcare, especially with second- generation diseases such as dementia, alzheimer and cancer spreading fast. With shrinking families, long term care of the elderly, and meeting their needs on the physical, psychological and health fronts is becoming very difficult. Alternatives like old age homes and shelter for elders are coming up no doubt, but the good, privately run centres can often be beyond the means of many, while the more reasonable ones- for example those run by the government are usually plagued by problems of fund shortage, poor infrastructure and poor and untrained manpower. Safety Net For providing long term, sustainable care to the elderly we need to tap all three sources of care - the family, the state and the community. As the care market is largely informal and is integrated within the social sector, it is difficult to obtain reliable data pertaining to elderly care. Moreover, different labour markets co-exist within the long term care sector. It is however, an industry marked by low wages and rickety working conditions. Coordination and regulation by the state could

probably help matters. In providing health care, we need to focus not only on in-patient care but also on palliative and rehabilitation care. Health insurance is another area where state intervention is required. Further, the government needs to provide health coverage for the Below Poverty Line elderly and the destitute. Rather than just focusing on construction of old-age homes, day-care centres and the like, it would be more advisable to put in place mechanisms to ensure availability, accessibility and affordability of a decent life and good health among the aged. However, this requires a sizable allocation in the social sector and more importantly, responsive and responsible senior citizen associations. NGOs can also play a decisive role in this regard. Whatever the state and market may do, we must remember that care for the elderly can best be ensured within the family structure. The governments intervention in bringing in an Act to ensure that children take care of their aged parents is a very welcome step in this direction. As people approach the evening of their lives, their physical and mental conditions naturally deteriorate, resulting in dependency on their communities and families. Let families and the community view this as a pay back occasion for the contributions and services rendered by them in the q past.
(E-mail : idofsujathanpk@gmail.com) YOJANA April 2011

North east diary

North-East Rail Link
he North Eastern States will get closer to the rest of the country soon. India and Bangladesh have decided to begin the construction of a 10 km rail link this year, linking Bangladeshs Akhaura directly with Tripura, Agartalas capital. The work, to be completed by 2012, will fulfil Indias longstanding demand of granting easy access to the landlocked North-East, approximately cutting travel time between Kolkata and Agartala by half. The two countries have finalized alignment of the railway tracks and are now working out the construction cost as well as the modalities of the train service. Bangladesh has already endorsed the alignment that connects Gangasagar, a small train station in Akhaura, and Agartala for the new route. A joint team recently surveyed the route. Gangasagar and Agartalaboth located five km off the international border on either side-will be linked through a metre gauge line and the option for a broad gauge line will also be kept. The new rail link will reduce the 1,200 km distance between Agartala and Kolkata (via Guwahati) by nearly three times. The rail link, though, is mainly aimed at freight serives. The joint team also proposed doubling the 4.4 km Akhaura-Gangasagar section to facilitate smooth movement of trains. A survey was first conducted in 1999 for connecting the train stations in Agartala and Akhaura. After years of delay, Agartala has been linked with Assams railway network. With the creation of the Akhaura-Agartala link, Tripura and the rest of the North-East will be connected to the rest of India through Bangladesh as well as the strategically located Chittagong Port. This will meet Indias longstanding plea to Dhaka for transit rights. q

PMGSY in Arunachal Pradesh

runachal Pradesh, which had just 3,400 km road network in 1987, the year of attainment of fullfledged Statehood, has now 21,000 km roads thanks to the PMGSY (Pradhan Mantri Gram Sadak Yojana), the Centres flagship programme. As per the Census report (prior to the launch of the PMGSY), 2741 settlement areas in the State had remained unconnected. Despite all odds, till October 2010, the State could add a road length of 2,712 kilometres under the PMGSY programme to its total road network by connecting 408 habitations. During the current year, a road length of 410 km was targeted to be achieved which may provide connectivity to about 40 habitations in the State. Against the targeted road length of 3730.875 km, 2712.59 kilometres have been constructed at the expenditure of Rs. 918.28 crore against the estimated cost of Rs.1613.28 crore. In the first two phases (2000-01 to 2001-03), the State had achieved cent per cent success by constructing a road length of 1046.73 km at the cost of Rs. 127.46 crore to connect 262 habitations. In contrast, only 220.43 km road could be built during Phase VIII (2008-09) at the expenditure of Rs. 86.23 crore, providing road connectivity to just one habitation off the target of 172. However, the Phase VIII programme (2008-09) had received a major boost when the Prime Minister during his January 2008 visit to Itanagar announced to cover 513 small settlements in border blocks under the Bharat Nirman scheme. Accordingly, the Union Ministry of Rural Development had cleared 64 roads to provide connectivity to 135 habitations for a road length of 583.02 km with an estimated cost of Rs. 387.67 crore. Moreover, the Ministry had sanctioned Phase IX projects in October, 2010 to provide connectivity to 124 habitations for a road length of 655.08 km with an estimated cost of Rs. 461.99 crore. q
YOJANA April 2011 41

Rights and Justice

Perspective

Educational Rights of Children with Special Needs

Adya Shakti Rai

Schools must change in order to accommodate student diversity, so that there is no need to segregate some because they might have different needs or abilities

ducation is an index of harmonious development. It becomes more important to persons with disabilities for their development and for enjoying life as independently as possible. There may be differences in individual ability but each individual contributes to society. Education as a tool empowers the individual to contribute positively in the process of development of society and nation. Therefore, it is a social responsibility to ensure full development of all types of individuals in order to ensure efficient use of their abilities. Disabled children are often excluded from education as a result of societys lack of knowledge about impairments in general, and the negative attitudes and stigma attached to them. Social prejudices assume that children with learning,

speech, physical, cognitive, or sensory impairments are unable to participate in education. The purpose of education is to enable a child to learn, develop their innate capabilities fully and participate meaningfully in the progress of society. Education plays a critical role in promoting childrens development and in preparing them for adult life as active participants in the local community and society, more so for a child who is differently abled. Persons with disabilities have a right to lead lives of dignity and self-respect. They can enjoy their rights only if they get adequate opportunity to pursue their education in a wholesome way that leads to the realization of their self worth and ability, and their acceptance and respect by society. For this goal to be realized, it is essential that their education is not imparted in an

The author is Lecturer, Department of Visual Impairment, Dr. Shakuntala Misra Rehabilitation University, Lucknow. 42 YOJANA April 2011

atmosphere of exclusion rather, a wholesome, inclusive education is the only means for achieving such an end. Inclusive education is where children with special needs are educated along with other children. This is based on the philosophy that all children can learn at some level according to their own individual pattern of development. It encourages children to accept, appreciate and respect differences in ability. An inclusive education system is committed to meet the needs of all children. It seeks to fit the education system to the childs needs. Schools must change in order to accommodate student diversity, so that there is no need to segregate some because they might have different needs or abilities. Inclusive education is an approach that seeks to meet the learning and schooling needs of everyone. The inclusion of children with special needs in mainstream society is a matter of social justice and an essential investment in the future of society. It is an integral element of the expression and realization of universal human rights. Following are the some International and National initiatives to promote inclusive education, without which goal of universalization of elementary education or education for all cannot be achieved. International Conventions regarding education of children with special needs
l

international instruments. The concept of human rights for disabled persons began to become more accepted internationally in the 1970s. Article 26 of the Universal Declaration of the Human Rights (1948) states that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedom. It shall promote understanding, tolerance and friendship among all nations, social or religious groups and shall further the activities of the United Nations for the maintenance of peace. The following are some declarations in this regard:
l

UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) The Vienna Declaration (1993) Salamanca Statement and Frame work For Action (1994) Biwako Millennium Framework for Action (2002) World Education Forum (Dakar, 2000) Beijing Declaration of the Rights of People with Disabilities (2000) International Convention on the Rights of Persons with Disabilities(2006)

The Declaration of the Rights of Mentally Retarded Persons, (1971) The Declaration of the Rights of the Disabled Persons (1975) Warnock Committee Report (1978) IYDP- National Draft Plan for Education of Handicapped (1981) World programme of Action Concerning Disabled Persons(1982) Decade for Disabled Persons (1983-1992) The Asian & Pacific Decade of the Disabled (1993-2002) UN Convention on The Rights Of The Child (1989) The Jomtien World Declaration on Education for All (1990)

Together, these documents recognize that inclusive education is a human right of every child. National Instruments to ensure education of children with special needs Following Articles of the Indian Constitution, reflect the commitment to provide education to all, including children with special needs. Article 15 The state shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 21A provides for free and compulsory education to children in the 6-14 age groups as a Fundamental Right in the Constitution of India. Consequent
43

The right to education has been recognized in several

YOJANA April 2011

to this insertion the existing Art 45 in the Directive Principles was replaced and made applicable to children in the 0-6 age group. Article 29(2) Provides that no citizen shall be denied admission into any Educational Institution maintained by the state. Article 41 the state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved wants. Article 45- Directs the state to provide free and compulsory education for all the children until they attain age of 14 years. Article 46- 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. Our constitutional commitments have been reflected through various commissions of education appointed at different points of time.
l

Ramamurthy Committee (1991) Program of Action (POA) (1992)

Sarva Shiksha Abhiyan (Education For all Campaign) (2000-2001)

Following are the legislations in this regard

l

National Institutes for Disabled Persons in India: Government of India- has set up the following national institutes to provide comprehensive services to children with special needs
l

Rehabilitation Council of India Act (RCI -1992) Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act (1995) National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (1999) National Curriculum Framework (NCF-2005) Action Plan for Inclusive Education of Children and Youth with Disabilities ( 2005) National policies on Disabilities (2006)

National Institute for the Visually Handicapped (NIVH), Dehradun. National Institute for Orthopedically Handicapped (NIOH), Calcutta. National Institute for Rehabilitation Training and Research (NIRTAR), Olatur, Cuttack. Pandit deen Dayal Upadhyay National Institute for the Physically Handicapped (IPH) New Delhi. Ali Yavar Jung National Institute for the Hearing Handicapped (AYJNIHH), Mumbai. National Institute for the Mentally Handicapped (NIMH), Secunderabad. National Institute for the Empowerment of Persons with Multiple Disabilities.

l l

l l

Schemes Run by Government of India:

l

Integrated Education of Disabled Children (IEDC1974) Project Integrated Education for the Disabled (PIED1987) District Primary Education Programme (DPEP-1994) National Handicapped Finance and Development Corporation (NHFDC-1997) Scheme of Assistance to Disabled Persons for Purchase/Fitting of Aids and Appliances (ADIP) Scheme

Indian Education Commission (1964-66) National Policy for Children (1974) National Policy on Education (NPE) (1986) Behr-ul-Islam Committee (1987)

Though several international and national initiatives have already been taken but we are still very far from achieving the goal of education for all . The attainment of this goal cannot be considered complete till we are able to provide an inclusive education to the disabled. q
(E-mail:raiadya@gmail.com)

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YOJANA April 2011

W D NOSTAN ON

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INDIA 2011
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45

Rights and Justice

Student speak

Judiciary and Social Justice

Mritunjay Srivastava

Our judiciary has played a key role in enforcing social justice and made our legal system more accessible and responsive to the diverse needs of various sections of society

ustice is concerned mainly with allocation of benefits, goods and services as well as burden among the members of society, particularly in scarce situation. Therefore, the term social justice, implies a reordering of social life in such a manner that the material and moral benefits of social effort are not cornered by a tiny privileged class but accrue to the masses to ensure the uplift of the lower, weaker and underprivileged sections. This involves a logical synthesis of liberty, equality and fraternity.

enforceable by court of law. However, our judiciary has left no stone unturned to enforce DPSP and invented new ways, wherever needed, to enforce it. Wherever the Executive failed in enforcing DPSP, the Judiciary stepped in. The advent of Public Interest Litigation (PIL) jurisdiction under Article 32 coupled with liberal interpretation of various Articles like Art. 14,19,21,32 and 226 etc. has ushered in a new era in modern India, where Judiciary is not only seen as guardian of the Constitution but also as guardian of poor and marginalized sections of society. In Consumer Education & Research Centre v. Union of India AIR 1995 , Honorable Supreme Court elaborated on the theme of social justice envisioned in the Preamble to the Constitution and Part IV. The Court held that social justice is the arch of the Constitution which ensures life to be meaningful and liveable with

Our constitution elaborately deals with such process under Part IV i.e. Directive Principles of State Policy (DPSP). The DPSP strengthen and promote the concept of social justice by seeking to lay down some socio-economic goals which the various governments in India have to strive to achieve. But Article 37 makes DPSP non-

The author is a student of Masters of Public Administration from University of Lucknow. 46 YOJANA April 2011

human dignity. Social justice is a dynamic device to mitigate the suffering of poor, weak, dalits, and tribals and the deprived sections of the society and to elevate them to the level of equality to live a life of dignity. The aim of social justice is to attain substantial degree of social, economic and political equality. The impact of the liberal approach on Fundamental Rights has been remarkable for social justice over a period of time. This is demonstrated in many ways. One, the Supreme Court has given an extended meaning to Art.142 (power to do complete justice) giving an extension to its own powers to give relief. Two, Supreme Court has been expanding the horizons of Art.12 (meaning of state) primarily to inject respect for human rights and social conscience in Indias corporate structure. Third, the idea that Fundamental Rights are but a means to achieve the goals indicated in the Directive Principles and must be construed in the light of the same has been advocated by the Supreme Court time and again. The biggest beneficiary of this approach has been Art. 21. By reading Art. 21 with the DPSP, the Supreme Court has derived therefrom a bundle of rights. To name a few of these:
l

Right to life includes the right to enjoy pollution free water and air and environment (Subhash Kumar v. State of Bihar AIR1991) Right to health and social justice has been held to fundamental right of workers. This right has been derived from Art. 21 read with Art 39(e), 41, 43 and 48A. (Consumer Education v. Union of India AIR1995). Right to Shelter included in Right to life. (Chameli singh v. State of UP AIR 1996). Right to Education. Derived from Art. 21 read with Art. 41 & 45 (Unnikrishnan v. State of A.P AIR 1993) Right to life includes right to livelihood. The Supreme Court has taken recourse to Art. 39(a) to interpret Art. 21 to include this right. (Olga Tellis v. Bombay Municipal Corporation) Right to access roads for hilly areas. (State of Himachal Pradesh v. Umed Ram AIR 1986)

socio-economic policy envisaged in the DPSP, then it must be regarded as one for public purpose. Thus, the Wealth Tax Act was held to be valid by Supreme Court to prevent concentration of wealth in a few hands. Likewise, acquisition of agricultural land above the ceiling and its distribution among the landless has been held to be valid. Similarly, Supreme Court recognized the difference between the formal and substantive equality and upheld, in various cases, affirmative actions taken by governments for Backward Classes. In recent decisions of Supreme Court, one can find extensive reference to Human rights. Today, human rights jurisprudence in India has Constitutional status, says Krishna Iyer, J., in Sunil Batra (no. 2) v. Delhi Administration, AIR 980 SC 1579. In Prem Shankar v. Delhi Administration AIR 1982 SC149, Krishna Iyer, J., said that in interpreting constitutional and statutory provisions the Court should not forget the core principle found in Universal Declaration of Human Rights, 1948. This is a welcome trend. This approach will go a long way in inculcating a sense of accountability in public authorities discharging public duties towards the people and particularly towards the weaker sections of society. In this way, our Judiciary has played a key role in enforcing social justice and made our legal system more accessible and responsive to the diverse needs of various sections of society. q
(E-mail :m.srivastav88@gmail.com)

The right to live with human dignity. (Bandhua Mukti Morcha v. Union of India AIR 1984) Right to free legal aid. (M.H Hoskot v. State of Maharashtra AIR 1978)

These are a few examples of various rights intricately connected with the mandate of social justice, which our Judiciary has evolved and invoked. In brief, read with various Directive Principles, Art. 21 has emerged as a multi-dimensional Fundamental Right. Art. 14 and Art. 39(d), read together, have led to the emergence of the principle of equal pay for equal work. Further, the DPSP are now regarded as a dependable index of public purpose by our judiciary. If a law is enacted to implement the

YOJANA April 2011

47

Shodh Yatra

Self Dispensing Jug

It was found that though different dispensing mechanisms and jugs of different shapes and design existed, no such jug was available, which had multiple dispensers activated by mechanical switches
48

n interesting idea to have a jug that can automatically dispense the liquid contents into a glass has been conceived by Sukomal Basak from West Bengal.Born and brought up in Tufanganj, Sukomal runs a grocery shop. Tufanganj is a small, densely populated municipality of Cooch Behar. Predominantly middle class, the people here are engaged in various services. A school drop out, Sukomal did not continue his education beyond class ten as he had to assist his father in running the grocery shop.

Since his childhood, Sukomal had a keen interest in the biographies of great innovators like Edison and Graham Bell. He also liked the science subjects. Off and on he did conceive many ideas but did not think

sufficiently hard to convert them into prototypes. Lack of funds also did not help his desire to innovate. One interest that has continued till date unabated is his liking for newspapers. In fact it was through the Anand Bazaar Patrika, one of the most read news papers of West Bengal that he first came to know about NIF. After the NIFs Third Award function in 2005, the news about Mahabir Chaube of Bankura winning an award for his idea about an innovative screw was published in the news paper. This intrigued Sukomal and he decided to do something of his own too. To get better ideas, he even started watching Discovery and National Geographic Channels. When the advertisement of NIFs Fifth National Competition for Grassroots Innovations and Traditional Knowledge Practices got published in February 2006
YOJANA April 2011

in Anand Bazaar Patrika , he ascertained his eligibility for participation and started thinking about different ideas. Finally a few months later, he submitted his idea about the self dispensing jug. The idea Sukomal used to go to the ration shop to purchase kerosene for the household from class five onwards. He used to observe how the helper in the ration shop transferred kerosene from a larger container to a smaller one by sucking an end of a plastic pipe. One day he tried replicating the same at his home using water. He was successful. He started thinking of using this concept somewhere for practical utility. While in class eight he read a story, Technology for Mankind, where there was a reference to restaurants and serving of water. It immediately struck to him that he could develop this idea for such an application. The idea lay dormant in his mind till he submitted it to NIF many years later. Sukomal thought about an apparatus having a container and a dispenser that pours liquid as soon as a glass is kept below the dispenser. The main container with four dispensers (on four sides) would be kept on a stainless steel base. Below each dispenser, on the platform, there would be
YOJANA April 2011

four switches. These switches would be connected to a valve, which opens when the switch gets pressed due to the weight of the glass placed on it. As a result, the liquid from the main container would flow out through the dispenser into the glass. The liquid would only be dispensed till the time the glass is on the base. Initially, Sukomal sent only an illustrated idea to NIF but later made a model in paper and sent it across. Taking out time from his regular work, it took him four months to develop the model. NIF evaluated the feasibility as per the models description and through its Value Addition and R&D fund, supported him financially to develop a working prototype. Prior to the support, elaborate search was performed to ascertain the novelty of the idea. It was found that though different dispensing mechanisms and jugs of different shapes and design existed, no such jug was available, which had multiple dispensers activated by mechanical switches. NIF also filed a patent in the name of Sukomal for this apparatus assembly. Sukomal did not have any formal training in fabrication. It took him time to understand the characteristics of different materials that he could possibly use to make the apparatus. Working

slowly over another few months he was able to complete the prototype of the self dispensing jug apparatus made in tin using GI and aluminium pipes. Being his first attempt, the finish was not up to the mark. Also in execution, two of the four dispensers failed as the joints were not properly done and the spring attachments were improper. However, with some design inputs, the overall look, feel and efficiency could be improved. NIF has engaged experts for working on the concept of Sukomal. This self dispensing jug apparatus can be used in restaurants, homes, public water/milk booths or even in ration shops or chemical industry to dispense liquids/ chemicals. While developing the self dispensing jug, Sukomal also conceived an idea about an economical manually operated mixer, which can be used in kitchens for smoother mixing of different ingredients or for any other mixing or blending task. He is quite happy and satisfied about his work and looks forward to complete his self dispensing jug and then with the help of NIF, move on to do some other innovations, which can be used by masses at large. q
(E-mail : campaign@nifindia.org, www.nifindia.org) 49

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YOJANA April 2011

YE-4/11/7

do you know?
PROTECTING HUMAN RIGHTS IN INDIA
What was the first global expression of Human Rights ? The first global expression of human rights came in 1948, just after the second world war, in the form of the Universal Declaration of Human Rights adopted by the UN General Assembly. The declaration recognizes that human beings are inherently entitled to certain rights; justice and peace in the world can be established only if the human dignity of all people is respected, and disregard for the same outrages the conscience of mankind. The declaration recognizes freedom of speech, belief, freedom from fear and from want as the highest aspiration of people. The declaration consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights which consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Protocols, took on the force of international law in 1976. Subsequently, the Vienna
YOJANA April 2011

Declaration and Plan of action were adopted in 1993. This declaration established the interdependence of democracy, economic development, and human rights; brought in the concept of rights being indivisible, interdependent, and inter-related and led to the creation of the post of United Nations High Commissioner for Human Rights . India is also a signatory to the Vienna declaration. What is the main framework for protecting human rights in India ? The main framework for protecting human rights in India is provided by the Protection of Human Rights Act, 1993. This has been enacted pursuant to the directive under Article 51 of the Constitution and also the commitments taken at the Vienna conference. It defines human right as the right relating to liberty, equality and dignity of the individual guaranteed by the Indian constitution as embodied in the fundamental rights and the International covenants (International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on

the 16th December, 1966), and enforceable by courts in India. The Act provides for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of human rights and for matters connected therewith. What functions does the Act assign to the National Human Rights Commission ? According to the Act the Commission is required to inquire, into violation of human rights, or abetment or negligence in the prevention of such violation, by a public servant; intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; visit, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living condition of the inmates and make recommendations thereon ; review the safeguards under the Constitution or any law for the time being in force for the protection of human rights
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and recommend measures for their effective implementation; review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures; study treaties and other international instruments on human rights and make recommendations for their effective implementation; undertake and promote research in the field of human rights; spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; encourage the efforts of non - Governmental organizations and institutions working in the field of human rights; such other functions as it may consider necessary for the promotion of human rights. What is the objective for setting up Human Rights Courts ? The human rights courts are set up for the purpose of providing speedy trial of offences arising out of violation of human rights. As per the Act the State Government may, with the concurrence of the Chief Justice of the High Court, specify for each district a Court of Session to be a Human Rights Court to try the said offences. For every Human Rights Court,
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the State Government is required to specify a Public Prosecutor or appoint an advocate who has been in practice for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court. How does the National Human Rights Commission function ? The NHRC takes up cases either on its own initiative or on the basis of complaints received. It has all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, particularly with regard to summoning and enforcing the attendance of witnesses and examining them on oath; discovery and production of any document; receiving evidence on affidavits; requisitioning any public record or its copy from any court or office; issuing commissions for the examination of witnesses or documents; any other matter which may be prescribed. The Commission has its own investigating staff headed by a Director General of Police for investigation into complaints of human rights violations. Under the Act, it is open to the Commission to utilise the services of any officer or investigation agency of the Central Government or any State Government. The Commission has also associated non - Governmental organizations in many cases.

What steps can the NHRC take once it establishes of violation of human rights ? The NHRC can recommend to the concerned government to initiate action against the guilty, it can recommend grant of immediate relief to the victim or his family and it can also approach the Supreme Court or High Courts for orders that they may deem necessary. The concerned government is required to indicate the action taken on the Commissions recommendations within one month in general cases and three months in cases concerning the armed forces. How can complaints be made to the Commission ? Self contained complaints can be made in Hindi, English or any other language in the Eighth Schedule of the Constitution . Additional documents or affidavits can be asked for. The commission also has the discretion for accepting complaints telegraphically or through the FAX, email or the mobile telephone number of the Commission. However, complaints are not accepted if the event referred to is more than a year old, or the matter is sub- judice, vague, anonymous,
pseudonymous, frivolous or pertaining to service matters.

YOJANA April 2011