Essays on Human Rights and the Law.Indd

KALIYUG The Decline of Human Rights Law in the Period of Globalisation

KALIYUG The Decline of Human Rights Law in the Period of

COLIN GONSALVES

Human Rights Law Network New Delhi, India August 2011 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation August 2011 © Socio Legal Information Centre* ISBN 81-89479-71-7

Author Colin Gonsalves

Editor Suresh Nautiyal

Assistance in text editing Ashima Kanwar, Rosannagh Rogers, Neha Bhatnagar

Assistance in research Abida Khatoon, Anupama Chaturvedi

Design Mahendra S Bora

Printed at Shivam Sundaram Green Park, New Delhi, India

Published by Human Rights Law Network (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura New Delhi – 110014, India Ph: +91-11-24379855/56 E-mail: [email protected]

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Disclaimer The views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. *Any section of this volume may be reproduced without prior permission of the Human Rights Law Network/Socio Legal Information Centre for public interest purposes with appropriate acknowledgement. INTRODUCTION

he articles that appear in this book have been written over a period of time and cover all the human rights law issues that have caught the nation’s attention generating much debate. I Tintervened in many of these controversies trying to maintain a true and consistent human rights perspective seeing issues always through the eyes of the working people. All these articles were written during the height of globalisation. This started in the early 90s and its merciless effects on the poor were clearly discernible at least from 2000 onwards. The globalisation can be summed up in three words: “subsidies are bad” or with another formulation of four words “the markets will provide.” By the early 90s, the shift from a social democratic or trickle down model to globalisation was well on its way. In the social democratic model, governments try to take all sections of society along in some compromised capitalists fashion. A certain part of the gross domestic product is, therefore, diverted towards the poor for public education, public healthcare, food, public housing and public transportation. The underlying notion, in this system of governance is that there ought to be education and public healthcare for all, that public housing should be constructed by the State for those living in the slums, the subsidised food should be given to the poor and public transportation ought to be subsidised so that the poor can travel. These principles are jettisoned in the globalisation period of capitalism. State interventions that subsidised services for the poor were replaced by the market forces. The market competition was expected to depress the prices of the medicines and food, making them affordable for the poor in India. The privatisation of education would likewise see services being provided cheaply. This economic theory and political perspective was a cruel joke on the working class. If, as all national statistics showed, 80% of the Indian population was below a monthly expenditure of Rs. 20 per capita per day (at 2004 prices), then it was incomprehensible as to how the poor would purchase medicines, send their children to school, buy their homes and feed their families. The Planning Commission of India that has pushed India’s GDP rate to 8% today and has globalised the Indian economy, pegs the poverty line at Rs. 15 per capita per day expenditure, meaning thereby that if the per capita expenditure is Rs. 16 per day that person would not be considered poor and would not be entitled to the subsidised food. The minimum bus fare for an employee to reach her ofﬁ ce and return would come to that amount let alone expenditures on other items. The shift in the political mindset of politicians running the country was palpable. Whereas during the decades post-independence, nation building was the main concern, during the globalisation period proﬁ ts became the sole obsession. Taken to its logical conclusion, governance developed a cruel attitude towards ordinary people. Whereas earlier, the Public Distribution System and the subsidised grain were critical to combat malnutrition and starvation, now the policy was “either you buy or you die!” The policy of giving subsidised grain to the poor was condemned from the Prime Minister downwards as being wasteful and unproductive. When the Supreme Court of India recently requested the government repeatedly to give grain to the poor free, particularly in view of the fact that 65 million tons of grain were lying rotting in the godowns of India while the mal-

v INTRODUCTION nutrition, anaemia and low body weight of the Indian population remained obstinately upwards of 50%, the Prime Minister of India called a press conference the very next day and criticised the Supreme Court for interfering with the government’s policy. In the healthcare, government began the privatisation of public hospitals by selling many institutions to the private sector and by forcing the poor to pay for services in the guise of a World Bank suggested “user fee system.” This practice of charging the poor for services effectively resulted in turning the poor away from public hospitals to leave them to die. The privatisation of education began from an unexpected quarter with the Supreme Court in TMA Pai’s case vigorously promoting the privatisation of higher education. The governments took the cue and carried out the whole-scale privatisation of education. In the last decade, fees quadrupled that even the middleclass were unable to educate their children. In the kindergarten classes, the newspapers often reported long lines of middle class parents struggling to get their little babies admitted even after paying huge bribes to the schools in the form of donations. The development on housing rights was as cruel. Though the UPA manifesto proudly claimed that forced evictions of slum dwellers would be stopped and in-situ upgradation would be done, in reality hundreds of bulldozers were dispatched to the slums in Delhi, Bombay and all other major cities of India and the homes of the poor were crushed without notice. The newspapers reported demolition after demolition, some of them while children were studying for their examinations. Not a minutes’ notice was given to enable the occupants to save their belongings by taking them elsewhere. The pathetic possessions of the poor were crushed under the bulldozers. Many people lost their lives, particularly the aged, the sick and little children. It is in this way that urban lands were cleared for the establishment of malls, fi ve-star hotels and commercial establishments. The fi nal blow came when the Urban Lands Ceiling Act, which was passed by Parliament to acquire excess urban land for housing the poor and indeed thousands of hectares were acquired, was repealed and the lands returned to the landlords. The catastrophic collapse of economic rights was mirrored by the dramatic decline of civil and political rights. Torture, which was in any case, widespread, skyrocketed. The Judicial control over the police declined. The upper middle class mindset and morality which stigmatised the poor as criminals, prevailed. Yesterday’s constitutional experts now parroted the cliché that the legal system was too soft on criminals. Certain judges set out to dilute criminal law protection. They even called into question the criminal law standard of “beyond reasonable doubt.” Death sentence after death sentence were awarded. Then it was argued by eminent jurists that judges ought to be permitted to convict even if the evidence was not satisfactory “provided they believe the accused to be guilty.” The institutions of democracy were also transformed. Parliament and the Assemblies were often centres of physical clashes between warring parties. Studies showed that many of the elected representatives had criminal backgrounds. Corporate infl uence over these representatives grew to such an extent that when it was proposed that Parliament enact a law enforcing visual representations on cigarette packets to dissuade persons from smoking, hundreds of elected representatives wrote to the minister against the proposed legislation. Such was the infl uence of just the tobacco lobby in respect of an innocuous step. Today, the hold of corporations over elections and the elected representatives is nigh complete. The corporations control the Statute drafting vi KALIYUG: The decline of human rights law in the period of globalisation INTRODUCTION processes and the content of legislations. Corporations decide the education, health, nutrition and other social policies as well. In short, government and Parliament are well in truly privatised. It is said that India has a free Press. But over two decades of globalisation, corporate control of the media is absolute. Like, Fox News in America, news in India is manufactured according to the corporate dictates. Accurate, fearless and unbiased reporting is a thing of the past. Two recent events indicate how deep the rot has set in. An enquiry conducted recently showed many newspapers were collecting money from vested interests in order to print news and then a prominent media journalist was caught up in an embarrassing controversy maneuvering between corporate houses. Compared to the media in India the unethical practices in the news of the world seemed so insipid. Though the Judiciary remained to some extent above the rot as the last bastion of democracy, it too suffered from the onslaught of the globalisation. The criminal law standards were diluted. Anti-labour judgements decimated labour law protection and led to the contractualisation and casualisation of labour throughout the country. Environmental law was interpreted in such a manner as to allow for unfettered corporate activity. In many High Courts, judges took the initiative to order the demolition of tens of thousands of homes of slum dwellers. Education was privatised with the Supreme Court leading the charge. Land acquisition judgements were delivered almost entirely against the farmers with every kind of corporate activity judicially determined as falling within the defi nition of public purpose. As a result, 50 million people were displaced in fi ve decades after Independence, after which the rate of displacement doubled. Every single constitutionally obnoxious piece of security legislation from the Terrorist and Disruptive Activity Act (TADA) to the Armed Forces Special Powers Act (AFSPA), to the Prevention of Terrorism Act (POTA), the various public safety acts, the Preventive Detention Act, the National Security Act and the Unlawful Activities Act were all helped to be perfectly constitutional. Later, Civil war began in this country as the institutions of democracy fell into ruin. The home minister announced that his information revealed that one-third of the six hundred plus districts of the country were under signifi cant levels of armed struggle. Thus while India managed to camoufl age the deteriorating human rights situation and package the nation as “rising India” and “shining India,” the reality was very different. Environmental degradation, the closure of public hospitals and public schools, widespread malnutrition, the proliferation of slums, the spread of corruption and the extensive use of torture was the real face of India. The natural opponents of this kind of globalisation – NGOs and civil society organisations and militant groups played their own role during this period. The militants do their own thing and fall outside this scope of this introduction. The NGOs and civil society groups that function within the framework of the Constitution though vocal in the 90’s began to change during the period of globalisation. There was much confusion, which arose in two ways. First came the neo-liberal perspective focusing on GDP growth and requiring the State to use some part of the corporate wealth generated for the poor. Secondly, governments fl ushed with funds during the globalisation period began to co-opt many prominent NGOs. The two streams intermingled at many points. The end result was that the human rights articulation became confused and blunted and human rights movements were sometimes betrayed. As governments became richer, they reached out to prominent leaders of NGOs and social move-

KALIYUG: The decline of human rights law in the period of globalisation vii INTRODUCTION ments. Together with the promise of funding, came the lure that the Union Government – the UPA – was in some sense more progressive than the communal NDA government and that it was the duty of the progressive individuals, if not to join, at least to work with the UPA. Betrayal after betrayal took place in the guise of assisting the UPA to devise progressive policies. All that these achieved were “crumbs off the table.” But while these sops were thrown in the direction of the working people as if they were beggars, the UPA government simultaneously embarked on a massive globalisation programme – the likes of which India had never seen before – to take away from the people by law and policy all the rights that they hitherto had. A prominent health rights NGO having many former Leftists in their ranks actively collaborated with the government to draft a Right to Healthcare Bill promoting public-private partnership, a euphemism for privatisation, in public healthcare. The Bill saw the role of the government not as the provider of free services for the poor but rather only as a regulator. This overlooked the decline of the State regulation during the period of globalisation where regulators landed up in the pockets of corporations and, soon after retirement, joined corporations as senior executives. There was an almost similar betrayal on legislation making with regard to the Right to Education. A prominent NGO representative was so servile that he circulated mails throughout the country to his friends in the education movement exhorting them to support the central government and confusing them with his crude understanding of what the legislation was intended to do. Along with him, many NGOs close to the central government also supported the privatisation of education which was formalised in the Statute. As a result, the Right to Education national campaigns and networks were fragmented into many parts arguing among themselves while the government went ahead with the legislation. Many funding agencies were also found compromised and they turned their support, not to the groups that stuck to the pure vision of education for all with the government centre-stage, but to the globalised version of the privatised education with top class services for the rich and third rate education for the poor. A similar co-option was seen on the anti-communal front where many tenacious anti-communal activists, perhaps tiring as they got older, decided to throw in their lot with the UPA on the fallacious presumption that the Union Government was genuinely secular. One does not blame them but their comrades in the social movements miss them. For now, their voices are muted when communal acts are committed by the central government. On the Right to Food, one of the most vigorous and extensive national networks declined particularly over the last fi ve years as some leaders of the movement began to hob-nob with the UPA and ultimately joined the National Advisory Council believing that this would be the Left wing of the Congress and would ultimately prevail. This was a terrible mistake. First, the Congress was persuaded by some elements to bring about legislations at a time when it was known that legislation would only take the movement backwards. Secondly, persons from the movement actively began drafting and held out to the movements that their drafts would be accepted. By so doing, tremendous confusion was caused in the network of Right to Food activists who saw some of their leaders speaking in different voices and ultimately heard them making assurances and promises that they could not keep. Moreover, the transition from the Right to Food – which is basically law and entitlements based and overemphasises legal remedies and governments good conscience – to food sovereignty viii KALIYUG: The Decline of Human Rights Law in the Period of Globalisation INTRODUCTION which put centrestage the struggle of the Tribals, Dalits, farmers and labourers to land, forests and water, never took place. Thus it remained stunted and increasingly NGOised. A parallel development took place on the National Rural Employment Guarantee Act (NREGA) were a pretty good Statute was drafted with the help of social activists albeit with a fatal defect – that the Act had a very poor and bureaucratic enforcement mechanism. After the law was enacted the various arms of the government, particularly the fi nance ministry, sabotaged the implementation of the Statute. But some of the persons that had led the campaign on employment were muted in their response and declined to take on the government when the implementation began to falter terribly. It was said that they felt that if criticism was made the Statute itself would be done away with. Whatever the apprehensions might have been, the conduct of some of the leaders was disappointing. At a time when the progress of implementation was so poor some of the leaders wrote articles in the national newspapers praising the implementation of the Act and criticising those – including the Comptroller & Auditor General – who found fault in the implementation. As a result, to the implementation is very poor today. The movement is weakened by some of those who led the movement so well once upon a time. A similar development took place on the Right to Information where Anna Hazare and his team provoked a national debate on corruption and raised the profi le of the issue to a level hitherto not dreamed of. Immediately, the sleeper cells of the Congress including some reputed NGOs and social movements made a public strident critique of Hazare’s initiative. They pretended as if they were separate from the Congress but it was not too diffi cult for people in the movement to understand from the timing of their attack that they were springing to the defence of the discredited central government. A common thread running through the betrayal was the infantile notion that the drafting of a law would automatically result in the increased benefi ts for the working people. A common answer given to those who found the drafts inadequate was that the movement should accept certain benefi ts today and hope for amendments to be made later providing additional facilities. But what the revolutionaries of yesteryear now turned into consultants forgot was that the Statutes were drafted to institutionalise the economic policies of the globalisation, the World Bank and the IMF, to privatise and bring about structural reform that would dismantle the Constitution and the obligations of the State, and to take away the protection given to labour, the homeless, the indigenous people and the criminal accused in the decades preceding cruel and immoral globalisation. Every Tom, Dick and Harry began the drafting of laws. Instead of mingling with the people and organising with them, we turned our attention and the attention of the social movements towards legislation. Meetings were held in the corridors of power where representatives of the dispossessed were given a chance to enter the hallowed premises. Committees were formed, and then changed, and then changed once again only to have the ultimate drafts vetted by the government lawyers who thrashed the earlier presentations and purported to start all over again. At the end of this painful, convoluted and completely misleading process, where the working people were made to believe that something would ultimately emerge giving them substantial rights, fi nal drafts emerged that took away even the existing rights and altered the framework into one of privatisation and structural adjustment. What a grand charade! What a grand tamasha! What a betrayal!

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ix INTRODUCTION

This is why when Anna Hazare and his team sought to change the rules of the game by going to the public with their successive drafts and insisting on the videographing of the drafting committees deliberations, there was much criticism not only from the government but also from certain sections of civil society. This is what we have come to. Like a bolt from the blue, the Judiciary stepped to assert what social activists have always said – that globalisation was “rapacious.” In Nandini vs State of Chhattisgarh, the Supreme Court began its decision in the following manner: “the State of Chhattisgarh, claims that it has a constitutional sanction to perpetrate, indefi nitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by the Maoist/Naxalite extremists. The State of Chhattisgarh also claims that it has the powers to arm, with guns, thousands of mostly illiterate or barely literate young men of the Tribal tracts, who are appointed as temporary police offi cers, with little or no training, and even lesser clarity about the chain of command to control the activities of such a force, to fi ght the battles against the alleged Maoist extremists.” Then comparing the situation in Dantewada, State of Chhattisgarh with the situation described in the “Heart of Darkness” by Joseph Conrad, the Supreme Court refers to Conrad’s description of the “the grisly, and the macabre states of mind and justifi cations advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance…the vilest scramble for loot that ever disfi gured the history of human conscience.” Warning that “people do not take up arms, in an organised fashion, against the might of the State, or against fellow human beings without rhyme or reason,” the Court concluded that when the State seeks to impose order and “when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.” What was doubly dismaying to us, said the Court “was the repeated insistence, by the respondents, that the only option for the State was to rule with an iron fi st, establish a social order in which every person is to be treated as suspect, and any one speaking for human rights of citizens to be deemed as suspect, and a Maoist.” “That violent agitator politics, and armed rebellion in many pockets of India have intimate linkage to socio-economic circumstances, endemic inequalities, and a corrupt social and State order that preys on such inequalities has been well recognised,” said the Court and asked, “are governments and political parties in India able to grasp the socio-economic dynamics encouraging these politics or are they stuck with a security-oriented approach that further fuels them?” Relying on the observations of an expert group constituted by the Planning Commission of India, which observed that “rapacious exploitation by the contractors, middlemen, traders and the greedy sections of the larger society intent on grabbing their resources and violating their dignity” was the crux of the problem, the Court concluded that the rapid exploitation of resources by the mining mafi a has led to the “evisceration of the moral authority of the State.” On the one hand said the Court, “the State subsidises the private sector, giving it tax break after tax break, while simultaneously citing lack of revenues as the primary reason for not fulfi lling its obligations to provide adequate cover to the poor through social welfare measures.” Turning its attention to the Salwa Judum – the vigilante force established by the State of Chhat- x KALIYUG: The Decline of Human Rights Law in the Period of Globalisation INTRODUCTION tisgarh and funded by the Union Government, the Supreme Court said, “we must at this point also express our deepest dismay at the role of Union of India in these matters. …it is the fi nancial assistance being given by the Union that is enabling the State of Chhattisgarh to appoint barely literate Tribal youth as SPOs, and given fi rearms to undertake tasks that only members of the offi cial and formal police force ought to be undertaking.” Concluding, the Supreme Court directed the State of Chhattisgarh and the Union Government to dismantle and disarm the vigilante group immediately. Another decision Ram Jethmalani vs Union of India, (writ petition (civil) No. 176 of 2009), was delivered by the Supreme Court almost at the same time. This petition was fi led seeking disclosure of the “astronomical” amounts of unaccounted money stashed away by the Indian in foreign banks and tax havens which had strong secrecy laws. Show cause notices were issued by the central government “yet, for unknown, and possibly unknowable, though easily surmisable, reasons the investigations into the matter proceeded at a laggardly pace.” The judgement begins with the Court expressing its “serious reservations about the responses of the Union of India” and found them “clearly evasive, confused, or originating in the denial mode.” Very reluctantly “only upon being repeatedly pressed by us, did the Union of India begin to admit that indeed the investigation was proceeding very slowly. It also became clear to us that in fact the investigation had completely stalled, in as much as custodial interrogation of Hassan Ali Khan had not even been sought for, even though he was very much resident in India. Further, it also appears now that even though his passport had been impounded, he was able to secure another passport from the RPO in Patna, possibly with the help or aid of a politician.” The Court concluded that “the absence of any satisfactory explanation of the slowness of the pace of investigation, and lack of any credible answers as to why the respondents did not act with respect to those actions that were feasible and within the ambit of powers of the enforcement directorate itself, such as custodial investigation, leads us to conclude that the lack of seriousness in the efforts of the respondents are contrary to the requirements of laws and constitutional obligations of the Union of India.” The Court then noted that “many names of the important persons, including leaders of some corporate giants, politically powerful people, and international arms dealers have cropped up,” and asked as to “whether the task of bringing foreign funds into India override all other constitutional concerns and obligations?” The amounts were staggering. “The volume of the alleged income taxes owed to the country, as demanded by the Union of India itself, and the volume of monies, by some accounts US $8.04 billion, and some other accounts in excess of Rs. 70,000 crores, that are said to have been routed through various bank accounts.” A second issue related to the Indians’ holding accounts in Liechtenstein. Though aware of this, the Government of India took no action. The German government then disclosed the names of the persons operating such accounts. Even then, the Government of India declined to investigate and prosecute. Procrastinating, Government of India told the Supreme Court that the avoidance of double taxation agreement with Germany prevented it from disclosing the names and that disclosure would jeopardise relationship between India and Germany. The Court, therefore, studied the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation xi INTRODUCTION agreement and concluded “that the said agreement, by itself, does not proscribe the disclosure of the relevant documents and details of the same, including the names of various bank account holders in Liechtenstein,” and that it was “disingenuous” for the government “to repeatedly claim that it is unable to reveal the documents and names as sought by the Petitioners on the ground that the same is proscribed by the said agreement.” Regarding the plea of the government that Article 26 of the agreement required the maintenance of secrecy, the Court concluded that “there is no absolute bar of secrecy. Instead the agreement specifi cally provides that the information may be disclosed in public court proceedings.” In any case, “comity of nations cannot be predicated upon clauses of secrecy that could hinder constitutional proceedings such as these, or criminal proceedings…No Treaty can be entered into, or interpreted, such that constitutional fealty is derogated from. The redundancy, that the Union of India presses, with respect to the last sentence of Article 26(1) of the double taxation agreement with Germany, necessarily transgresses upon the boundaries erected by our Constitution. It cannot be permitted.” In view of the reluctance of the Union of India to investigate, the Supreme Court appointed a special investigating team of high ranking government offi cials and presided over by two retired judges of the Supreme Court. This order upset the central government enormously. It is probable that some of the ministers or politicians of the present government as well as many politicians of the Opposition may fi gure in this black money scam. Politicians and bureaucrats across the political spectrum are up in arms against this judgement. Senior journalists working in the newspapers owned by corporations have written editorials and article after article condemning the “overreach” of the Supreme Court. A reading of the judgement clearly shows that the government condoned this heinous crime of stashing away money that would have landed up in the treasury, for decades. Only when it was established that there was a fundamental breakdown in the administration of the State impacting on constitutional governance, that the Supreme Court stepped in. As this book goes to the press, it is clear that Indian society is going through the period of Kaliyug – a time of darkness, untruth and despair. Never before in the history of Independent India, have the conditions of the working people declined so drastically that they do not have even food to eat and have to go to bed hungry day after day. Never before have the poor been treated with such indignity. Those begging on the streets of India are today being rounded up like cattle under the orders of several High Courts and then incarcerated under the provisions of the Bombay Beggars Act. Never before has the administration and the political governance of the State been likened to a ship of pirates looting the country in such an extreme way that even exploitation during colonial rule pales in comparison. God help this country.

–Colin Gonsalves August 15, 2011

xii KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CONTENTS

CHAPTER ONE THE RIGHT TO FOOD

The Indian Right to Food Case 3 The Politics of Hunger 38 No Will to Act 40 The Privatisation of Food 57 Sabotaging Public Distribution System 60 A False Pride 64 Food Security and Law: Lowering Depths, Growing Pangs 67 Poverty Line Excludes Many Hungry Persons 69 Right to Food 72 UN Rapporteur on the Right to Food Slams India 74 Book Review: Shying Away From Real Issues 77

CHAPTER TWO Right to Housing

The Right to Housing: The Indian Experience 81 And the Houses All Fell Down 96 Nowhere to Live – Urban Housing in India 97 Reflections on the Indian Experience 99

CHAPTER THREE HEALTHCARE

National Health Bill 107 Using PILs to Combat Maternal Mortality 110 Mental Health and Abortion Rights 112

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation xiii CONTENTS

The Sorry State of ARV 118 Drug Prices Set to Soar 120

CHAPTER FOUR ENVIRONMENT

The Bhopal Catastrophe: Politics, Conspiracy and Betrayal 125 Whither Human Rights? 141 Ban Asbestos Now 143

CHAPTER FIVE Tsunami

The Betrayal of Tsunami Survivors 147 Administration Most Foul 150 The Deadly Bureaucracy in the Andamans 155 Iron Curtain’s Mendacity 159

CHAPTER SIX LABOUR

Dismantling Labour Law in the Period of Globalisation 165 Decline in the Conditions of Contract Workers 178 SC Judgement in the SAIL Case 181 The Second Labour Commission Report: Never a More Anti-labour Policy 189

CHAPTER SEVEN SPECIAL ECONOMIC ZONES

SEZs Spell Doom for Workers 195 Nandigram 199

xiv KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CONTENTS

CHAPTER EIGHT CHILD RIGHTS

India Shining? Child Rights & the Law 207 Juvenile Injustice: Bill Against Child Marriage Full of Loopholes 209 Children: Emaciated and Abused 211

CHAPTER NINE DALITS

Barriers Impossible to Overcome 217 Misused? Or Not Used At All? 220

CHAPTER TEN TRIBALS

Judicial Tyranny of Land Acquisition 227 Saving Tribals, Trees and Tigers 239

CHAPTER ELEVEN WOMEN

Law Discriminates Against Women 245 No Country Burns its Women 253

CHAPTER TWELVE RIGHT TO INFORMATION

RTI : Miles to Go 259 To Know is to Be 265

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation xv CONTENTS

CHAPTER THIRTEEN COMMUNALISM

Communalism and the Indian Legal System 269 The Structure of the Nation-State under Threat 272 Communal Violence Bill: More Power to the Police, not the Victims 275 Godhra 282 Rewards for Rioting 284

CHAPTER FOURTEEN CRIMINAL JUSTICE

Time Limit for Criminal Trials 289 Legal Aid is in the Nation’s Interest: Lumpen not Learned 291 The Tragic Decline of the Criminal Law Jurisprudence 293 Hail Bail, No Jail 315 Rot in the Prisons 317 India Needs to Urgently Reconsider its Position on the Death Sentence 320 Vice of Arbitrariness 323 Afzal’s Case 326 In Defence of Afzal 332 Why the Death Penalty? 335 Right to Legal Aid 337 Why Witnesses Turn Hostile? 339 Should Life Imprisonment be for Life? 341 The Fourth Quarter of Time 342 A Knee-jerk Reaction: Politicians are Still not Listening 344 Death to the Death Penalty 346

xvi KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CONTENTS

CHAPTER FIFTEEN JUDICIARY

Delay: Not the Judiciary’s Fault 351 The Lok Adalats: Despair in People’s Court 355 Judicial Overreach? 357 Zahira Sheikh : Judiciary’s Finest Hour 359 Judiciary must be Popular with the People 361

CHAPTER SIXTEEN UNIFORM CIVIL CODE

We Need a Uniform Civil Code 365 The Judiciary and the Uniform Civil Code 367 Majoritarian Political Tendency 374

CHAPTER SEVENTEEN POLICE REFORM

Institutionalised Communalism in the Police Force 379 Fascist Attack on the Bar 384 Policing the Police 392 Encounters and Police Misinformation 394 Book Review: A Remarkable Reading 397

CHAPTER EIGHTEEN NORTHEAST

Critique on the Justice Reddy Report: The Fake Repeal of AFSPA 403 The Sorrow of Manipur 407 The Killing of Manorama: The State and Judiciary Have Failed to Curb Torture 409

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation xvii CONTENTS

CHAPTER NINETEEN NEPAL

Time for the King to Go 413 A Nepali Textbook for India 415 Constituent Assembly or Counter-revolution? 417 Future Tense 423

CHAPTER TWENTY MISCELLANEOUS

No Budgets for the Fundamental Rights 429 The Indian Supreme Court and Public Interest Litigation 434 Constitutional Law: Reflections on the Indian Experience 440 Trafficking of Women and Children on the Rise 443 Two-Child Norm: A Terrible Crisis in the Making 446 Legal Awareness on the Issue of Disability Rights Needed 452 The Jammu & Kashmir High Court and Economic Rights 454 Media: the Sting Operations 459 Critique: HM Seervai on Jinnah 461 Integration of International Refugee Conventions in Indian Law 464 WTO: Impact on the Economic Rights 470 The ONGC in Sudan 471 Kaliyug: The Descent Into Darkness 473

xviii KALIYUG: The Decline of Human Rights Law in the Period of Globalisation

THE RIGHT TO FOOD ONE

1. The Indian Right to Food Case 2. The Politics of Hunger 3. No Will to Act 4. The Privatisation of Food 5. Sabotaging Public Distribution System CHAPTER 6. A False Pride 7. Food Security and Law: Lowering Depths, Growing Pangs 8. Poverty Line Excludes Many Hungry Persons 9. Right to Food 10. UN Rapporteur on the Right to Food Slams India 11. Book Review: Shying Away From Real Issues Photo: Rajanish Kakade

There is plenty of grain lying in the godowns of India and that if one were to put these grains in a straight line they would go to the moon and back. Why then is there so much hunger? Why do the governments not distribute grain to the poor?

|2 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE INDIAN RIGHT TO FOOD CASE

rit petition (civil) no. 196 of 2001, in the case of People’s Union for Civil Liberties (PUCL) vs Union of India and all the States and Union Territories of India, popularly known as Wthe Right to Food (RTF) case, had a rather casual beginning. I was visiting Jaipur in the state of Rajasthan to attend a meeting on police reform and turned up at PUCL activist Kavita Srivastava’s home early morning for breakfast. Jean Dreze, the economist was also there with other friends. He suggested that we visit some of the villages outside Jaipur city to take a look at the situation on hunger. On the spur of the moment we got into a jeep and went to these villages. Though I was familiar with the situation in the rural areas, the starkness of hunger and malnutrition in the Rajasthan countryside was really unsettling. Jean then explained the situation of hunger amidst plenty. He told us that there were 60 million tons (MT) of grain lying in the godowns of India and that if one were to put these grains in a straight line they would go to the moon and back. Why then was there so much hunger? Why did the government not distribute grain to the poor? How could politicians and ministers allow their citizens to die of starvation when they had it in their power to release food for the poor? These were the questions that confronted us immediately and for which there were no easy answers. I suggested, to my friend, that we ought to try a public interest petition in the Supreme Court of India. They readily agreed. Jean and Kavita put the data together for Rajasthan. The petition, originally drafted, was restricted to the state of Rajasthan and sought only the implementation of the Famine Codes. The Famine Codes The Famine Codes were a set of Executive instructions issued prior to Independence by the Brit- ish Government. These Codes made interesting reading in the context of the utter callousness of the ministers and the administrative services. They were designed to set up an “effi cient system of intelligence” with respect to famines and scarcities so that the administration would be warned in time of the prospect of a famine and would not be taken by surprise. The Codes were also meant to put in place a programme for relief works to “fortify the people” in diffi cult times (Famine code of the state of Rajasthan, writ petition (C) 196 of 2001 in the case PUCL and others vs Union of India and others, page 55). These Codes, in turn, relied upon the rules for the collection and preparation of statistics as laid down in the Land Record Manuals and the Tenancy Statutes of the various states. The Patwari, a local offi cial, was required to maintain a diary regarding the general condition of crops and fodder in his area, the availability of drinking water, the occurrence of any calamity − such as locusts, fl ood, disease and drought, rainfall and migration. The Code laid down the duties of the Inspector of Land Records requiring the offi cer “to watch the season, so as to detect early signs of coming distress and to be ready to report

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |3 CHAPTER ONE

(57).” The Tehsildar, a more senior offi cial, was required to supervise the junior offi cials and to comment on calamities and mortality among men and cattle. Likewise the sub-divisional offi c- ers, the collectors and the relief commissioners − a whole hierarchy of offi cials − were required to keep track of the situation and take action wherever necessary. “There is no greater evil than the depression of the people; for moral depression leads directly to physical deterioration (78),” the Codes warned. With the onset of any calamity, and in order to prevent the migration of people and cattle in distress, the authorities were required to immediately start “works of permanent public utility (62)” with special attention given to “desert areas and hilly tracts inhabited by Scheduled Tribes and Backward Classes (62).” These were classes in the population specifi cally mentioned in the Constitution of India as suffering a historical, social and economic backwardness and deprivation. The public works were meant to provide employment for “six months” for “twenty per cent of the population (63).” The Codes set out the facts that would indicate the onset of scarcity or famine as follows: i. Sudden migration of cattle ii. Sudden migration of persons to cities and towns or to better areas iii. Sudden rise in prices of foodgrains and fodder iv. Sudden increase in crimes v. Increase in or resort to begging vi. Sudden fall in rates of wages of labour vii. Shrinkage in private charity viii. Deterioration of health of cattle ix. Shrinkage of credit facilities x. Decrease in civil litigation xi. Failure of crops and fodder xii. Shrinkage of water level in wells and tanks With the onset of the famine, the authorities were to grant loans liberally, suspend the collection of land revenue and give wide publicity to relief programmes and the construction of roads, tanks, canals were to be immediately started. Elaborate provisions were made for fodder to be made available for cattle. Cattle camps were to be opened. Agriculturalists were to be provided with seeds and implements. Artisans were to be provided with tools and stock-in-trade. Water supply arrangements were to be made to the railways, private tankers and by the drawing of water from wells by the “employment of bullocks” (140). Tools and shelter were to be provided, persons, coming for work, were to be admitted and registered and paid proper wages and the adequate supply of food was to be ensured. Interestingly, it was stated, as the duty of the offi cer in charge, that he conduct a “daily hearing” and an “investigation of complaints” (95) with respect to relief works. Every famine Code had a specifi c entitlement giving every person, who came forward for work,

|4 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD employment. Those who were “physically unfi t of disabled” (101) were to be provided “gratuitous relief” (101). Wages were fi xed at the “lowest amount suffi cient to maintain a healthy person in health” (103). A rest day, with payment, was also provided. If childbirth occurred, while a woman was at work, the mother would be given Rs. 1.5 per day “for medical comforts” (104) and was permitted paid leave for three weeks. There was a special provision for distressed weavers. Gratuitous relief was to be provided to: “a) The aged and infi rm who are incapable of earning their living b) The blind, crippled, insane and idiots c) All persons whose attendance on the sick or infant children at their own home is absolutely necessary d) Women who are debarred by custom from appearing in public and are unable to provide themselves with suffi cient food e) Men who are unable to earn their livelihood by fi nding employment at the relief works and are in danger of starvation f) Pregnant women or women with two or more young children or with the children at the breast; and g) Young children whose relations will not or cannot support them and the like (133)” Every adult was to be given Rs. 0.5 and every child was to be given Rs. 0.3 per day as in 1962 The district medical offi cers were required to maintain a list of competent vaids and hakims operating in the district whose services would be available in an emergency. These were traditional medicine persons following the disciplines of Indian medicine. The population was to be inoculat- ed against epidemics. A satisfactory supply of drinking water was to be secured. “Deep trenched latrines” were to be constructed (98). Provisions were in place for dealing with the outbreak of cholera. Mobile units − “of medical and veterinary dispensaries” (113) − were to be provided. These provisions have been set out in detail to indicate how serious governments were in those days about bringing quick relief to people in distress. When we began the case in 2001, government offi cials were uniformly ignorant not only of the provisions of the Famine Codes in their states, but of the very existence of the Famine Code itself! Dealing with the Famine Codes, on May 2, 2003, the Court “directed the implementation of the Famine Codes.” The petition The petition began by referring to the “innumerable cases of starvation deaths reported across the country...largely due to non-availability of food to people over a long period of time.” There was “no food available in the Public Distribution System (PDS) and prices at commercial shops are exorbitant, making it impossible for people to purchase foodgrains”(4). The petitioner pointed out that the buffer stocks of grains, with the central government at that time, was approximately 20 MT. The minister for consumer affairs and public distribution was quoted as saying that there was “surplus food stocks in the country” (8). Some 30,583 villages in Rajasthan, with a

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |5 CHAPTER ONE population of 33 million persons, were drought affected. At the time of fi ling of the petition, the people had been through two previous years of drought. “Things were very bad…matters had reached an alarming state.” The petitioner warned “many people are facing starvation and will die soon if nothing is done immediately…there is massive unemployment, the people are sinking deeper and deeper into debt, children are dropping out of school, and cattle are either dying or being abandoned in large numbers because their owners cannot provide them with fodder…the relief measures provided by the state of Rajasthan and the Union of India have thus far proved inadequate, incompetent and unable to stem the misery…” (9). The petitioner complained that though 50 million tons of grains were lying idle in public godowns in Rajasthan and across the country, so much so that government had run out of storage space, yet people were dying. In some cases, petitioner pointed out, “there is barely a distance of 75 kilometres between these godowns and the places where starvation is rampant”(10). Quoting the national family survey (1998-99) the petitioner pointed out that, even in ordinary years, more than half of all the children in Rajasthan below three years were malnourished and about half of all women suffered from anemia. According to the National Sample Survey data, in 1993-4, almost half of the rural population in Rajasthan was below the poverty line (11). Summing up the petitioner charged the state of Rajasthan and the Union of India as having “failed abjectly in discharging its responsibility…under Article 21 (The Right to Life) of the Constitution of India.”(18) The petitioner quoted from an article written by Prof Madhura Swaminathan of the Indian Statistical Institute indicating that “the courses associated with maintaining of buffer stocks in 2000-01 accounts for nearly 45 percent of the so-called food subsidy” (26). Referring to the reported statements of a parliamentary committee, the petitioner submitted − “rotting grains may account for as much as one million tons of current stocks. Some of it is not even fi t for animal consumption and may end up being dumped in the sea. It seems that the Government of India would rather feed the fi sh in the Arabian Sea than the people of India” (26). The petitioner, on the basis of these pleadings, sought directions from the Supreme Court to the state of Rajasthan and the Union of India to enforce the Famine Codes, to release foodgrains lying in the godowns and to frame a scientifi c and reasonable scheme for the distribution of foodgrain in the drought affected areas of the state. I remember telling my colleagues, working on the case, that we ought not to spread the word too wide as I felt the chances of admission were remote. I had in mind the cryptic order of the Su- preme Court of 1996 when the Supreme Court dismissed a similar petition, fi led by the legendry social activist Kishan Pattanaik, making similar allegations against the state of Orissa in the background of repeated deaths by starvation reported throughout the state. The Supreme Court dismissed this petition with the following words: “In this letter, they have brought to the notice of this Court the miserable condition of the inhabitants of the district of Kalahandi in the state of Orissa on account of extreme poverty. It is alleged that the people of Kalahandi, in order to save themselves from starvation deaths, are compelled to subject themselves to the distress sale of labour on a large scale resulting in exploitation of landless labourers by the well-to-do landlords. It is alleged that in view of distress sale of labour and paddy, the small peasants are deprived of the legitimate price of paddy and they somehow eke out their daily existence. Further, their case is that

|6 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

being victims of ‘chill penury,’ the people of Kalahandi are sometimes forced to sell their children…Another writ petition being writ petition (civil) No. 1081 of of 1987 has been fi led by the Indian People’s Front. This writ petition not only relates to the misery of the people of Kalahandi, but also of the people of another district, namely, the district of Koraput. In this writ petition, it has been alleged that the starvation deaths of the inhabitants of the districts of Koraput and Kalahandi are due to utter negligence and callousness of the administration and the Government of Orissa. It is alleged that the starvation deaths, drought, diseases and famine have been the continuing phenomena in the said two districts since 1985. The Government of Orissa has been accused of utter failure to protect the lives of the people of the two districts…The measures which have been taken and are being taken, as stated in the written note submitted by the learned Advocate General, have been briefl y mentioned. There is no reason not to accept the statements made on behalf of the State of Orissa that the measures, stated above, are being taken for the purpose of mitigating hunger, poverty, starvation deaths, etc., of the people of Kalahandi. If such measures are taken, there can be no doubt that it will alleviate to a great extent, the miseries of the people of Kalahandi. Such measures are also being taken in respect of the district of Koraput. We hope and trust that in view of the prompt action that has been taken by the government, soon the miseries of the people of these two districts will be over.” (Kishan Pattanaik vs State of Orissa (1989 Supp. (1) SCC.258). This is why we were all deeply apprehensive about the outcome of the case. We had, of course, nothing to lose. Public Interest Litigation At this stage it may be useful to digress a bit and say a few words about Public Interest Litiga- tion (PIL) in India. This is necessary because a lay reader may fi nd it very diffi cult to understand how events in Court took the turn that they did. How did the Court permit a petition to be fi led on behalf of over 300 million people without the signature of a single affected person and without reference to a single individualised case of malnutrition or starvation? How was the petitioner to gather the extensive documentation required for the case when the PUCL had no funds of its own and the task was gigantic? Was it permissible for the Court to make extensive and minute directions on every aspect of food security – matters usually understood as exclusively within the sphere of the Executive? Could the state not claim to have fi nancial constraints limiting its ability to do away with the hunger prevailing on such a large-scale? How could the Court acquire the expertise to deal with complicated issues of nutrition, policy and fi nance, when it admittedly did not possess that when the case was fi led? Given the notoriously low level of compliance, with Court orders, would the directions of the Court not remain mere paper instructions incapable of being enforced? The answer to these questions lie in the revolutionary development that took place in the Indian jurisprudence in the 80s which gave birth to a new branch of public interest law commonly known as PIL. The fi rst step was taken by the Supreme Court in SP Gupta vs Union of India (1981) Supp. SCC.87) when the Supreme Court broadened the application of the legal principle of locus standi saying:

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |7 CHAPTER ONE

“Where a legal wrong…is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right…and any such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court and in case of breach of any Fundamental Right, in this Court under Article 32 seeking judicial redress. Where the affected persons are really helpless the Supreme Court will not insist on a regular writ petition to be fi led. The Court will readily respond even to a letter addressed by such individual acting pro bono publico, despite the fact that formal rules exist with regard to fi ling of petitions, the Court has to innovate new methods and devise new strategies for the purpose of people who are denied their basic human rights and to whom freedom and liberty have no meaning (210). The strict rule of standing which insists that only a person who has suffered a specifi c legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome inter-loper but one who has suffi cient interest in the proceeding”(212). The case begins Mondays and Fridays are exciting days in the Supreme Court. These are the fresh matter days. The Supreme Court currently consists of 24 Judges sitting usually in Benches of two-judges with an occasional three-Judge Bench. Each Bench would have, on the admission days, about 70 matters placed before it. This is an enormously high workload. The Supreme Court of India is by far the Court with the heaviest workload in the world. Between Tuesday and Thursday, fi nal hearing matters are dealt with. The pace slows down and matters are heard somewhat at length. Mondays and Fridays see a great deal of activities in every court with lawyers having to present their case in a minute or so. The atmosphere is like a circus with lawyers being aggressive at times, interrupting judges, speaking while the judges are speaking and arguing with their opponents. The judges, to their credit, put in long hours of work, and work on every weekend and come to court fairly well prepared, are not ruffl ed by the carnivalesque atmosphere and fi nish their quota of 70 cases by lunch time! It was on such a day that the Right to Food case came up for hearing before a three-Judge Bench. This was one of my fi rst cases before the Supreme Court. I did not have to argue. Justice Kirpal, the presiding judge, said, as he opened the papers, “this cannot be. We cannot allow the state of affairs to continue” (order dated May 9, 2001). Issuing notices to the respondents, to show cause, he orally requested the Attorney General of India to appear in the matter and we were off and running! Cut the flab somewhere else On 23 July 2001 when the Attorney General Soli J. Sorabjee appeared, one of his fi rst statements was to the effect that PIL was not an adversarial litigation. He then went on to say that though he appreciated the substance of the petition, India was a country with a huge population and, given the fi nancial constraints, it was diffi cult to do away with hunger and malnutrition. Till that day, it was common perception that a large country like India could never really be able to do away with malnourishment because that would require huge investments which the State was just not in

|8 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD a position to do. Prior to the PUCL case, the courts were generally very reluctant to make orders imposing huge liabilities on the government. Perhaps thinking that the Supreme Court would also, in this case, go the same way, the Attorney General elaborated a bit on the fi nancial crunch. It was at this stage that Mr Justice Kirpal said “cut the fl ab somewhere else.” When the Attorney General persisted somewhat mildly, Mr Justice Kirpal elaborated, “either you do it or we will tell you how to do it.” That was the end of the government’s demur on the inadequacy of State resources. Never was the argument repeated after that. Incidentally, the Attorney General played a pivotal role in getting his bureaucrats to understand that they had to take this matter seriously. Without his assistance, day after day, many of the orders obtained may not have been possible. In any case, the State cannot plead inadequacy of resources in cases where it is alleged that the State has failed to protect the Fundamental Rights of its citizens. In Municipal Council, Ratlam vs Vardichand (1980.4.SCC.162), the Supreme Court held: “The key question we have to answer is whether by affi rmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. At issue is the coming of age of that branch of public law bearing on community actions and the Court’s power to force public bodies under public duties to implement specifi c plans in response to public grievances (163)…The statutory setting being thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insuffi cient it cannot carry out the duties under Section 123 of the Act.” ...The plea of the municipality that notwithstanding the public nuisance, fi nancial inability validity exonerates it from statutory liability has no juridical basis. The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profl igate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be (170). A responsible municipal council constituted for the precise purpose of preserving public health and providing better fi nances cannot run away from its principal duty by pleading fi nancial inability. Decency and dignity are non-negotiable facets of human rights and are a fi rst charge on local self-governing bodies…The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affi rmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile…(171). The law will relentlessly be enforced and the plea of poor fi nance will be poor alibi when people in misery cry for justice (174).” Amongst plenty there is scarcity On July 23, 2001 the Supreme Court directed the petitioner to amend the petition and make all the states and Union Territories, party to the petition. The Court also made the following order: “In our opinion, what is of utmost importance is to see that food is provided to the aged, infi rm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |9 CHAPTER ONE

family do not have suffi cient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent, leading to malnourishment, starvation and other related problems….By way of an interim order, we direct the states to see that all the PDS shops, if closed, are re-opened and start functioning within one week from today and regular supplies made.” On August 2, 2001, the Supreme Court made the following order: “The anxiety of the Court is to see that the poor and the destitute and the weaker sections of the society do not suffer from hunger and starvation. The prevention of the same is one of the prime responsibilities of the government – whether central or the state. How this is to be ensured would be a matter of policy which is best left to the government. All that the Court has to be satisfi ed and which it may have to ensure is that the foodgrains which are overfl owing in the storage receptacles, especially of FCI godowns and which are in abundance, should not be wasted by dumping into the sea or eaten by the rats. Mere schemes without any implementation are of no use. What is important is that the food must reach the hungry.” The legal team The admission of the petition enthused Kavita Srivastava of the PUCL and Jean Dreze and our team of lawyers enormously. Apart from Aparna Bhat, the advocate on record (AOR) and one of the founder directors of the Human Rights Law Network, Delhi, we also had Ramesh Kumar and, of course, the erudite pipe smoking Dr Yug Chaudhry. We worked on the petition with fervour late into the night. As the case progressed, Yug left Delhi to set up his practice in Bombay, Aparna and Ramesh established their independent offi ce. A new group of young lawyers − Anup Kumar Srivastava, Jai Singh, Vipin Mathew Benjamin, Pooja Sharma, Alban Toppo and Divya Jyoti Jaipu- riar− joined the team. Targeted Public Distribution System On September 2, 2001, the learned Attorney General told the Court that “sixteen states and Union Territories have not as yet identifi ed the Below Poverty Line (BPL) families.” The Court directed them to do so within two weeks. On September 17, 2001, the Court found that BPL families had still not been identifi ed. “We are not satisfi ed,” said the Court, “that any such exercise in the right earnestness has been undertaken.” The Supreme Court granted them some more time to comply. On that day a direction was made to “all the state governments to forthwith lift the entire allotment of foodgrains from the central government under the various schemes and disburse the same in accordance with the Scheme.” The Court also directed that “the food for work programme in the scarcity areas should also be implemented by the various states to the extent possible.” The original petition, it may be remembered, had pleadings only with respect to the State of Rajasthan. The reliefs sought related largely to the Famine Codes. With the expansion of the framework of the case to the national level, it was necessary to think afresh on the scope and ambit of the case. After struggling with various alternatives and after extensive discussions with groups and individuals, active on the Right to Food, we decided to proceed on the basis of

|10 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD existing government schemes, that provided for nutrition to be given to the poor, that were being poorly implemented. Thus, we pegged the case on an existing government programme that had no legal entitlement and could be discontinued by the state at any time. Nevertheless, they provided a coherent and consistent way forward since they were well understood and the state was not inclined to disown them during the Court proceedings. Moreover, such an approach made for easy argument since it was nobody’s case, certainly not the government’s case, that these programmes were not be implemented, or that excuses were to be tolerated for the programmes’ partial implementation. The enormous fi nancial and administrative implication, for the central and the state governments, did not occur to anyone at that time as counsel, for the various governments, did not really believe that the case had much of a future. They thought it would be, like most cases, a lot of hot air and publicity, but with no real implementation. The approach thus turned out to be a winner and put the government on a back foot. On November 28, 2001, the Supreme Court made one of its most important orders. This was made by a Bench of Justice BN Kirpal and Justice KG Balakrishnan. The latter became the Chief Justice of India a few years later and was quoted in the newspapers, on assuming offi ce, as saying that this order was one of the most satisfying of his judicial career. The order directed the Union and the states to fully comply with the Targeted Public Distribution Scheme (TPDS) by identifying all BPL families, issuing cards and commencing the distribution of 25 kg of grain per family per month. The Delhi Government was directed to ensure that the application forms for TPDS were available free as a grievance was made by the petitioner that the offi cers were charging the public for copies of the application form. Dealing with a residual complaint − that the ration shops were not remaining open and that persons would travel long distances only to fi nd the ration shops non-operational − the Supreme Court directed all ration shops to “remain open throughout the month, during fi xed hours, the details of which will be displayed on the notice board.” The petition then began to focus on corruption in the Public Distribution System (PDS), the way in which slicences were issued to ration shop owners and the dubious way in which vigilance committees were constituted as a result of which large scale pilferage took place in the Public Distribution System resulting in the denial of grain to the poor. The petitioner fi led interlocutory application (IA) 41 of 2004 after NDTV, a leading TV channel, aired a clip showing trucks loading grain for the PDS from the Food Corporation of India (FCI) godowns. The footage showed the trucks picking up the grain, but instead of going to the ration shops the trucks went to certain fl our mills and deposited the sacks of grain there. The application relied on the report of Parivartan, a Delhi-based NGO, that had obtained copies of the registers and other records maintained by the owners of certain ration shops. After getting these records, Parivartan conducted a public hearing in Delhi where a panel of experts − including police offi cers and government offi cials of the department of food and civil supplies and consumer affairs, Government of NCT of Delhi − were present. The documents − obtained from the ration shops − clashed with those in the possession of benefi ciaries. the records of the ration shops showed that grains had been distributed though ration cards did not have any entry showing that grains were given to the benefi ciariesd. This clearly established that a large quantity of grain was illegally shown as being distributed while actually this grain was diverted to the black market. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |11 CHAPTER ONE

But at the same time, the benefi ciaries complained that they had been told, by the ration shop owners, that grain was not available. Other records − regarding payment by the benefi ciaries for the grain allegedly given to them − were also proved to have been fabricated. Signatures − of the benefi ciaries − were forged on the receipt books available with the ration shop owners. Thus, a fi ctitious record was created to show that benefi ciaries were actually paying for the grain supposed to be distributed. Thus, a well-settled and elaborate system was created in each ration shop for the falsifi cation of records so that the grain could be sold in the open market. In many instances it was found that the ration cards were kept by the ration shops themselves, instead of being handed over to the benefi ciaries. In many cases, it was found that the ration shop owners had created duplicate ration cards in order to siphon away grain. The social audits, done by Pari- vartan and presented in the public hearing, concluded that misappropriation was to the extent of 55 percent in the case of kerosene, 93 percent in the case of wheat and 96 percent in the case of rice. Parivartan also presented evidence, before the panel, showing that though repeated complaints were made to the offi cials − in the department of food and civil supplies and consumer affairs, Government of NCT of Delhi − regarding corruption, the offi cials either refused to act on the complaint or, when they did take action, imposed a small fi ne of Rs. 500 on the ration shop owners for acts of major fraud and let them off unpunished. The pleading showed that there was collusion between the offi cials of food and civil supplies department of the Government of Delhi and the ration shop owners. The evidence − regarding the collusion between the police and the corrupt ration shop owners − was equally damning. Even though criminal complaints were sought to be registered with the police regarding allegations of cheating and fraud, the police refused to register the fi rst information report (FIR) telling the activists of Parivartan that the right to register a criminal complaint was the sole prerogative of the offi cials of the Delhi Government and not the right of the public. This was openly stated by the deputy commissioner of police who was a member of the panel hearing of the depositions of slum dwellers made during the public hearing. The deputy commissioner had no answer when he was shown a copy of the Essential Commodities Act and, particularly, the provisions regarding the fi ling of complaints wherein any member of the public was entitled to register a criminal complaint. The panel hearing, therefore, exposed an unholy nexus among the police, the offi cials of the department of food and civil supplies and consumer affairs, Government of NCT of Delhi, the ration shop owners and the local Member of the Legisla- tive Assembly (MLA). The latter’s crucial involvement was demonstrated by documents showing that the MLA was the chairperson of the committee set up for licensing of the ration shops, and he was also the chairperson of the vigilance committee which was supposed to carry out surprise inspections and punish erring ration shop owners. Therefore, this politician appointed his person to run the ration shop and since the MLA was responsible for monitoring and punishment, nothing got done. Numerous instance, where complaints were made and no action taken, were brought to the notice of the Courn. The Essential Commodities Act, 1955 was enacted by the central government in order to ensure that essential commodities − such as grain and kerosene oil − were made available to the poor at affordable prices. Section 3, of the Act, empowers the central government to make orders for the maintenance of supplies and for securing the availability and distribution of essential com-

|12 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD modities in the Public Distribution System. Accordingly, the Public Distribution System (Control) Order, 2001 was made providing for, inter alia : (e) the identifi cation of families living below the poverty line,(BPL); (ii) providing a ration card to families; (iii, for deciding the issue price for grains in the PDS, for licencing ration shops; (iv) for monitoring, search and seizure: (v) and for providing penalties for persons who breach the provisions of the Act. This order authorised the Gram Sabhas to fi nalise the list of benefi ciaries belonging to the BPL and Antyodaya Anna Yojana (AAY) categories and laid down that no eligible applicant would be denied a ration card. Ration card holders would be entitled to draw essential commodities from the ration shops on a weekly basis. The order stipulated that the ration card would have to be provided within one month of the application being made. The Food Corporation of India was designated as the central government agency to store and ensure the physical delivery of foodgrains of fair and average quality to the state governments for distribution in the PDS. The state governments, in turn, were required to make arrangements for taking delivery from the FCI godowns and to ensure delivery to the ration shops. The state governments were responsible for monitoring the system. Reference was made − in the Order to a Citizens’ Charter issued by the central government − which was binding on the state government. The public hearing, held by Parivartan, was unique in the sense that, for the fi rst time, Below Poverty Line persons − living in areas such as Ravidas Camp, RK Puram, Kalyanpuri, Welcome Colony and elsewhere − were able to confront senior offi cials from the police and the Govern- ment of Delhi, and were able to question and confront these offi cials. They repeatedly asked the offi cials how it was that their applications were left unattended for years and even if the applications were rejected, why rejection orders were not made in writing and communicated to the applicants. They demanded to know why petty fi nes were imposed when ration shops were found engaging in serious fraud. They were surprised to hear the answers of the government offi cials when they said that they were unaware of the orders of the Supreme Court in the Right to Food case. They were taken aback to hear the additional commissioner, department of food and supplies and consumer affairs, Government of NCT of Delhi, admitting that there was no procedure laid down for handling grievances. The members of the public attending the hearing suggested that an independent authority − called the public grievance commission − be set up. Many persons complained that it was almost impossible for them to obtain copies of the records of the ration shops and that, even under the Delhi’s Right to Information Act, they were asked exorbitant amounts for xeroxing (photocopying) of the public documents. On November 18, 2004 the Supreme Court called upon the Union of India and the Delhi Govern- ment to reply to IA No. 41 of 2004. The Delhi Government was required to state in its affi davit “as to when the vigilance committees… were set up … and the details of the work undertaken by those committees.” In response to this order, the commissioner, in the offi ce of department of food and supplies and consumer affairs, Government of NCT of Delhi, fi led an affi davit, in January 2005, stating therein that circle vigilance committees were constituted in 69 circles in Delhi “under the chairmanship of the area MLA. The food supply offi cer of the circle is member secretary of these committees” (p.148). It was further stated in the affi davit that the committees had conducted 717 checkings. In the said raids the wheat, rice, kerosene oil and other essential commodities worth Rs. 20,80,000 were seized. Further, major action was taken against 404 fair

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |13 CHAPTER ONE price shops/ kerosene oil depots and in 42 cases FIRs were registered, licences were cancelled and security amount was forfeited” (p.149). In response to the NDTV news of the diversion of the foodgrains, the commissioner agreed that foodgrains, meant for ration shops, was sent to Modi Flour Mills, Okhla, New Delhi and that an FIR was lodged against this fl our mill and that “trial and prosecution, was to be done” (p.158). The commissioner also agreed with all the cases of violation as pointed out during the public hearing and promised the Supreme Court that “appropriate necessary action has been taken against the erring PDS outlets” (p.158). The commissioner also said that the “authorisation of the concerned fair price shops has already been suspended” (p.159). Regarding transparency, he promised that inspection of records, by benefi ciaries, could be done “free of cost” (p.161). A careful perusal of the affi davit of the commissioner revealed that not a single person had been prosecuted and punished. A few prosecutions were pending, it is true, but the modus operandi appeared to be to keep these prosecutions pending for a long time and then allow them to lapse, thus creating an impression that action was being taken. No disciplinary action was taken against a single offi cial of the department. In some cases, licences were suspended and probably later on quietly restored. In very rare cases, licences were cancelled. Even here, activists suspected that licences were subsequently granted in the name of a relative of a ration shop dealer. Illusory fi nes were imposed in some cases. Despite the petition, in the Supreme Court. the unholy nexus, among offi cials and dealers and politicians, continued. On the contrary, the situation became more serious. Since the social activists of Parivartan had exposed the system in the public hearing and IA No. 41 of 2004, the ration shop dealers were angered by the exposure. They conspired with the government offi cials and policemen to try and stop Parivartan from operating. They decided to physically intimidate the Parivartan activists. The ration shop owners were particularly upset because in the slum dwellers − in Sunder Nagri, Seemapuri, Kalyanpuri, RK Puram, Nand Nagri, Harsh Vihar and Welcome Colony − were receiving their entire quota of subsidised grains and ten ration shop owners had their licences either suspended or cancelled pursuant to the complaints made by members of the public after they were told about their rights by the Parivartan activists. There were attempts to manhandle activists even prior to the order of November 18, 2004. On September 23, 2003 two staff members of Parivartan, while assisting illiterate women from slums in the inspection of the records, were attacked by ration shop owners in the offi ce of assistant commissioner, Mr Rajendra Prasad, in Northeast Delhi. Thirty ration shop owners as- sembled outside the offi ce and assaulted the activists in the presence of the assistant commissioner who not only took no action but also refused to call the police. When the activists went to the Nand Nagri Police Station they were surprised to fi nd 250 ration shop owners there and these persons surrounded the police station for over four hours demanding that the Parivartan activists be handed over to them to be burnt alive. Only when the deputy commissioner (revenue) of the Northeast District made a personal intervention, were the activists able to escape in a police vehicle. After this assault, offi cials of the department, together with police persons and ration shop owners, began visiting the homes of the persons who had made applications under the Delhi Right to Information Act, to inspect the records, and during these home visits the applicants were asked to withdraw their applications. Parivartan put this on record by letters to the chief minister and the chief secretary on September 30, 2003.

|14 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

The next attack took place on December 27, 2003 when seven Parivartan activists, who were verifying the records of the ration dealers, were assaulted in the market place at Welcome Colony in Babarpur constituency. The ration dealers records, that were obtained after inspection, were snatched and burnt by the mob. A third attack occurred on October 6, 2004 when a Parivartan activist, who had gone to a kerosene shop to help some women get their entitlements of kerosene, was grabbed hold of by the ration shop keepers outside the shop in Sunder Nagari and was threatened in front of the public that she would be doused with kerosene and set on fi re. The station house offi cer (SHO) Nand Nagari Police Station, Mr Rai Singh, refused to register an FIR and the complaint had to be sent by post. After the Court Order dated November 18, 2004 another assault, on Parivartan activists, occurred on November 27, 2004 at Kalyanpuri, when Parivartan activists went, together with the FSO, to a ration shop to assist an illiterate woman inspect records. The shop owner called a gang of persons in the presence of the FSO, grabbed the Parivartan activist and took out a knife and threatened to kill her. The FSO of circle 38, Mr Anil Kumar, put the activist in his car and took her away. On December 13, 2004, a Parivartan activist, named Santosh, was attacked by two unidentifi ed people in front of the offi ce of the FSO in circle 45 when she was assisting an illiterate woman in getting certain alterations done in her ration card. An assailant cut her hair with his knife. A criminal complaint was made to the SHO, Nand Nagari Police Station but no action was taken. Number of complaints were made thereafter to senior police offi cers but no action was taken. This made the assailants bolder and on December 30, 2004 when Santosh was on her way to the offi ce she was attacked by an unidentifi ed person with a knife and her throat was partially cut and she nearly died. Complaints were made to the police but no action was taken. Parivartan complained to the Supreme Court that “the SHO was uncooperative and disinterested” (p. 7 IA No. 45 of 2004). Parivartan therefore petitioned the Supreme Court, through People’s Union for Civil Liberties (PUCL), by fi ling IA No. 45 of 2004. In the IA, Parivartan complained that instead of taking action against the assailants, the police entertained complaints by MLAs who told him that Parivartan was“an unreliable organisation and that no action should be taken on their complaints” (p. 7). Parivartan, therefore, petitioned the Supreme Court for Enquiry into the incidents and for protection for its members. In the reply to the IA, the deputy commissioner of police, Northeast district, Delhi confi rmed that “the allegations of fair price shop keepers indulging in black marketing the rations are to an extent true and that their corrupt practices are being protected by the concerned department offi cials cannot be ruled out” (p. 44). He also confi rmed that “MLAs of the areas namely Mr Veer Singh Dhingan and Mr Baljor Singh, both from Congress party” (p.46) had met the police to protest against the activities of Parivartan. The reply − by the assistant commissioner, department of food and civil supplies and consumer affairs − indicated that “vigilance committees had been set up under the chairmanship of the MLAs” (48). It was in these circumstances that the petitioner fi led IA No. 55 of 2005 seeking reforms in the PDS and in particular seeking directions for the PDS system to be taken out of the hands of the private dealers and be handed over to elected local bodies, the Gram Panchayats, the urban municipal bodies, women’s self help groups, the large adimjati multipurpose co-operative socie- KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |15 CHAPTER ONE ties (LAMPS) and the primary credit co-operative societies. The petitioner also sought directions for preference and reservation to be given for Tribals, Dalits, persons with disabilities and other disadvantaged sections. Directions were sought to have the commissions and margins revised so that running a PDS shop became profi table. Also asked for were working capital requirements for the running of the shops. Godowns and kerosene depots were asked for at every block and districts. Ration cards were sought for the homeless and those living in slums and migrant labourers. Directions were sought for a more equitable system where applications for ration cards are decided upon expeditiously by government and in a transparent manner. A direction was sought to have ration cards issued in the names of the husband and the wife. A reform of vigilance committees was sought where the benefi ciaries and Right to Food activities could also play a role. A system was sought to be put in place where the police and offi cials, of the department of food and civil supplies and consumer affairs, would institute criminal prosecutions as well as departmental actions against wrong doers. On July 12, 2006 the Court found “that there is practically no monitoring over the sums allotted for the PDS [which] is in the neighbourhood of Rs. 30,000 crores annually.” The Supreme Court, realising the magnitude of the problem, constituted a Central Vigilance Committee (CVC) headed by Mr Justice DP Wadhwa and including Dr NC Saxena, to “look into the maladies which are affecting the proper functioning of the system and also suggest remedial measures.” The Court said that it was giving this “unusual direction in view of the almost accepted fact that large-scale corruption is involved. The ultimate victim is the poor citizen who is deprived of his legitimate entitlement of foodgrains.” Justice DP Wadhwa then submitted the fi rst report of the commissioners to the Court. NC Saxena, the second commissioner, also submitted his report concurring with Justice Wadhwa’s recommendations and adding a different line of reasoning. On January 10, 2008, the Court made an order describing the report as “comprehensive” and containing “detailed analysis.” The Court then recorded that there was “unanimity at the Bar that the report deserves acceptance. There- fore, we direct acceptance of the report.” The Supreme Court then directed the commission to make similar reports for the entire country. In January 2009, the Justice Wadhwa Commission fi led similar reports with respect to the PDS system in several other states of India. Antyodaya Anna Yojana Similarly, the Court directed full compliance with the Antyodaya Anna Yojana (AAY) which required government to identify the poorest of the poor, give them a special ration card and to distribute grain to these benefi ciaries at Rs. 2 a kilogram for wheat and Rs. 3 a kilogram for rice. The governments were required to consider giving grain free to such families in this class of persons who, on account of penury, were unable to pay even this amount for grains. On May 2, 2003, the Supreme Court made a landmark order expanding the list of benefi ciaries for the AAY scheme, which provided for highly subsidised grain for the poorest of the poor. The Court directed government to include six classes of people in the AAY scheme as follows: “We direct the Government of India to place, on AAY category, the following groups of persons: i) Aged, infi rm, disabled, destitute men and women, pregnant and lactating women, destitute women; ii) Widows and other single women with no regular support; iii) Old per- |16 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

sons (aged 60 or above) with no regular support and no assured means of subsistence; iv) Households with a disabled adult and assured means of subsistence; and v) Households where − due to old age, lack of physical or mental fi tness, social customs, need to care for a disabled, or other reasons − no adult member is available to engage in gainful employment outside the house.” Monitoring the scheme, on November 17, 2004, the Supreme Court found many of the governments remiss and directed them “to complete the process of identifi cation of persons” by the end of 2004 and supply foodgrains to them immediately. Mid-day Meal The Supreme Court directed full compliance with the Mid-day Meal scheme (MDMS) and directed that all the governments provide every child − in every government and government assisted primary school − with a prepared Mid-day Meal with a minimum content of 300 calories and 12 grams of protein every day for a minimum of 200 days. The MDMS, prior to this order, had almost ground to halt. Hot cooked meals were being provided in very few states. In most places, dry ration was given and that too infrequently. Dealing with allegations − that very inferior quality grain was being provided for the MDMS and TPDS − the Court directed that the states should ensure “provision of fair average quality grain.” Prior to this order, there were hundreds of instances of inedible, rotten grain being provided to the poor and there were numerous reports of grains being infested with insects. On September 16, 2004 a complaint was made, on behalf of the petitioner to the Court, to the effect that the reports of the commissioner showed that the orders of the Court − regarding the implementation of the MDMS − have not been implemented. A complaint was further made − that the central government proposed to transfer the scheme to the state governments for implementation. The Court made an order restraining the Union of India from transferring the MDMS to the state governments. On November 17, 2004 the Supreme Court once again did a review of the scheme and found that “in many of the states either there is no implementation or it is insignifi cant. The Court noticed that the government had issued a letter dated October 6, 2004 augmenting central assistance by providing Rupee one per child per day for cooking costs and further assistance for transport subsidy. In view of this, the Court extended the deadline for full implementation of the scheme up to January 2005. The central government was directed to “manage, monitor and evaluate” the scheme so that the benefi t “reaches those for whom it is meant.” National Old Age Pension and Annapoorna Scheme The Supreme Court, dealing with the grievance of elderly persons who were destitute, directed full implementation of the National Old Age Pension Scheme (NOAPS) and the Annapoorna Scheme. Persons, above the age of 65 and not having a means of subsistence, were to be paid a pension. Those who did not receive a pension were to receive 10 kgms of free grains per month under the Annapoorna Scheme. In the order of the Supreme Court dated November 18, 2004, the Court dealt with the fi fth report dated August 2004, where it was pointed out that 69 lakh benefi ciaries, requiring an KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |17 CHAPTER ONE annual allocation of 620 crores, needed to be covered. However, instead of implementing the Court Orders the coverage was not only “limited but it is decreasing every year” falling from 54 lakh in 2001-2 to 38 lakh in 2002-3. The Court, looking at the resources set aside by the state, concluded that they were “nowhere near the requirements and are suffi cient to meet just about half the requirements” (110). The Court then noticed that a consensus was reached − between the commissioner and the Planning Commission − to increase allocations not only for pension but also the other social security schemes. The allocations, despite this consensus, were not increased. “Inadequate allocations by the Centre and the states has limited the coverage of this scheme. There is a need for the Government of India to double the allocations…to “ Rs. 250 per pensioner per month at the very least” (111). The Court noted that several states had reported a “massive decline in pensioners.” Pensions were also paid “irregularly” (112). Thus pensions were not distributed every month as directed by the Supreme Court. In the state of Jharkhand, pensioners were “denied their entitlement for a whole year” (112). The Court noted that “it was only after a visit, by Dr Saxena to the state in March 2004, that the Labour Secretary realised the scheme has now become a part of the state plan” (112), albeit with 100 percent central government assistance. “Callousness and indifferences [sic] ” the Court lamented “deprived lakhs of old people social security benefi ts (113). The Court also noticed that “some states were discontinuing schemes covered by the Court orders without providing for any alternatives” (113). Referring to the state of Madhya Pradesh, which had withdrawn Annapoorna free grain benefi ts for old people from January 2003 on the promise that all the benefi ciaries would be given pensions instead, the Court noted that this assurance was not kept and that, in many areas, “no effort has been made to replace Annapoorna” with pensions (113). Referring to its order of April 2004, which directed that no scheme covered by the orders of the court would be “discontinued or restricted in any way without the prior approval of this Court,” (113) the Court held that Annapoorna could be discontinued only if “all individuals previously covered would now so be covered under pensions and this too only after the approval of the Court.” All in all, the Court found that the allocations − for all the national social assistance programmes − were roughly at 50 percent. Though Rs. 1,209 crores per year was needed, the allocation was in the range of 680 crores per year. The Court directed that the pension scheme would not be discontinued or diverted until a fi nal decision was taken by the court. National Maternity Benefit Scheme Turning its attention to the high mortality rate in India − of women and children at child birth − the Court directed the enforcement of the national maternity benefi t scheme (NMBS), which required a payment of Rs. 500 to all BPL pregnant women, prior to child birth for each of the fi rst two births. During the course of the hearing of the case, the government sought to discontinue the NMBS on the excuse that it was being replaced by a new scheme called the Janani Suraksha Yojana (JSY). The petitioner therefore fi led IA No. 54 of 2005 for orders restraining government from discontinuing NMBS and government fi led IA No. 37 of 2005 seeking permission to modify NMBS. On February 1, 2007, the Court, in its order, noticed “that there have been some modifi cation |18 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD in the JSY scheme which does [sic] not appear to have been made known to the benefi ciaries.” Government of India, on account of the opposition of the petitioner to the discontinuing of NMBS, was compelled to hold a series of protracted discussion with the NGOs and with the offi ce of the commissioner and fortunately the parties were able to arrive at a compromise which was presented in Court. On September 20, 2007, the Court turned its attention to the decision of the central government to modify the NMBS and to introduce a new scheme called JSY. The petitioners were opposed to the modifi cation in the NMBS. As stated earlier, NMBS provided for Rs. 500 to be given to every pregnant woman before her delivery so that she may get some extra nutrition and her child is not born malnourished. The JSY was an entirely different scheme providing for incentives for pregnant women to go to the hospitals for delivery rather than have their delivery at home. According to the petitioners, NMBS was a scheme for nutrition for the unborn child whereas JSY dealt with institutional delivery. These schemes operated in entirely separate fi elds and a woman could avail of both. The government, by falsely stating that JSY was an improved version of NMBS, proposed to do away with NMBS on the introduction of JSY. The Court, on a perusal of the data provided by the commissioner on the coverage of eligible benefi ciaries under NMBS, found that the scheme “has virtually not taken off in many states. Delhi has given the benefi t to only 20 women in 2006-7, while in Chandigarh the number of benefi ciaries is zero.” In many states, “less than even 10 percent of the eligible benefi ciaries have been covered.” The Court was also given data of the state-wise percentage of home deliveries, which showed that in many states the vast majority of women chose to deliver their babies at home. This is because of many reasons including the pathetic state of health institutions particularly in the North and the disrespect shown to women in these institutions, the long distances to hospitals and so on. Looking at the data provided the Court noted that many states had not utilised the JSY funds at all. Finally, the Court directed all the respondents to continue with the NMBS and to ensure that all BPL pregnant women get the cash assistance 8-12 weeks prior to the delivery. The amount of Rs. 500 per birth, which was earlier restricted to children and only for women who were adults, was now made “irrespective of number of the children and the age of the woman.” The Court urged the governments to “regularly advertise the revised scheme so that the intended benefi ciaries can become aware of the scheme” and to ensure “that the money earmarked for the scheme is not utilised for any other purpose.” The Court warned that “stringent action” would be taken if there is “any diversion of the funds allocated for the scheme.” National Family Benefit Scheme Finally dealing with families that become destitute on the death of the only bread earner, the Court directed the governments to fully implement the NFBS and to “pay a BPL family Rs. 10,000 within four weeks whenever the primary breadwinner of the family dies.” Transparency and publicity The Court, in an innovative order, also directed that a copy of the order “be translated in regional languages and in English” by governments and be “prominently displayed in all Gram Panchay-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |19 CHAPTER ONE ats, government school buildings and fair price shops.” The Court further directed All India Radio and Doordarshan (the government’s TV service) to publicise the various schemes. This order was passed as a grievance was made to the Court that its orders are rarely transmitted to the public in the rural areas. Similar directions were reiterated, in the order dated November 20, 2007, with respect to the need to advertise the changes in the NMBS and JSY scheme so that the beneﬁ ciaries could know about the changes made. Sampoorna Grameen Rozgar Yojana On May 8, 2002, when the petition came up for hearing once again, Justice Kirpal had become the Chief Justice of India. He directed the Gram Panchayats to frame employment generation proposals in accordance with the Sampoorna Grameen Rozgar Yojana (SGRY), a programme of the central government entitling poverty stricken persons to obtain 100 days of employment in a year on government programmes and, in return, be paid partly in grain and partly in cash. The programme envisaged the “creation of useful community assets that have the potential for generating sustained and gainful employment such as water and soil conservation, afforestation and agro-horticulture, silvipasture, minor irrigation and link roads.” The order further directed the governments to focus on “agricultural wage earners, non-agricultural unskilled wage earners, marginal farmers and, in particular, SC and ST persons whose wage income constitutes a reasonable proportion of their household income and [sic] to be given priority to them in employment, and within this sector shall give priority to women [sic].” Since there were numerous allegations − that governments were employing contractors, instead of doing the work directly and these contractors were siphoning away funds − the Court prohibited the use of contractors in the SGRY programme. Responding to complaints − that wages were not paid for long periods after the work was completed − the Court directed “wage payment on a weekly basis.” Dealing with complaints − that the governments were not releasing the required resources in time − the Court directed the central government to “...make ﬁ nancial releases under the different employment generation schemes to each state on schedule.” In 2004, a grievance was made to the Supreme Court by labourers who had worked on a worksite and who had not been paid wages for several months. The commissioners too had intervened and directed payment of wages, but the administration remained adamant. A joined enquiry was conducted by the commissioners and the administration which showed that − though a resolution was passed by the Gram Sabha on April 14, 2003 for the construction of a dam in Limbi village and though the work commenced in May 2004 and was completed in June 2004 − payment to the workers was not made. On November 17, 2004 the Court directed the state government to release the payment to the Union of the workers − namely, the Jagrat Adivasi Dalit Sanghatan − “to pay the same to the concerned labourers on obtaining receipts from them” (101). The Supreme Court, turning to the demand of the people for food-for-work, referred to the report of the high level committee on long term grain policy and relied on the recommendation that the SGRY Scheme should be doubled. The Supreme Court doubled the allocation of foodgrain and cash for the State of Rajasthan for the drought period May–July 2003. The Court then made orders directing the ration shops to remain open in accordance with the regulation and directed government to cancel the licences of ration shops that failed to provide grain to BPL families at

|20 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD the stipulated rates or shops engage in black-marketing, siphoning away of grains, making false entries in the BPL cards or forcibly keeping BPL cards with them. The Gram Sabhas The Gram Sabhas are the organs of local self-government at the level of the habitation. These are potentially the real institutions of people’s rule. They are recognised as such in the Constitu- tion of India. In order to ensure that the people of India, at the grassroots, have control over the food distribution schemes, the Supreme Court made a rather revolutionary direction as follows: “The Gram Sabhas are entitled to conduct a social audit into all food/employment schemes and to report all instances of misuse of funds to the respective implementing authorities, who shall on receipt of such complaints, investigate and take appropriate action in accordance with law.” The Gram Sabhas were also empowered by the Court orders to monitor the implementation of various schemes and have full access to information regarding the selection of benefi ciaries and the disbursement of benefi ts. As there was widespread corruption, in the selection of persons for the BPL list, the Court directed “transparency in selection of benefi ciaries” and asked the Gram Panchayats, which are the organs of local self-governance at the village level, to “display a list of all benefi ciaries under the various schemes” and to make this list available “to members of the public for inspection.” Once again, in the order dated February 1, 2007, when it was pointed out to the Court that the central and state governments did not have any monitoring system at all, the Court asked the Union of India to “indicate as to whether it would be in the interest of the benefi ciaries if the funds are directly placed at the disposal of the Gram Panchayats so that without unnecessary delay benefi ciaries can get immediate benefi t of the schemes [sic].” Grievance resolution As there did not exist any complaint recording and grievance resolution mechanism, the Court set up such a mechanism in the following manner. The Court directed that any complaint − with respect to the implementation of the schemes − is fi rst to be made to the Zilla Panchayat. the chief executive offi cer/collector is required to record the complaint in a register and acknowledge the receipt of the complaint. Thereafter, the offi cials are required to ensure that the grievance is properly dealt with. The chief secretary, the highest-ranking offi cial in the state, is required to ensure that the Supreme Court orders are fully complied with. The commission The Court, in an order having far reaching implications, ordered that a commission of the Court be established with Dr NC Saxena, former planning secretary Government of India, as its head, for “the purpose of looking into any grievance that may persist after the grievance resolution procedure has been exhausted.” On the commissioner recommending a course of action to ensure compliance with the Supreme Court’s various orders, the governments were required to “forthwith act upon such recommendation and report compliance.” The commissioners were also empowered, by the Supreme Court, to take the assistance of individuals and reliable organisa- KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |21 CHAPTER ONE tions in the country. Offi cials were “directed to fully cooperate with such persons/ organisations, to bring about effective monitoring and implementation of the orders of the Court.” As a result, the commissioner, Dr Saxena, was able to appoint reputed individuals and NGOs throughout the country to function as his assistants and advisors. These persons traveled through the country, collected information, did surveys and research work, conducted public hearings, met with offi cials and attempted to persuade them to carry out certain reforms. In this way, the orders of the Supreme Court permeated the country. What started as a top-heavy initiative slowly became grassroots-based. Since it appears that the role of the commissioner, as originally envisaged, was somewhat limited, the petitioner suggested to the Court that the role be expanded and so, by order dated October 29, 2002, the Supreme Court expanded the role of the commissioners “to include the monitoring of the implementation of this Court’s orders as well as the monitoring and reporting to this Court of the implementation by the respondents of the various welfare measures and schemes.” The Court directed government offi cials to “provide to the commissioners full access to relevant records and provide relevant information.” The appointment of a commissioner, in writ jurisdiction, was made possible because, in 1984, the scope of PILs were expanded to include the appointment of commissioners for the collection of data to support a PIL in circumstances where the petitioner was either too poor or too illiterate to substantiate the petition by presenting data. In Bandhua Mukti Morcha vs Union of India (1984.3.SCC.161) the Supreme Court said: “We have on more occasions thin one said that Public Interest Litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its offi cers to make basic human rights meaningful to the deprived and vulnerable sections of the community. The government and its offi cers must welcome Public Interest Litigation (182). This right to live with human dignity enshrined in Article 21… include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief (183). provision conferring on the Supreme Court power to enforce the Fundamental Rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of Fun- damental Rights. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ ? That is a matter on which the Constitution is silent (187). It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking that every judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails (188). There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can some times lead to injustice, particularly where the parties are

|22 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his diffi culty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court. Therefore, when the poor come before the court, particularly for enforcement of their Fundamental Rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the court (189). Now, it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro ‘bono publico,’ it would be almost impossible for him to gather the relevant material and place it before the court. What is the Supreme Court to do in such a case Would the Supreme Court not be failing in discharge of its constitutional duty of enforcing a Fundamental Right if it refuses to intervene because the petitioner belonging to the underprivileged segment of society or a public spirited citizen espousing his cause is unable to produce the relevant material before the court... If the Supreme Court were to adopt a passive approach and decline to intervene...Fundamental Rights would remain merely a teasing illusion... It is for this reason that the Supreme Court has evolved the practice of appointing commissions for the purpose of gathering facts and data in regard to a complaint of breach of Fundamental Right made on behalf of the weaker sections of the society... The report of the commissioner would furnish prima facie evidence of the facts and data gathered by the commissioner and that is why the Supreme Court is careful to appoint a responsible person as commissioner to make an enquiry or investigation into the facts relating to the complaint. It is interesting to note that in the past the Supreme Court has appointed sometimes a district magistrate, sometimes a district judge, sometimes a professor of law, sometimes a journalist, sometimes an offi cer of the court and sometimes an advocate practising in the court, for the purpose of carrying out an investigation and making report to the court because the commissioner appointed by the Court must be a responsible person who enjoys the confi dence of the court (190).” In the early stages of the case, the petitioner and the legal team relied upon the inputs of the individuals. All of this changed after the appointment of Dr Saxena as the commissioner. The collection of data and the presentation of evidence became more thorough and professional. Dr Saxena was not only a distinguished civil servant but also an erudite and patient teacher and a great leader. He coached the legal team for years until they attained a fair understanding of the principles and the factual matrix. Slowly the commissioner’s offi ce became the backbone of the Right to Food case. Eight extensive reports, in several supplementary reports, were fi led in the Supreme Court and became the factual basis of the petition. So reliable were the reports, that government counsels could rarely contest any of the fi gures presented to the Court. They became the last word and established factual pre-eminence, a factor very important in PIL and crucial for the success of a case. Prominent among the commissioners were Harsh Mander, a former civil servant and a prolifi c writer on matters relating to hunger. He was one of the most distinguished members of Dr Saxena’s illustrious team. The Delhi offi ce also included Biraj Patnaik, a rising star with an impressive command over facts and fi gures and Dipa Sinha and others without KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |23 CHAPTER ONE whom the case would have never progressed. The state commissioners and advisers are too numerous to mention individually but they perform an incredible role in their states, collecting information, doing public hearings, visiting crisis areas and meeting with government offi cials in a never-ending attempt to get the government to see their point of view and take immediate action. The chart of the advisors/assistants to the commissioners is available at the website of the Human Rights Law Network at www.hrln.org (go to ‘issues’ and then see ‘Right to Food’). The advisors, to the commissioner, made several interventions in the Supreme Court on behalf of the people from their states. The advisor from West Bengal, Anuradha Talwar and the convener of the Right to Food and Work West Bengal Network, Sukumar Gaine, made an application to the Court highlighting the conditions of the workers in the tea plantations in Jalpaigudi district. The Court commented that the report “reveals an alarming state of affairs” and called upon the state of West Bengal to respond and take action “having regard to the various incidents of malnutrition highlighted in the report.” Accountability By order dated October 29, 2002, the Court specifi cally held the highest ranking offi cers of the states and the Union Territories responsible for failure to implement the orders of the Court thus: “In case of persistent default in compliance with the orders of this Court concerned chief secretaries/administrators of the states/Union Territories shall be held responsible.“ The Court further held that “If the commissioner reports and it is established to the satisfaction of the Court that starvation death has taken place, the Court may be justifi ed in presuming that its orders have not been implemented and the chief secretaries/administrators of the states /Union Territories may be held responsible for the same.” In the same order, the Court directed each state government and Union Territory to appoint a set of government offi cials as assistants to the commissioner to “render such assistance to the commissioners as the commissioners may require and help them in discharging the responsibility which has been cast upon them.” The respondents were also directed to appoint a nodal offi cer. The Right to Food Campaign It is necessary to make a slight digression at this stage to make a point about the inter- relation- ship between the legal initiative and social movements. It is true that the legal initiative started without any general consultation with the Right to Food and the food sovereignty groups in the country. It would have been much better had such a consultation taken place. But it is part of the history of litigation that it began without much hope and in a situation where many of the NGOs and struggle organisations had no faith at all, and rightly so, in the legal system. That the case took off is one of the ironies of the situation and a happy one at that. It is also important, at this stage, to acknowledge the role of the media − both print and television − in the success of the Right to Food case. In the weeks, prior to the petition being fi led, the newspapers and the television channels were full of reports of deaths by starvation. There were graphic images carried of Tribal families who had died eating mango kernels, grass and other toxic and inedible plants, roots and seeds. There were also interviews done with ministers who, when questioned about such deaths, remarked that it was customary for the poor in India to eat

|24 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD such substances. There was public indignation in the air when the case was fi led and after the case was admitted. The media continued to cover the proceedings on a day-to-day basis. It was this huge generation of positive public opinion that contributed, in the early stages of the case, to its success. Thus, even in the absence of a Right to Food movement as such, a combination of active media coverage and a fortunate placement of the stars contributed to the early success. The moment the orders began to come in, it struck social activists that something unusual was afoot. The Supreme Court, in the era of globalisation (1995 onwards), was not particularly friendly to PILs. The revolutionary strides, made by the Court in public interest law jurisdiction during the 1980s and early 1990s, was, by 2001, in steady reverse gear. Social activists were already disillusioned by court decisions on important public matters. The orders of the Court in this case took them, and the advocates in the case as well quite by surprise. As order after order was made, it became quite clear that something most unusual and positive was taking place. The developments may have had something to do with the judges presiding over the case. It started with Justice BN Kirpal, who was a rather determined judge and who would take things forcibly to its logical conclusion come what may. He would use this strength to make several orders which operated against the poor and working people, but that is another story. Here he was determined to bring about change. When he retired, the case was heard by chief Justice YK Sabharwal, who was, compassionate and concerned. He was an equally perspicuous, forceful judge, and determined and he took the case forward. When he retired, the case landed before a Bench − of Justice Dr Arijit Pasayat and Justice SH Kapadia − who also took the case forward with considerable enthusiasm. Thus, the petitioner was fortunate to have a series of justices who were determined to take the case to its logical conclusion. As the fi rst few orders came in, there was a noticeable revival in the Right to Food Campaign, almost as if it had received a shot in the arm. The groups, that had put in enormous work over decades, immediately became involved in the legal proceedings. Women’s organisations, Tribal groups, NGOs of all types, child right organisations, health right NGOs, economists, nutritionists, academics, lawyers and journalists got involved. It was magnif- icent to see the spread and depth of the movement. These organisations and individuals became the backbone of the case. They collected information, conducted surveys, did public hearings and submitted data and information, which was, in turn, handed over to the Court. They guided the petitioner and the advocates as to the issues to be taken up and the demands to be made. They decided strategy and tactics. They monitored the court orders and immediately reported instances of non-compliance. They wrote articles in the newspapers and they held numerous meetings where governments came in for trenchant criticism. It is this campaign that is responsible for the success of the case. Members of the campaign, all of them brilliant and committed, are too numerous to be mentioned individually. They were the bedrock on which the case stood and they will endure even after the case is over. The chart is available at the website of the Human Rights Law Network as mentioned already. Some failures Sadly however, the movement was not able to go beyond this phase to a more political one, transiting from the Right to Food to food sovereignty. It was unable to integrate with the already KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |25 CHAPTER ONE existing Tribal movements struggling against displacements and arguing for the rights of Tribals to continue to reside in and take advantage of forest areas, notwithstanding the absence of title to land. It could not merge with existing farmers’ movements at a critical period where land reforms, from a capitalist point of view, were taking place and farming was deliberately made un- remunerative and farmers were being pushed off the land by the World Bank suggested reforms. Similarly, the movement was unable to deal with the issue of genetically modifi ed foods due to political differences within its ranks, as a result of which the farmers’ movement against GM foods and the Right to Food Movement remained separate. True, the legal strategy was to peg the pleadings and the reliefs, sought in the writ petition on the various programmes of the governments, to obtain court orders for their implementation, thereby converting a mere programme, that could be rescinded at will, into a legal entitlement which could not be changed without governments going back to the court to obtain a modifi cation. But the intention of the RTF campaign, right from the beginning, was never to be limited by schemes or by a legal strategy alone. The case was supposed to be only a starting point. Thereafter, the campaign intended to broaden out into all areas of discrimination and injustice regarding food. What this meant was that the campaign ought to have been concerned with displacement from land and retrogressive amendments in the Land Acquisition Act, so-called land reforms such as contract farming, the use of pesticides and chemicals and its alternative in organic farming, the minimum support price and the need to give small and medium farmers particularly a viable price for their products, the diversion of agricultural land into non-agricultural use, the agreement on agriculture and the demand of the movements that the WTO should get out of agriculture, the spread of genetically modifi ed food through companies such as Monsanto, the privatisation of water, the displacement of Tribals from their lands and the extensive growth of mining with its disastrous consequences for the environment. But this transition − from a case based on schemes to a political movement aimed at combating the shift in the balance of power regarding land and resources − between capital and labour never took place. The social movements in India are probably more extensive than any other country but it suffers from major defect. These movements are unable to come together, despite their overall similarity in perspective and orientation, to form a political opposition to the state. The political activity is restricted to two national political parties and several regional parties, all of whom have virtually the same agenda. They are all capitalistic and to such an extreme that even social democracy appears unpalatable to them. They are all in favour of globalisation understanding fully well the resulting pauperisation of the working people. Thus the working class has no one to vote for, as there is not even a small political party representing the working people. Having said this, there is also a subterranean movement for a new political expression and though this manifests itself in many ways, it is at a very early stage. The RTF campaign could possibly have converted itself into a political movement for food sovereignty, especially since hunger and malnutrition continued to exacerbate during the entire period of the case in the Su- preme Court. Sadly, this was not to be. Direct political mobilisation, against the authorities, did not take off in most areas. The massive spread of the Right to Food Campaign in all the states was not converted into co-ordinated action. The discontent, frustration, misery and unhappiness at the grassroots remained untapped.

|26 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

The Poverty Line Returning to the case, a huge difference of opinion emerged − between the Right to Food Move- ment and the Government of India − on a policy matter relating to hunger. The criteria − used by the Government of India for determining whether a family does or does not fall below the poverty line − was arbitrary and most unsatisfactory. Many studies revealed that about half of all persons −who are genuinely poor − are not listed in the government data on BPL families and are either left out completely or shown as above the poverty line (APL). These reports also show that a large number of persons, who are rather affl uent, are able to infl uence offi cials and have their names entered in the BPL list even though they own large areas of agricultural land and have tractors and so on and so forth. The whole issue −of identifi cation of BPL families − is therefore mired in corruption and controversy. This was brought to the attention of the Court and the Court directed the governments “to frame clear guidelines for proper identifi cation of BPL families.” The poverty line debate was a complicated one. According to the Government of India, the number of poor persons in India was approximately 37 percent. On the basis of the National Sample Survey Organisation, the Planning Commission declared the offi cial poverty estimate for 1999- 2000 at 27 percent of the population. Kavita Srivastava, of the PUCL Rajasthan, was alarmed when she learned that, as a result of a pro-rata reduction for her state, the number of persons, entitled to be on the BPL list, had been cut from 20.7 lakh rural households to 11.89 lakhs. At that time, government was conducting a BPL survey in the villages of Rajasthan and it was noted that the methodology and procedure was so faulty that about 30 per cent of all poor families would be omitted from the BPL list. Social activists in Rajasthan countered this survey by doing an alternative study in the Sehar Gram Panchayat of Barmer district and the study found that many persons, who were above the poverty line, were shown in the BPL lists while the poor were excluded. Tens of thousands of Scheduled Caste and Scheduled Tribe families were excluded. A careful study of the survey methodology and procedure found several astonishing defects. The average monthly income of the household was not taken as a scoring point. A tenant, on a plot of land, was treated on par with the actual owner of the land. Drinking water facility, which ought to be taken as an indicator of the poverty, was not a scoring point. That the family was Scheduled Caste or Scheduled Tribe did not matter. Points were granted in a most erratic fashion. For example, they were granted on the basis of the number of pieces of clothing the family had without reference to the quality of the clothing. A few articles of clothing, albeit in miserable condition, could rank at par with ownership of acres of land. Two points were awarded if a family had only one square meal a day which is half of the daily nutritional requirement and the same number of points were awarded to a family having more than two acres of irrigated land. Sanitation was a misleading criterion. Defecation in the open was seen as negative and having a toilet inside the house was seen as positive; not realising that in many parts of the state open defecation is a practice even for the rich. Moreover, the government made houses for the poorest of the poor under the Indira Awas Yojana with the toilet inside which automatically excluded them from the BPL list. The ownership of consumer durables such as a vehicle or a tractor or a colour television should have led to automatic exclusion but this was not so. As a result a family, with a tractor and two pieces of clothing, would rank at par with the landless labourer having several pieces of tattered clothing. Disentitling the poor from BPL status − on account of the possession of a

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |27 CHAPTER ONE small radio which they could purchase for Rs. 50 or for possessing a pressure cooker which some NGO had distributed free − was yet another example of how brain dead the entire survey was. Bonded labourers ought to have been automatically included but this was not so. Similarly, child labour families ought to have been automatically put on the BPL list. Instead, indebtedness was made a major factor but it was unreliable because rich families are often highly indebted to the banks. Migrant, casual and seasonal workers ought to have been straight away put on the BPL list. Moreover, the surveys were conducted in the usual way from up downwards by the teacher or the Patwari (the revenue ofﬁ cial) both of whom are susceptible to village level pressures particularly from the rich. The debate − on the poverty line − was fractured. The Economic and Political Weekly came out with a special issue on the poverty line which was a report of a conference funded by the World Bank and in which all the contributors agreed that poverty in India had declined from 37 percent and the only difference, among the economists, was the extent of the decline. Some of the economists, at the center of the Right to Food movement, also, unfortunately, joined in the contribution. Having garnered such intellectual ammunition − on the proposition that globalisation, privatisation and structural adjustment had actually succeeded in India and had resulted in an absolute decline in the numbers of the poor − government moved the Supreme Court to obtain sanctions for a drastic reduction in its food and nutritional programmes. The battle lines were thus drawn. It may be relevant, at this point, to note that the poverty line was set in 1979 by the Planning Commission in two ways. The commission set a money standard and also set a food intake standard of 2,400 k calories per person per day. When the Planning Commission updated the money standard in the year 2000, it set the poverty line at approximately Rs. 15 per person per day and it is this obnoxious standard that carried right through the period of globalisation and of “rising India” and “shining India.” Rs. 15 would barely buy a bottle of mineral water let alone food, education, housing, clothing and transportation. This is what an average employee, at Delhi, would spend at a bare minimum for bus fare from home to ofﬁ ce and back. It was much later that an economist from JNU, Prof Utsa Patnaik, came out with her book The Republic of Hunger (Three Essays Collective, March 2007) and other economists also wrote on the issue at the same time, making a scathing criticism of those neo-liberals who were so brash as to suggest that poverty was on the decline in India. Prof Patnaik concluded that during the years − 1998 to 2003− per capita foodgrains absorption had fallen sharply to levels “not been seen for the last half century” (115). Between 1990 and 2007 the annual absorption of foodgrains per head came down “from 177 kg to 155 kg… levels last seen in the initial years of World War II” (115). She concluded that large sections of rural India “have been already reduced to the nutritional status of Sub-Saharan Africa” (122). Inspecting National Sample Survey (NSS) data on calorie intake corresponding to food consumed, she concluded that by the year 2000, 70 percent “of the rural population was below the norm of 2004 calories per day,” meaning that “seven–tenths of the rural population was in poverty in 1999-2000.” How then did the government arrive at a calculation of poverty at 36 percent of the population instead of 70 percent? This was done on the basis of a calculation made by the Planning Com- mission regarding population in terms of per capita income which table is set out below: |28 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

Table 1: State-Specific Poverty Lines in 1999-2000 (Rs. per capita per month) S.No. State Rural Urban

1. Andhra Pradesh 262.94 457.40 2. Assam 365.43 343.99 3. Bihar 333.07 379.78 4. Gujarat 318.94 474.41 5. Haryana 362.81 420.20 6. Himachal Pradesh 367.45 420.20 7. Karnataka 309.59 511.44 8. Kerala 374.79 477.06 9. Madhya Pradesh 311.34 481.65 10. Maharashtra 318.63 539.71 11. Orissa 323.92 473.12 12. Punjab 362.68 388.15 13. Rajasthan 344.03 465.92 14. Tamil Nadu 307.64 475.60 15. Uttar Pradesh 336.88 416.29 16. West Bengal 350.17 409.22 17. Delhi 362.68 505.45 All India# 327.56 454.11

Even a casual look at the table will reveal how ridiculous the poverty line estimates are. Going from Rs. 12 in the rural areas to Rs. 17 at Delhi this amount was not even enough to buy a bottle of mineral water. Keep in mind that the poverty line income covers expenditures such as food, clothing, housing, education, travel, medical expenses and all other incidental expenses that are required to keep body and soul together. Yet the Planning Commission refused to recognise that the poverty level estimates were obsolete and utterly meaningless. The Commission chose to ignore hunger in the country and the revision of the poverty line because that would require them to accept that − during the period of globalisation, privatisation and structural adjustment −

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |29 CHAPTER ONE poverty had deepened and had became more widespread in India so as to cover 70 percent of the population. They deliberately kept the poverty statistics low by artifi cially depressing the poverty line and thus misled the entire world into believing that globalisation was working in India. In the Right to Food case, we were forced to look at this issue as the government claimed that the poverty line had declined from 36 percent to 26 percent or thereabouts and accordingly propose to remove millions of people from the poverty list. This would have resulted in a huge tragedy for the poor. The Government of India was so depraved that, while hunger was increasing, it sought to curtail the Public Distribution System. What they didn’t bargain for was the Supreme Court intervention and the order made on May 6, 2003 directing that “the Government of India will not insist that state governments remove any person from the existing Below Poverty Line (BPL) list” (59). This order basically put a spanner in the works so to speak and the government was faced with a dilemma of either entering into a dialogue with the petitioner and the Right to Food Campaign or is prepared for a clash in the Court with an uncertain outcome and a lot of bad publicity. Mercifully, the government chose the fi rst option and there were a series of sometimes heated meetings with the government offi cials on the curtailment of the BPL list. Eventually, the government agreed to maintain status quo and the consent terms were fi led in court and they read as follows: “Foodgrain allocations by the central government to benefi ciaries under TPDS will be continued to be made at the present to States on the basis of Planning Commission estimates of 1993-94 poverty rations, which is at 36 percent applied to the population projections of the Registrar General of India as on 1.3.2000 or on the basis of families identifi ed and issued ration cards by the state government whichever is less.” Getting back to the case, on hearing that Government of India planned to remove 50 million people from the BPL list and the state of Rajasthan proposed to remove over one million people from the list in view of their stand that poverty had reduced in India, counsel moved the Supreme Court and urgently mentioned the matter for urgent orders on May 5, 2003 and the Supreme Court, directed the Government of India and the state governments, not to insist on removing any person from the BPL list until further orders. Article 21 – The Right to Life – includes the Right to Food On May 2, 2003, the Supreme Court made another major order when it found the approach of the government to the case “distressing.” Holding that the Right to Food would be an integral part of Article 21 of the Constitution – the Right to Life – the Supreme Court held as follows: “Article 21 of the Constitution of India protects for every citizen a right to live with human dignity. Would the very existence of life of those families are Below Poverty Line not come under danger for want of appropriate schemes and implementation thereof, to provide requisite aid to such families? Reference can also be made to Article 47 which inter alia provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.” Monitoring by the Supreme Court Turning then to the implementation of the previous orders of the Court, the Supreme Court ob- |30 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD served: “we are, told that despite the fact that one and half years have passed, some of the states have not even made a beginning.” The Court issued specifi ed directions for compliance and gave specifi c deadlines. This approach − of keeping a petition pending in Court and requiring affi davits to be fi led showing compliance with the Court − is another unique Indian innovation. It became necessary to introduce this approach since disobedience of court orders is quite frequent and it is impossible for a litigant, or even a public interest litigant, to once again go back to court for enforcement. This shortcut was explained by the Supreme Court in Union of India vs Sushil Kumar Modi [(1997).4.SCC.770)] where the Supreme Court held as under: “It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of the statutory duty by the CBI, and the other government agencies in accordance with law for the proper implementation of the rule of law…The duty of the Court in such proceedings is, therefore, to ensure that the CBI, and other government agencies do their duty and do so strictly in conformity with law…The nature of these proceedings may be described as that of ‘continuing mandamus’ to require performance of its duty (774).” On April 20, 2004, the Supreme Court was once again “anguished” by the lackadaisical approach shown by the respondents. Recalling that the Court had on October 29, 2002 made it “clear that in case of persistent default in compliance of the orders of this Court, the concerned chief secretaries/administrators of the states/Union Territories shall be held responsible.” Nevertheless, “some of the states had not even made a beginning. In the order dated May 2, 2003, “this Court observed the manner in which the directions been fl outed in some states.” Overall the Court found that “there are other states and Union Territories as well in respect whereof the aforesaid reports of the commissioners have commented upon. Some of the states/Union Territories not have [sic] made even a beginning despite lapse of so many years, some have only made a partial beginning; some have made a token beginning and only few of the states have fully implemented the order in respect of cooked Mid-day Meals that was passed on November 28, 2001.” Read- ing the compliance reports regarding the MDMS, the Court were shown a newspaper clipping of a speech made by the Prime Minister promising to extent the MDMS upto the tenth standard during his address to the nation on August 15, 2003. The government responded by saying that ”once the Mid-day Meal scheme at primary level is consolidated, the question of extension of the scheme upto tenth standard can be taken up in a phased manner.” The Court then made a series of directions restraining the respondents from collecting any money from the children or their parents for the Mid-day Meal. Preference was to be given to Dalits, Scheduled Castes and Scheduled Tribes in the appointment of cooks and helpers. The government was to provide for kitchen sheds and the conversion costs of turning foodgrains into cooked Mid-day Meals. The Mid-day Meal, in drought affected areas, was to be supplied even during the summer vacation. The Government of India was to inform the Court, on affi davit, as to when it would be possible to extend the Mid-day Meal scheme upto the tenth Standard in compliance with the announcement made by the Prime Minister. The doubling of foodgrains and cash in the SGRY programme ordered on May 2, 2003 was continued. Workers were to be paid the minimum wages. The labour displacement machinery was to be discontinued. The public was granted access to all documents including muster rolls in the employment programmes at nominal costs. The grant of AAY cards, KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |31 CHAPTER ONE to primitive tribes, were ordered to be accelerated. These directions were given as numerous complaints were received of the state governments collecting money from students and their parents for the Mid-day Meal. The globalisation, in the developing world, is so brutal that while the rich become richer and the state is proud to declare a ten percent increase in GDP every year, the state fi ghts tooth and nail to avoid paying rupees two per child for a meal. The directions, relating to cooks and helpers, were made because it was pointed out to the Supreme Court that Scheduled Castes and Scheduled Tribes persons were not being employed as cooks and helpers and that the dominant castes in the villages were refusing to allow their children to eat the food prepared by them. The direction − relating to supply of meals during the summer vacation − was made because the Court was shown documents indicating that the children had nothing to eat when the school closed for the summer vacation. The order − regarding the minimum wages − was made because complaints were received from the Right to Food Campaign members of non-payment of minimum wages and of the employment of contractors who were siphoning away the resources. The direction − regarding transparency − was made as the public was refused inspection of documents and over charged huge amounts for photocopying. The order dated April 27, 2004 was made because a complaint was made to the Court that, while the petition was being heard, the government proposed to discontinue some of the programmes that were turned into entitlements by the orders of the Court without informing the Court that the government had proposed to do so. After recording that “various schemes for the poorer sections have been the subject matter of the orders passed by this Court from time to time” the Supreme Court observed, “it seems that some states have discontinued some of the schemes.” The Court, therefore, directed that “till the matter is fully heard no scheme covered by the orders made by this Court… shall be discontinued or restricted in any way without the prior approval of this Court. In other words, it means that till further orders, the schemes would continue to operate and benefi t all those who are covered by the schemes.” On September 16, 2004 documents were submitted to the Supreme Court setting out the details of hunger related deaths among primitive tribes in Baran district of Rajasthan. In August 2004 itself, 26 persons, most of them children, had died of hunger. The central government directed the state of Rajasthan to explain “the cause of death of so many children within a span of few days in one particular district of the State.” Integrated Child Development Services Dealing with malnutrition among pregnant women, lactating mothers and adolescent girls, the Supreme Court ordered the full implementation of the Integrated Child Development Services (ICDS). This required supplementary nutrition which was defi ned as “300 calories and 10 grams of protein” to be given to each child in the age group 0 – 6 years. Additionally, each adolescent girl was to get “500 calories and 25 grams of protein.” Each pregnant woman and nursing mother was to get “500 calories and 25 grams of protein.” Every malnourished child was to get “600 calories and 20 grams of protein.” This order was to have enormous repercussions for the government. By order dated April 27, 2004, the Supreme Court responded to a complaint made by the petitioner − that the original order, dated November 28, 2001, was not being implemented at all.

|32 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

After hearing the parties and perusing the documents fi led by the petitioner, including the commissioner’s reports on ICDS, the Court said: “It seems that most of those who are covered by the said order are not getting benefi ts under the said scheme… it seems evident that there is a large number of malnourished children between the age group of 0 – 6 years. These fi gures are based on the survey conducted under the National Family Benefi t Scheme. The position is quite alarming. These young children are the future of the nation. Further, it appears that except Kerala and Tamil Nadu where the benefi t under the scheme is said to be reaching to about 50 percent of the children, in the rest of the country the average seems to be below 25 percent. The position in the states of Bihar, Uttar Pradesh, Jharkhand and Uttaranchal seems to be quite alarming. According to the survey, for the period 2002-2003, the access to supplementary nutrition for the children in Bihar reaches to about 12.6 percent of those who are otherwise covered by the scheme.” On the next date of hearing, a complaint was made to the Court that though the ICDS is supposed to cover about 14 lakh hamlets, the performance was dismal and the coverage was only six lakh. The Court made an order dated April 29, 2004 as under: “It is evident that the ICDS is perhaps the largest of all the food supplementation programmes in the world… It was initiated in 1975 with the following objectives… (i) to improve the health and nutrition status of children 0 – 6 years… (ii) to provide conditions necessary for pre-school children psychological and social development… (iii) to provide pregnant and lactating women with food supplements… and (iv) to enhance the mother’s ability to provide proper child care through health and nutrition education… It appears that a lot more deserves to be done to ensure that nutritious food reaches to those who are undernourished or malnourished… The food is supplied to children through Aanganwadi centres (AWC). In all, there are six lakh centres. The norms of the Government of India provide for one centre for the population of 1000 (700 in case of Tribal areas). According to the petitioner, going by the said norms there should be 14 lakh AWCs… We direct the Government of India to fi le within three months, an affi davit stating the period within which it proposes to increase the number of AWCs so as to cover the 14 lakh habitations. We notice that the norm for supply of nutritious food worth rupee one for every child was fi xed in the year 1991. The Government of India should consider the revision of norm of rupee one. Following up with its investigation into the functioning of the ICDS, the Supreme Court made an elaborate order on October 7, 2004 which is as follows: “It is not in serious dispute … that there should be approximately AWCs. Admittedly, nearly six lakh centres have been sanctioned. Many of the sanctioned centres are also not operational… The problem seems to be more acute in states like Bihar, Uttar Pradesh and Jharkhand. It deserves to be noticed that the directions… were issued as far back as 28.11.2001. The order dated 27.4.2004 notices that most of those covered by the order dated 28.11.2001 are not getting the benefi ts under ICDS… The result was that a large number of children between the age group of 0 – 6 years were malnourished. That order also noticed that the position was alarming… We are shocked at the attitude of the central government which is in respect of giving nutritious food to all children… The fi fth report

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |33 CHAPTER ONE

(of the commissioner’s) presents a gloomy picture... Instances have been given where for months supplies were not made to the children... In the State of Jharkhand, the sanctioned AWCs were not working from May to December, 2003. No satisfactory reply is forthcoming from that state... According to the report, on an average, 42 paise as against the norm of rupee one was being allocated per benefi ciary per day by the state of Jharkhand. The position in Bihar and Uttar Pradesh is also no better... The report also mentions that some AWCs are operating from private houses including those of grain dealers which... is not a healthy way of working as it is likely to increase the chances of pilferage of grain. We are happy to note that... The State of Uttar Pradesh has made efforts to shift AWCs to private schools. It is a good example for other states to follow... The problem of using contractors for procurement has also been mentioned in the report suggesting that it should be done... at the government level. We issue the following directions: “Efforts shall be made that all SC/ST hamlets/ habitations in the country have Angan- wadi centres as early as possible… contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self help groups and Mahila Mandals for buying of grains and preparation of meals…all governments…shall put on their website full data for the ICDS including where AWCs are operational, the number of benefi ciaries category-wise the funds allocated and used…BPL shall not be used as an eligibility criteria for ICDS…all sanctioned projects shall be operationalised …utensils shall be provided…vacancies shall be fi lled forthwith…the entire state and central allocations shall be utilised. Under no circumstances (should it) be diverted or returned to the Centre and, if returned, a detailed explanation for non-utilisation shall be fi led in this Court…earnest effort to cover the slums under ICDS shall be made… all amounts allocated shall be sanctioned in time so that there is no disruption whatsoever in the feeding of children (88-96).” On December 13, 2006, and immediately thereafter, the Supreme Court made a series of stunning orders on the ICDS. Referring to the Millennium Development Goals (MDGs) and specifi cally to the nutrition MDG, the Court noticed that the prevalence of underweight children under fi ve years of age and the proportion of population below a minimum level of dietary energy consumption was to be halved between 1990 and 2015. The Court then concluded that “it seems unlikely” that these goals would be met. A rapid up-scaling of health, nutrition, education and infrastructure, interventions is needed if the MDG is to be met.” Referring to the sixth commissioners’ report dated November 21, 2005, the Court noted that “as many as 1201 lakhs or 70 percent of the children entitled to the ICDS are currently left out of its net.” The Court, turning its attention to adolescent girls, found that out of 844 lakhs according to the Census of 2001, only a mere 2.4 lakh or 0.3 percent adolescent girls had been covered. Many states such as Bihar, Goa, Jharkhand and Orissa “have pointedly stated that adolescent girls are not being covered under the ICDS.” “Thus,” the Court concluded “an entire section of benefi ciaries remain completely ignored in the implementation of the scheme.” Similarly, pregnant women and nursing mothers constitute about four percent of the total population and of this section, less than 20 percent were covered i.e., there were only 81.05 lakh benefi ciaries. The Court referred to its earlier orders − dated November 28, 2001, April 29, 2004 and October |34 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

7, 2004 − where the Supreme Court had expressed its concern “that very little progress had been made towards the implementation of these orders.” Though these orders required “universalisation” of ICDS by operating 14 lakh AWCs, the Court noted that “the data available indicates till now only 9,52,764 centres have been sanctioned…out of which 1.88 lakh centres have not yet become operational.” The Court concluded − taking into account the norms which require a full-fl edged Aanganwadi for a population of 300 -1000 persons (300 – 700 persons in Tribal and Dalit areas) and a Mini Aanganwadi for less than 300 persons − that all the required Aangan- wadis ought to be made operational as quickly as possible. Then the Court recorded the revised rates for the benefi ciaries at rupees two per child per day for food; Rs. 2.70 per day for severely malnourished children; and Rs. 2.30 per day for pregnant women, nursing mothers and adolescent girls. It is perhaps necessary to pause at this stage to let these fi gures sink in. A country − which prides itself as being an Asian Tiger with one of the highest growth rates in the world − is wiling to allocate only 1/20th of a dollar per day for a severely malnourished child. This is the reality of a modern day, globalised, capitalist India! Even at these low rates, the commissioner’s report found the allocations “low, and the utilisation of allocated funds has also been poor.” During 2005-6 the utilisation was only 57.7 percent of the releases made by the Government of India. “Huge amounts of money is [sic] being left unspent and rightful benefi ciaries are being denied.” The Court then found that there was a 60 percent shortfall in the supplementary nutrition programme (SNP) in the allocations made by the Centre. All in all, there emerged quite a miserable picture with many states providing less than 60 percent of the services. Assam provided only 13.5 percent and Manipur zero percent services. Most states had utilisation levels less than 60 percent of the allocations. These states included Assam, Madhya Pradesh, Bihar, Haryana, West Bengal and Punjab. It is interesting to note that the State of West Bengal, which is governed by the Communist Party of India-Marxist (CPM), generally performed much worse than the other capitalist state governments! The ideology of Communism − which is oriented towards the working people − has clearly not permeated in this state despite the “Communist” government and the poor are treated probably worse than other capitalist states. The Court then made a series of stunning directions to the Government of India and to all the states and Union Territories. The fi rst direction to the respondents was to “operationalise a minimum of 14 lakh AWCs in a phased and even manner starting forthwith and ending December 2008.” The second direction to Government of India was to “ensure that population norms for opening of AWCs was not revised upwards under any circumstances.” This direction was given because Government of India stated its intention of diluting the norms so as to make an AWC service a large population. The third direction created a new entitlement for rural communities and slum dwellers called the “Aanganwadi on demand” where an Aanganwadi would be set up where there were at least 40 children under six, within three months of the demand being made. All the benefi ts of the ICDS system − including supplementary nutrition, growth monitoring, nutrition, health education, immunisation, referral and pre-school education − were to be made available to all children under the age of six, all pregnant women and lactating mothers and all adolescent girls. In accordance with the norms, it was directed that Rs. two per child per day would be allocated and spent for supplementary nutrition with the central government contribut-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |35 CHAPTER ONE ing rupee one per child per day. A similar direction − for severely malnourished children at Rs. 2.70 and Rs. 1.35 per child per day respectively − was made. Likewise, Rs. 2.30 and Rs. 1.15 for pregnant women, nursing mothers and adolescent girls. The Court directed the personal appearance of the chief secretaries of the defaulting states to explain why the Court orders were not being obeyed. Affi davits of the respondents, showing compliance with the Court orders, was also directed. On July 9, 2007, when it was shown to the Court that the progress was very poor, the Court directed that “the back log has to be cleared immediately.” The Court further “made clear that if there is any non-observance of the time period fi xed, it would be seriously viewed.” On July 25, 2007, once again a complaint was made that the governments had been most lax. After hearing the parties, the Court said that the pace of implementation was “a said refl ection on the sincerity and seriousness of various state governments…it is shocking to note that… the percentage of functional centres is very low.” Then, taking note of lapses, the Supreme Court issued notices of contempt to the chief secretaries of several states directing them to explain, on affi davits, the reason for non-compliance and to show cause as to why “exemplary action” should not be taken against them. The chief secretaries were to indicate, in the affi davits, “the names of the other offi cers who are responsible for not complying with the Court’s orders.” Be- cause of this very stern action taken by the Court, on August 30, 2007 when the case was heard again, many of the states had complied substantially with the orders so that no further action was deemed necessary. On April 22, 2009, an affi davit dated March 2, 2009 was presented in the Supreme Court on behalf of the ministry of women and child development agreeing to increase the allocations under the ICDS Scheme. It must be said − to the credit of the United Progressive Alliance (UPA) Government at the Centre − that this increase was a somewhat welcome break from the pitiable amounts allocated in the past. It was acknowledged, in the affi davit, that the norms fi xed in 1975 “were not adequately meeting the gap between the recommended dietary allowance (RDA) and average dietary intake (ADI) which meant that the desired impact in the incidents of malnutrition was not taking place.” There was, however, a catch in the affi davit in that the ministry attempted to bring in contractors by the back door once again. It was craftily drafted. Attempting to separate take home rations (THR) from the other inputs of supplementary nutrition where contractors were specifi cally banned, the affi davit attempted to open the doors for contractors for THR and other “snacks.” The affi davit stated that “THR could be given in the form of micronutrient fortifi ed food and/ or energy-dense food…state governments/Union Territories may arrange to provide a morning snack in the form of…micronutrient fortifi ed foods…for severely under-weighed children in the age group of 3 – 6 years additional 300 calories of energy and 8 – 10 grams 12 grams of proteins should be given in the form of micronutrient fortifi ed food and/or energy dense food as THR.” Af- ter fi ling this affi davit, the ministry petitioned the Court for an order directing the implementation of the new suggestions. This was immediately opposed by the commissioners who addressed the letter to the Supreme Court dated 2 April 2009. While welcoming the enhancement of the fi - nancial norms for the supplementary nutrition prorgramme and the enhanced calorie and protein supplementation norms, the commissioners wrote “however, we are in strong disagreement with |36 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD the manner in which the ministry of women and child development is seeking to allow a backdoor entry of contractors and middlemen…Such an attempt to introduce contractors by the back door in the guise of supplying micro-nutrient fortifi ed food was repeatedly rejected by this Honb’le Court when several state governments fi led affi davits seeking to promote the contractor lobby for the provisioning of fortifi ed foods, snack and other ready to eat food in ICDS. This contractor lobby seeks to capture what it perceives to be potential central government annual budget of Rs. 5000 crore in the supplementary nutrition programme.” The commissioners then referred to the October 7, 2004 order of the Supreme Court which declared “the contractors shall not be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village communities, self-help groups and Mahila Mandals for buying of grains and preparation of meals.” This was reiterated in the December 13, 2006 order. The commissioners also pointed out that the local village organisations were providing “combinations of rice, pulses, oil, eggs, peanuts, green gram, milk, jaggery, soya bean, vegetables, lentil and other locally grown and available foods which were rich in micronutrients.” The commissioners argued that the local foods including “milk, jaggery, lentils, spinach, fruits, and drum stick leaves provide essential micronutrients like iron, vitamin A, Calcium, vitamin C, Thyamin Ribofl avin, folic acid, beta caro- tene and hundreds of other essential minor micro-nutrients and anti-oxidants.” The commissioners were of the opinion that the ministry was seeking “to open the door...for contractors providing micro-nutrient fortifi ed food in the guise of “take home rations” (THR) and a “morning snack.” They were of the opinion that “such a move would effectively reverse the approach taken by the Supreme Court for at least the last fi ve years to encourage local production and supply of hot, cooked meals and take home rations.” After this protest the Supreme Court made its order April 22, 2009 doubling the budgets for supplementary nutrition and increasing other benefi ts. As adolescent girls were nowhere mentioned in the affi davit and as the Court was informed that the government proposed to introduce a more substantial scheme called the Kishori Shakti Yojana (KSY) soon, the Court directed the government to continue providing the benefi ts to adolescent girls under ICDS until KSY is introduced. The most important part of the order was the direction to government to ensure that the orders − dated December 7, 2004 and December 13, 2006 inter alia − prohibiting contractors would be obeyed. By this order, therefore, the Supreme Court once again prevented the introduction of the contractors in the food security programmes of the government. As a result, I suppose, the global alliance for improved nutrition (GAIN) with its public-private partnership (a euphemism for privatisation) must be somewhat upset at this unholy coming together of global food giants. Groupe Danone, Unilever and Cargill seem to be lobbying quite actively in the corridors of the ministry of women and child development to capture a lucrative contract for the distribution of micro-nutrient food in the government programmes. Making money out of misery. The case goes on.

–Right to Food, Fourth Edition July 2009

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |37 THE POLITICS OF HUNGER

hen we fi led the Right to Food petition - PUCL vs UOI, we knew very little of the complex issue of food security. We did not expect to get very far with the petition. I remember cau- Wtioning Kavita Srivastava of PUCL Rajasthan not to tell anyone about the case because the chances were high of the Supreme Court rejecting the petition. I had, at the back of my mind, the 1989 experience of Kishan Pattnaik whose petition was disposed off on the empty assurance that steps would be taken to prevent starvation deaths. Of course, nothing was done by the State of Orissa. So ten years later, when the NHRC began once again to look into starvation deaths in Orissa, it seemed as if history was repeating itself. What we didn’t factor into our calculation was Justice BN Kirpal who unexpectedly took up the case with gusto. He would brush aside the usual bureaucratic hurdles, overrule petty objections and come straight to the point. The Court’s four initial orders lifted our morale and spurred a national campaign on the Right to Food that was subterranean and waiting for something to set off a chain reaction. It must be recognised, and stated, that the struggle on the Right to Food predates our case by many years and is very extensive. Groups, all over the country, have worked on food security in diverse ways. The pleadings, and the orders in the case, have been discussed earlier. However, I don’t propose to dwell on that now. I want to move forward to the lessons we have learnt of the case. Food is a volatile issue. It transcends hunger and involves not only large corporations but nations and – the bottom line – profi ts. Malnutrition and starvation deaths are only playthings. In this quagmire are all kinds of players − NGOs, struggle organisations with their immediate concerns and the big and silent players manipulating things behind the scene. The confusing thing is that all the players harp on hunger. The starting point of the agenda − of the people as well as of the MNCs − is malnutrition. The jargon of poverty is so well used by all, how do you fi nd out who your enemy is? The diffi culties faced by the people’s organisations is that they are fragmented, fi ghting against insurmountable odds and fi nancially impoverished. While they struggle for reform, at the local level, the big picture is often diffi cult to see. On the other extreme of the spectrum are powerful lobbies, contemptuous of the poor and sensing in hunger the opportunity to do business. These lobbies operate silently but they control the government. Not only we, in the support group of the campaign, but groups everywhere have asked government why grain, which is in surplus, is not released free of cost for the starving sections or for food-for-work. No answer. Perhaps we were barking up the wrong tree for globalisation and structural adjustments demands that the food subsidy be cut. Extending the subsidy is out of the

|38 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD question. These are the larger forces – the WTO, the World Bank and the IMF – with their numerous servile collaborators in government who decide not only the answer but what questions can be asked. It is alright to speak of malnutrition – that’s stating the obvious. It is alright to speak of “vulnerable sections” because that, in fact, strengthens their argument that subsidised food should go only to the poorest of the poor, as if hunger is a localised phenomenon. Such a preoccupation with “vulnerable sections” operates as some kind of super-targeting and works in favour of a much smaller commitment of grain and money. It is alright to speak of corruption in the Public Distribution System, because that fact is twisted to support the argument that PDS should be discontinued. If it is doing so poorly why not let it die a natural death? It’s alright to talk of new schemes. People, in government, know that these schemes will never be implemented and are content to have others waste precious time elaborately designing fanciful new schemes. The power play and deception is impressive. A massive Public Distribution System, through which 40 million tones of grain fl ow every year, is slowly strangled while the government dangles a bait of two million tones for destitute and vulnerable sections. We, in the struggle for food security, welcome any improvement of any scheme, but we are not content. The commitment to globalisation, the enslavement to MNCs and the resistance to welfare is so entrenched that even Supreme Court orders cannot change that. Despite the orders of the Court we found, on reviewing the situation after one year, that the off-take of foodgrains for welfare schemes went up by a paltry fi ve MTs. During the same period exports, at slightly above the BPL rates (to avoid any criticism from Parliament), was over fi ve MTs. Not a single state had fully implemented the Mid-day Meals order despite the deadline. Ration shops remained closed despite specifi c orders and large-scale diversion of grain continued unabated. Government persisted with the slow strangulation of the PDS despite the legal proceedings. It was like Jack-the-Ripper being distracted by a fl y. Then came the report of the “high level committee on long term grain policy.” It marks an alarming shift at the highest level of government, away from the Public Distribution System and towards the privatisation of food. This report should be distributed and discussed and the RTF campaign should gear up to oppose the changes contemplated before it is too late. The time has come now for the RTF to think globally while acting locally. To study the “reforms” done in other countries and its effect on the poor and thereby understand that the struggle in India has many parallels. The RTF needs to link up with groups in other countries fi ghting for food security. All this must be done in a transparent manner by involving all those in the campaign.

–Right to Food, Volume I 2004

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |39 NO WILL TO ACT

n December 2000, the union minister for consumer affairs and public distribution wrote to all chief ministers admitting that fi ve crore people were victims of starvation. A few days later, Ithe chief minister of Rajasthan complained to him that he had heard that lakhs of tons of foodgrains were lying in the godowns of the FCI and that there was a proposal to dump it in the sea, to make storage space for the next crop. When Manoj Parida, senior regional manager of the FCI, was interviewed on the Star TV news channel, he said that he could only give the grain to the states if the central government allocated it, and that his dilemma was that he couldn’t just throw it away! In 1988, in the case of Kishan Pattanaik, when starvation deaths were brought to the notice of the Apex Court, the court accepted the assurances of the Government of Orissa that the situation would be looked into, and hoped that starvation deaths would cease. Ten years later, another petition was fi led, detailing hundreds of starvation deaths. In 2001, when Kavita Srivastava of the People’s Union for Civil Liberties (PUCL), Rajasthan, fi led a petition, the condition of the people had not changed. No will to act Why is it that with 60 million tons of grain in surplus of the buffer stock, India still has hunger on this scale? Why are half of India’s children malnourished? No answer. Shanta Kumar, the minister responsible, remains unruffl ed despite widespread condemnation. And the Prime Min- ister appeared on television recently to say that the reports of starvation deaths were false and politically motivated. All this in a situation where it has been calculated that it is cheaper to give grain away free to the poor than to transport and store it! A compassionate court would have none of that. It found it incomprehensible that a litigant would have to move the highest court merely for a direction to government to implement its own schemes. “Cut the fl ab somewhere else,” said the Court when confronted with the argument that the states had no funds to feed hungry children. From the Ratlam Municipality vs Virdichand (AIR.1980. SC.1622) onwards, the Apex Court has held that when it comes to the enforcement of a Funda- mental Right, courts will not entertain the argument of fi nancial incapacity. Hunger spreads not because the State lacks the funds to act but it chooses to use its money elsewhere in what vs VR Krishna Iyer once called “a perverse expenditure logic.” A second air- craft carrier for the Navy, to be purchased soon, will cost a thousand crore, an amount that could feed all of this nation’s children. But macho muscle fl exing is more important than that! And we

|40 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD have examples of ostentation such as the foreign trip of the Vice President Krishna Kant, and his family, at the State’s expense. Schemes in dissaray The British evolved a Famine Code which ensured that anyone needing food in a famine area had only to turn up at a work site – a road, a school building, a watershed management programme – to get work. At the end of the day, a person would get half of her or his wages in grain. Famine records show that the prompt implementation of food for work programmes reduced hunger and prevented starvation deaths. For those unable to work – the old, infi rm and disabled – there was a dole of fi fty paise per day. Fifty years after Independence, this Famine Code is in disuse and the elaborate procedure laid down for tackling famines disregarded. The watered-down remedy – the Employment Assurance Scheme – provided for employment for two family members on food for work projects for 100 days in a year. This was never implemented. And recently, the Prime Minister announced from the Red Fort that the scheme was being upgraded and renamed as Sampoorna Grameen Rozgar Yojana (SGRY). This ‘upgraded’ scheme provided work for only ten days in a year! The ration card system, the only mechanism in place to feed the poor, is in disarray. In India’s capital, the identifi cation of Below Poverty Line (BPL) families started after the court case and there were many complaints of corruption in the issuing of forms.

State suport for the poor: What does it add up to? (Rupees per person below the poverty line, per day 2000 - 2001) Drought relief programmes Rs. 1.4 Other distribution system Rs. 0.4 Other social security schemes Rs. 0.3 Total Rs. 2.1 Source: Data base of PUCL vs Union of India case, Pending in the Supreme Court.

The Mid-day Meal scheme, introduced as far back as 1995 and requiring a cooked meal to be given to all children in government and government-assisted schools, was implemented fully only in Tamil Nadu. The Delhi Government only gave a few biscuits to its schoolchildren. The Annapoorna Scheme, which provides grain to the poorest of the poor at rupees two per kg was also not implemented. The benefi ciaries of the national old age pension scheme usually received their pensions six months late if at all. No wonder that the comptroller & auditor general, in his Year 2000 report, found signifi cant systematic weaknesses in the fair price shop system. He found the reports of employment generated not genuine. The employment assurance scheme, which promised a hundred days of food for work, in practice provided only nine days of work. Scarce resources were lost in the labyrinth of a slothful administrative system. The report found one-fi fth of rural households facing the prospect of hunger. Forty percent of all households did not get two square meals a day. Conclud-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |41 CHAPTER ONE ing, the Comptroller & Auditor General found serious ﬂ aws in design, execution and monitoring of the schemes. A study conducted by the Tata Economic Consultancy Services found a large number of bogus ration shops, and 30 percent of the grain being diverted.

In The Supreme Court of India Civil Original Jurisdiction Writ Petition (Civil) No.196 of 2001 People’s Union for Civil Liberties Petitioner(s) versus Union of India & Ors. Respondent (s) 23.7.2001 ORDER Counsel for the Petitioner is permitted to fi le a fresh application for interim relief. A copy of the same be given to the counsel for the Union of India as well as to the counsel for the states and for the Food Corporation of India. Learned Attorney General states that this should not be regarded as an adversarial litigation and it is a matter of concern for all. In our opinion, what is of utmost importance is to see that food is provided to the aged, infi rm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have suffi cient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to malnourishment, starvation and other related problems. Reply affi davits be fi led within two weeks by the states and the Union of India as well as the Food Corporation of India. In the meantime, we are sure that the responsible governments will act for the benefi t of their people. By way of an interim order, we direct the states to see that all the PDS shops, if closed, are re-opened and start functioning within one week from today and regular supplies made. Leave is granted to the Petitioner to implead other states also as parties to this petition. On such an application being fi led today, notice to issue to them.

The court directed that the targeted Public Distribution System be fully implemented by January 2002 and that all governments complete their identiﬁ cation of BPL families, issue ration cards and distribute 25 kg of grain per family per month by that date. A similar order was passed for the Antyodaya Anna Yojana scheme, under which the poorest of the poor get grain at rupees two per kg. The Supreme Court directed that the governments should consider giving the grain free to people who are too poor to buy it. It directed governments to

|42 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD provide a cooked Mid-day Meal in all government and government-assisted schools. It directed governments to implement the national old age pension scheme fully by January 2002 and to make payments of pension by the seventh of each month. Similarly, directions were made in respect of the Annapoorna Scheme, the Integrated Child Devel- opment Scheme, the National Maternity Beneﬁ t Scheme and the National Family Beneﬁ t Scheme. The last order is dated 8.5.2002. In this order the Gram Panchayats have been empowered to frame the food-for-work schemes, wherein special emphasis is to be given for the poor, women and Dalits. Contractors are prohibited. The Gram Sabhas are also empowered to conduct a social audit of all the food and employment schemes and to report instances of misuse of funds. On such reports being made, the authorities are required to punish the guilty.

In The Supreme Court of India Civil Original Jurisdiction Writ Petition (Civil) No.196 of 2001 People’s Union for Civil Liberties Petitioner (s) Versus Union of India & Ors. Respondent (s) 20.8.2001 ORDER The anxiety of the Court is to see that the poor and the destitute and the weaker sections of the society do not suffer from hunger and starvation. The prevention of the same is one of the prime responsibilities of the government – whether central or the state. How this is to be ensured would be a matter of policy which is best left to the government. All that the Court has to be satisfi ed and which it may have to ensure is that the foodgrains which are overfl owing in the storage receptacles, especially of FCI godowns, and which are abundance, should not be wasted by dumping into the sea or eaten by the rats. Mere schemes without any implementation are of no use. What is important is that the food must reach the hungry. The attorney general states that the case may be adjourned by a short date for considering what interim directions can or should be issued by this Court. A brief affi davit in this behalf may be fi led by the Union of India. Other states who have not fi led affi davits should also fi le the same within 10 days.

The Gram Sabhas are also empowered to monitor the implementation of the various schemes and to have access to relevant information as to how beneﬁ ciaries are selected and how beneﬁ ts are disbursed. A grievance redressal procedure is set out in this order. Complaints of non-implementation of the Supreme Court’s order is to be made to the CEO/collector and these complaints are to be acknowledged with a receipt. Ultimately, it is the chief secretary who is made responsible. Dr NC Saxena, former planning secretary and Mr SR Shankaran, former secretary, rural development have been appointed as commissioners of the Supreme Court for the purpose of looking into people’s grievances. The Supreme Court has also directed government to frame clear guidelines

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |43 CHAPTER ONE for the proper identifi cation of BPL families as there were complaints that this criterion is neither clear nor uniform. Ration shops have been directed to remain open throughout the month during fi xed hours, the details of which should be displayed on notice board. Transparency Most offi cials do not know of the schemes in their own jurisdiction. There is no way for people in a village to know what schemes they are entitled to. The order of the Court in the Rajasthan PUCL case will hopefully change the situation for the better. A translated copy of the Supreme Court order and the list of the benefi ciaries of each scheme are to be displayed on every Gram Panchayat notice board and in schools. Doordarshan and AIR are to publicise the schemes. All said and done, even with the Apex Court order, the level of compliance will go up to, say, 35 percent. Hunger will remain institutionalised. As along as priorities do not change, half of India’s population will be kept deliberately hungry by the State policy. Only a revolution can change that. Madhura Swaminathan in her recent publication “Weakening Welfare” has studied the Public Distribution System (PDS) in India. Noticing that food deprivation and insecurity persists on a mass scale, she concludes that this situation of mass deprivation is likely to worsen in the current context of “liberalisation, structural adjustment and the weakening of welfare systems.” She argues that there is need to expand and strengthen - not undermine or disband the PDS system. She has identifi ed ‘targeting’ as a dangerous policy introduced as a mechanism to ultimately close down the PDS. This part of the article is largely taken from her book. History of Public Distribution System 1964: FCI set up a sole central agency for procurement, storage, transportation and distribution of food commodities viz. rice, wheat, sugar, edible oils, kerosene and coal. 1964-1978: Drought of 1965/67 and 1972/73 provided strong impetus for the expansion of PDS. 1978-1991: Foodgrain distribution through PDS peaked in 1991 at 20.8 MTs. 1991 onwards: Foodgrain distributed through PDS falls substantially to 14 MTs in 1994. Stocks accumulate. Between 1991 and 1994 PDS process double. The poor are priced out. Sales drop. Stocks build up. At this point because global prices are temporarily high export taken place at the cost of nutrition in India. 1997: Targetting introduced. Between 1998 and 2001: APL prices were increased 85 percent (wheat) and 61 percent (rice) and BPL prices by 66 percent and 62 percent respectively. The spectre of mass hunger The National Sample Survey data show that per capita consumption of cereals declined in every state except Kerala in both urban and rural areas. A shift is noticed from cereals to other food items of lesser nutrition among the poor. This exac- erbates undernourishment. Nutritional surveys done by the national nutrition monitoring board confi rms this inadequacy of

|44 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD food (and cereal) intake by large parts of the population is below the recommended intake of 460 grams. Referring to “hidden hunger” it found an inadequate intake of micronutrients, which play a critical role in body functioning. The National Sample Survey Organisation found in 17 of India’s most populous states that the average caloric intake declined between 1972 and 1994. The decline was particularly sharp in rural areas. At the all-India level, total calories per head in rural areas has fallen on 2149 by 1999-2000 compared to 2211 in 1983, a decline by 72 calories per head. This level of 2149 calories per head in 1999 - 2000 is substantially lower than China or Brazil’s level of 2757 calories and 2797 calories in 1993. It is also lower than Tanzania or Kenya’s level of 1980. A commonly used indicator of undernourishment is Body Mass Index (BMI). This is the ratio of weight (kg) to the square of height (m). 18.5 is normal. Using this indicator, Shetty and James found 46 percent of persons chronically defi cient in 1991-1992. Severe undernourishment was observed among nine percent. In other words, one half of the population in the country is malnourished. Of these, 53 percent of children were found to be undernourished and 21 percent severally undernourished. Poverty Line excludes many hungry persons The original standard for the defi nition of the poor was thrice the food expenditure as it was shown that poor families spend one-third of their expenditure on food. Any household that spends more than one-third of its income on food is considered poor in the United States and eligible for food stamps. If this standard is used in India, 95 percent of all households would be considered poor. If one uses the China standard of food share of 60 percent, then 80 percent of the rural population and 60 percent of the urban population would be poor. Thus in India, the top 20 percent of the population can be excluded from systems of food security. When there is mass hunger the weight attached to every undernourished person who is wrongly excluded should be much higher than the weight attached to a rich person who benefi ts from the scheme. The conclusion drawn by Swaminathan is that the proportion of persons suffering deprivations in food and nutrition is higher than those below the poverty line. For example, 37 percent of urban household were BPL in 1993-94 while 80 percent of households were calorie defi cit. If the objective of PDS is food security then it should also look at those facing the risk of undernourishment. While anthropometric measures suggest 50 percent adults are undernourished, 70 percent of households are defi cient in food consumption. Decline in per capita offtake There are sharp regional variations in total and per capita offtake. Some of the Southern states, Andhra Pradesh,Tamil Nadu, Kerala and Karnataka, accounted for almost one-half of the PDS offtake of grain in the country. By contrast the four Northren states Bihar, Madhya Pradesh, Rajasthan and Uttar Pradesh accounted for only 10 percent in 1995. Kerala was undoubtably the KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |45 CHAPTER ONE leader with a fair system of public delivery. The average per capita offtake was 53.3 kg per year as compared to 2.3 kg in Bihar and 4.6 in Madhya Pradesh. The most striking feature of immediate post structural adjustment (1991-1995) was the wider- spread decline in per capita offtake. In Uttar Pradesh and Bihar in 1987, 98 percent of the rural population did not purchase any grain from PDS. In Kerala by contrast, 87 percent of the population purchased grain from PDS. The data indicated that PDS was not serving the vast majority of the country’s population and that there was a near total collapse of the PDS system in Bihar and some Northren states. Corruption and mal-administration In Thane district in Maharashtra, Swaminathan found that ration cards of Scheduled Tribes showed full offtake though the tribes had not purchased food from the ration shops. Other re- searches have found bogus ration cards, poor quality grains and short weighing of foods. Re- searchers have estimated that only 17 percent of the wheat lifted from the FCI by the state governments reaches the fi nal consumer in Bihar! Insuffi cient supply of grains was the most important reason given for not using PDS. Forty percent did not buy grain because there was none to be bought.

Expected resource requirements of an all-India “employment guarantee scheme” Grain : 21.9 million tons per year. Cash: Rs.10,208 crore per year. Assumptions 1. Employment generation: 350 crore person-days per year. 2. Wage/material ratio: 75/25. 3. Average wage: Rs.50 per day. 4. 75 percent wages paid in kind, 25 percent in cash. 5. IIn-kind portion of the wage to be valued at market price ( Rs.6/kg)

Targets, food stamps and other rackets Mexico: Charges began in the 80s when food subsidies were cut by 80 percent. In April 1986, a targeted food stamps programme was started where stamps could be exchanged for food. Target- ting was done in three ways. First there was an income criterion where only those with an income less than twice the minimum wage were eligible. Then there was geographical targetting of low income neighbourhoods. Thirdly, there was self targetting as households had to go to a particular place to register. Targetting led to a fall in the number of households receiving subsidised food. The decline was 80 percent between 1983 and 1987. Also, the market price of food rose sharply. In 1982, the basic food basket was 30 percent the minimum wage; it rose to 125 percent in 1990. Sri Lanka: For more than 30 years Sri Lanka had an effective universal system of heavily subsi-

|46 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD dised food rationing. The individual entitlement was 7.2 kg of rice per month. In 1972, a distinction was made between persons paying income tax and those not paying. In 1977, encouraged by the IMF, it was decided to cut food subsidies. The IMF wanted food subsidies to go completely whereas government wanted to maintain the food subsidy for the bottom 40 percent of the population. In 1978, targetting was introduced with an income qualifi cation. In 1979, there was a shift to the targetted food stamp programme. As a result, there was a fall of 50 percent in the participating households. A signifi cant proportion of low income groups were excluded from the food stamp programme. Then the value of food stamps declined as infl ation increased causing the food subsidy to decrease.The prices of food commodities rose sharply. In the evaluation of the scheme the ministry of plan implementation found more families put at risk nutritionally, a decline in per capita calorie intake of the poor and increase in the proportion of children suffering from acute malnutrition.

Can India afford to spare 21.9 million tons of grain and Rs.10,208 crore in cash each year for an “employment guarantee scheme”? YES 1. 21.9 million tones of grain represent barely one-third of the current stock less than the current gap between “procurement” and “distribution.” 2. The government has already allocated Rs. 5,000 crores for rural employment generation under the Sampoorna Grameen Rozgar Yojana. 3. Unloading 21.9 million tons from the current stock will save a further Rs. 5,000 crore or so in storage costs. 4. Further resources are available under related schemes such as the calmity relief fund.

Zambia: In January 1989, food coupons were introduced and in July targetting on the basis of income began. Many poor households were excluded and food security worsened. Jamaica: Up to 1984, there was a system of generalised price subsidies. In 1984, these were eliminated and replaced by food stamps and a school feeding programme. There were two target groups. The fi rst category included pregnant or lactating women, children under fi ve, the elderly, poor and the disabled. The second category included those below a particular income level. This standard was lower than the cut-off used by the Statistical Institute of Jamaica to identify the lowest income group. As a result, the government spending on food subsidies fell dramatically. While one percent of GNP was spent on food subsidies in 1972, spending on food stamps in 1994 was only 0.23 percent. Spending in 1994 was only 57 percent of the 1991 level in real terms. Secondly, the real value of stamps fell by 17 percent. Thirdly, high infl ation led to a steeprise in the cost of the minimum food basket. In October 1984, for example, the cost of the minimum food basket was three times the minimum wage. Fourthly, the number of participants were restricted. Fifthly, many of the poor were excluded because their identifi cation was based on crude surveys with no attempts to verify reported income except through observing “quality of housing and consumer goods” during a brief home visit. There was no system of continuous verifi cation or registration. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |47 CHAPTER ONE

Participants had to collect the stamps on certain days of the mouth. As a result of all this, it was found in 1988 that 53 percent of households in the poorest quintile were not receiving food stamps. Nearly 63 percent of households with pregnant or lactating women were excluded. 50 percent of the household with malnourished children were denied benefi ts. In the poorest quintile of households with elderly persons, 45 percent were excluded from food stamps. This situation worsened in the 80s. Tunisia: In December 1993, a doubling of the prices of cereals was announced. There were widespread and spontaneous “bread riots.” The President rescinded the price increases. In the early 1990s, as part of a structural adjustment loan, targetting was introduced. The extensive and successful system prevailing in Tunisia since the 1970s came under attack. Expenditures on food subsidies fell. In 1993, food subsidies accounted for two percent of GDP as compared to four percent a decade earlier. Between 1990 and 1993, there was a 14 percent fall in caloric intake and a 16 percent fall in protein intake. Columbia: A study, done by Pinstrup and Anderson in 1993, found the food subsidy programme targetted out of existence. India: Sabotaging PDS In recent times, advisors to the GOI and the World Bank havesuggested a shift from PDS to a system of food stamps or coupons. Such advice generally ignores – not only the experience of other countries but also the inherent diffi culties in implementing such a system. Swaminathan points out that a food stamp system entails extensive book keeping, revalidating of coupons and the possibility of fraud by the counterfeiting of coupons. Two major moves were made by the Government of India to sabotage the PDS system; in all probability with the nudging of the WB and the IMF. The fi rst came in 1992 with the revamped PDS (RPDS) and the second in 1997 with targetted PDS (TPDS). This comes together with another major policy shift in the 1990’s away from the agricultural strategy of self suffi ciency in foodgrains production. One way of weakening the PDS in the early 1990s was by repeatedly raising the price in the PDS shops. These prices were increased to such an extent that the cumulative price increase of foodgrains in the PDS shops was higher than the rise in the general price index. Coupled with this, government sharply reduced the supply of foodgrains to the PDS since 1991. Thus from 1991-1998, there was a fall in per capita offtake. Revamped PDS involved tagretting specifi c areas such as drought prone, desert, Tribal, hilly and urban slum areas. Targetted PDS used the poverty line to demarcate poor and non-poor. This system was so arbitrary and irrational that it resulted in large numbers of poor persons being excluded. There was no method at all to determine whether the family fell below the poverty line. The income criteria was not followed in most states and particularly in the rural areas as, following the started income criterion would result in 90 percent of households falling below the poverty line. Reports from many rural areas indicated households were classifi ed as falling below the poverty line on the basis of visual inspection as to whether the household had a tiled roof or a mud fl oor. In many Tribal areas, poor families were excluded if they stated that they ate meat!

|48 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

Amount spent by the Union of India on employment generation S.N. Head of Expenditure Amount(2001-2)in Crore Swarnajayanti Gram Swarozgar 1. 480 Yojana 2. Sampurna Grameen Rozgar 3425 + 5 MT grain 3. Food for Work Programme 800 4. Drought Prone Area Programme 210 5. Desert Development Programme 150 6. Swarna Jayanti Sahari Rozgar Yojana 45.5 Rural Employment Generation 7. 150 Programme 8. Employment Assurance Scheme 1800 9. Jawahar Rozgar Yojana 1600 10. TOTAL (Figure A) 8660.5 + 5 MTs of foodgrain Amount spent by the Union of India on maintaining the amount of grain necessary (21.9 million tones) to fund the Right to Work S.N. Head of Expenditure Amount (2001-2) in Crores 1. Storage Costs for 21.9 MT 4949.4 2. Transit Storage Losses for 21.9 MT 172.95 3. Deterioration for 21.9 MT 58.24 4. Interest on Overdraft for 21.9 MT 1077.83 TOTAL (Figure-B) 6258.42 Moreover, according to a recent report quoting RD Kapur (secretary, ministry of food and civil supplies), the government is willing to pay “at least” Rs.4000 per ton to private contractors for storing FCI grain, and give the conractors a tax holiday of 10 years. At Rs.4000/ton, the government would be paying Rs.8760 crores each year just to store the 21.9 million tons of grain. This would raise the above total to Rs.10,069.02 crores A+B (8660.5 + 6258.42 = Rs. 14918.92 Crores + 5 MTs grain A+C (8660.5 + 10,069.02) = Rs.18729.52 Crores + 5 MTs grain Calculation done by Dr Yug Chaudhary, Advocate. Swaminathan’s study of the revamped and targetted PDS found that entitlements were lower in the revamped PDS areas than under general PDS. She found that retail prices in PDS shops in Maharashtra were the highest in the country and rising faster than at the national level. As a result, quantities of grain sold were falling since 1991. Targetting had replaced the per capita norm by the family norm. Using the poverty line resulted in misidentiﬁ cation of households and mistargetting. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |49 CHAPTER ONE

In The Supreme Court of India Civil Original Jurisdiction Writ Petition (Civil) No.196 of 2001 Versus People’s Union for Civil Liberties Petitioner (s) Union of India & Ors. Respondent (s) ORDER After hearing learned counsel for the parties we issue the following directions: (a) The Gram Panchayats shall frame employment generation proposals in accordance with the Sampoorna Grameen Rozgar Yojana (SGRY) guidelines for creation of useful community assets that have the potential for generating sustained and gainful employment such as water and soil conservation, afforestation and agro-horticulture, salvipasture, minor irrigation and link roads. These proposals shall be approved and sanctioned by the Gram Panchayats and the work started expeditiously. (b) The respondents shall focus the SGRY programme towards agricultural wage earners, non- agricultural unskilled wage earners, marginal farmers and, in particular, SC and ST persons whose wage income constitutes a reasonable proportion of their household income and to give priority to them in employment, and within this sector shall give priority to women. (c) The respondents shall make the wage payment on a weekly basis. (d) The respondents shall prohibit the use of contractors in the SGRY programme. (e) The central government shall make fi nancial releases under the different employment generation schemes to each state on schedule, provided that the state governments fulfi l the conditions as prescribed by the SGRY. The state governments are directed to fulfi l these conditions and implement the SGRY expeditiously. The state government will furnish utilisation certifi cate and it is only on the furnishing of the same that further amounts shall be released. The funds provided shall only be utilised in respect of SGRY programme. (f) The Gram Sabhas are entitled to conduct a social audit into all food/employment schemes and to report all instances to misuse of funds to the respective implementing authorities, who shall on receipt of such complaints, investigate and taken appropriate action in accordance with law. (g) On a complaint being made to the chief executive offi cer of the Zilla Panchayat (CEO)/Col- lector regarding non-compliance of the orders of this Court the concerned CEO/collector shall record the salient features of the complaint in a register (h) The CEO/collector of all the districts in the states and territories shall scrutinise the action taken by all the implementing agencies within their jurisdiction to ensure compliance with this Court’s orders and report to the chief secretary. (i) The responsibility for implementation of the order of this Court shall be that of the CEO/collector. The chief secretary will ensure compliance with the order of this Court.

|50 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

(j) Dr NC Saxena, former planning secretary, Government of India, and Mr SR Shankaran, former secretary, rural development, Government of India, shall function as commissioners of this Court for the purpose of looking into any grievance that may persist after the above- mentioned grievance resolution procedure has been exhausted. (k) On the commissioner’s recommending a course of action to ensure compliance with this Court’s order, the state government/UT administrations, shall forthwith act upon such recommendation and report compliance. (l) The commissioners shall be at liberty to take the assistance of individuals and reliable organisations in the state and Union Territories. All offi cials are directed to fully cooperate with such persons/organisations, to bring about effective monitoring and implementation of the order of this Court. (m) The Gram Sabhas are empowered to monitor the implementation of the various schemes and have access to relevant information relating to, inter alia, section of benefi ciaries and the disbursement of benefi ts. The Gram Sabhas can raise their grievance(s) in the manner set out above and the redressal of the grievance(s) shall be done accordingly. (n) It has been stated by the petitioner that the identifi cation of BPL families is not being done properly and that the criteria for the identifi cation of the BPL families are neither clear nor uniform. The central and the state governments are directed to frame clear guidelines for proper identifi cation of BPL families. (o) The respondents shall ensure that the ration shops remain open throughout the month, during fi xed hours, the details of which will be displayed on the notice board.

Moghe in his study of Maharashtra found that when targetted PDS was announced there were 60 lakh households, according to the central government, eligible for BPL category. The state restricted this number to 43 lakh. In slums, households were classifi ed as BPL or APL on the basis of a few queries resulting in absurdly low numbers. In Dharavi, Asia’s largest slum with a population of 0.5 million, the rationing control offi cer identifi ed only 365 BPL families in 1997 and after ‘re-checks’ the number fell to 151 in 1999! The World Bank has recommended that PDS be targetted to the “very poor” and that a distinction be drawn between the “very poor” and the “moderately poor” to improve transfer of food to the “ultra poor.” The very poor are defi ned as households that have expenditure less than three-fourth the BPL expenditures. The remaining one-fourth are defi ned as moderately poor. In short, an extremely narrow form of targetting is being propagated to groups within the poor. This, Swaminathan concludes, is most undesirable. What we need is a system of near universal provision. At most, the top 20 percent of the population can be excluded. When there is targetting especially with a low income cut-off, errors in measurements can mean disqualifi cation for a genuinely poor person. Secondly, there is an incentive to cheat. Thirdly, time specifi c cut-offs make little sense when there is downward income mobility. Gaiha, in his 1987 study found that 13 percent of the non-poor in 1968 had become poor in 1970.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |51 CHAPTER ONE

Planned destruction of India’s agricultural production Utsa Patnaik has written on this issue. In this part of the article we rely on her inputs. Foodgrain output dropped sharply to 1.66 percent (1999-2000) compared to 3.54 percent for the previous decade. There was a decline of eight million ha in the area sown to foodgrains. The sharp cut back in government rural development expenditures reduced growth in rural employment to only 0.6 percent (1993-1999) as compared to two percent (1987-1993). In The Supreme Court of India Civil Original Jurisdiction Writ Petition (Civil) No.196 of 2001-2 People’s Union for Civil Liberties Versus Union of India & Ors. O R D E R After hearing learned counsel for the parties we issues, as an interim measure, the following directions: 1. Targeted Public Distribution Scheme (TDPS) i) It is the case of the Union of India that there has been full compliance with regard to the allotment of foodgrain in relation to the TDPS. However, if any of the states gives a specifi c instance of non-compliance, the Union of India will do the needful within the framework of the scheme. ii) The states are directed to complete the identifi cation of BPL families, issuing of cards and commencement of distribution of 25 kgs. grain per family per month latest by January 1, 2002. iii) The Delhi Government will ensure that TDPS application forms are freely available and are given and received free of charge and there is an effective mechanism in place to ensure speedy and effective redressal of grievances. 2. Antyodaya Anna Yojana i) It is the case of the Union of India that there has been full compliance with regard to the allotment of foodgrain in relation to Antyodaya Anna Yojana. However, if any of the states gives a specifi c instance of non-compliance, the Union of India will do the needful within the framework of the scheme. ii) We direct the states and the Union Territories to complete identifi cation of benefi ciaries, issuing of card and distribution of grain under this scheme latest by 1st January, 2002. iii) It appears that some Antyodaya benefi ciaries may be unable to lift grain because of penury. In such cases, the Centre, the state and the Union Territories are requested to consider giving the quota free after satisfying itself in this behalf.

|52 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

3. Mid-day Meal Scheme i) It is the case of the Union of India that there has been full compliance with regard to the Mid-day Meal Scheme (MDMS). However, if any of the state gives a specifi c instance of non-compliance, the Union of India will do the needful within the framework of the scheme. ii) We direct the state governments/Union Territories to implement the Mid-day Meal Scheme by providing every child in every government and government assisted primary schools with a prepared Mid-day Meal with a minimum contest of 300 calories and 8-12 rams of protein each day of school for a minimum of 200 days. Those governments providing dry rations instead of cooked meals must within three months start providing cooked meals in all government and government aided primary schools in all half the districts of the state (in order of poverty) and must within a further period of three months extend the provisions of cooked meals to the remaining parts of the state. iii) We direct the Union of India and the FCI to ensure provision of fair average quality grain for the scheme on time. The states/Union Territories and the FCI are directed to join inspection of foodgrains. If the foodgrain is found, on joint inspection, not to be of fair average quality, it will be replaced by the FCI prior to lifting. 4. National Old Age Pension Scheme (i) It is the case of the Union of India that there has been full compliance with regard to the National Old Age Pension Scheme. However, if any of the state gives a specifi c instance of non-compliance, the Union of India will do the needful within the framework of the scheme. (ii) The states are directed to identify the benefi ciaries and to start making payments latest by January 1, 2002. (iii) We direct the state governments/Union Territories to make payments promptly by the seventh of each month. 5. Annapoorna Scheme The states/Union Territories are directed to identify the benefi ciaries and distribute the grain latest by January 1, 2002. 6. Interated Child Development Services Scheme (i) We direct the state governments/ Union Territories to implement the Integrated Child De- velopment Services Scheme (ICDS) in full and to ensure that every ICDS disbursing centre in the country shall provide as under: (a) Each child up to six years of age to get 300 calories and 8-10 grams of protein (b) Each adolescent girl to get 500 calories and 20-25 grams of protein (c) Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein (d) Each malnourished child to get 600 calories and 16-20 grams of protein

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |53 CHAPTER ONE

(e) Have a disbursement centre in every settlement (ii) It is the case of the Union of India that there has been full compliance of its obligations, if any, under the scheme. However, if any of the states gives a specifi c instance of non- compliance, the Union of India will do the needful within the frame work of the scheme. 7. National Maternity Benefit Scheme (i) We direct the state governments/Union Territories to implement the National Maternity Benefi t Scheme (NMBS) by paying all BPL pregnant women Rs.500 through the sarpanch 8-12 weeks prior to delivery for each of the fi rst two births. (ii) It is the case of the Union of India that there has been full compliance of its obligations under the scheme. However, if any of the states gives a specifi c instance of non-compliance, the Union of India will do the needful within the framework of the scheme. 8. National Family Benefit Scheme (i) We direct the state governments/Union Territories to implement the National Family Benefi t Scheme and pay BPL families Rs.10,000 within four weeks through a local sarpanch, whenever the primary bread winner of the family dies. 9. We direct that a copy of this order be translated in regional languages and in English by the respective states/Union Territories and prominently displayed in all Gram Panchayats, government School Building and fair price shops. 10. In order to ensure transparency in selection of benefi ciaries and their access to these schemes, the Gram Panchayats will also display a list of all benefi ciaries under the various schemes. Copies of the scheme and the list of benefi ciaries shall be made available by the Gram Panchayats to members of public for inspection. 11. We direct Doordarshan and AIR to adequately publicise various schem and this order. We direct the chief secretaries of each of the state and Union Territories to ensure compliance of this order. They will report compliance by fi ling affi davits in this Court within eight weeks from today with copies to the attorney general and counsel for the petitioner. We direct liberty to the Union of India to fi le affi davit pursuant to the order of this Court date November 21, 2001. List the matter for further orders on February 11, 2002. In the meanwhile, liberty is granted to the parties to apply for further direction, if any.

Surplus production of a few ‘advanced countries’ accounts for four-ﬁ fth of the global trade in cereals. These countries have focussed their attention on the markets of the ‘developing world.’ To penetrate these economies and attack their agricultural production systems, the advanced countries ensured that their export of grain would be at very low prices so as to make local prices appear exorbitant. One of the ways in which the prices were kept artiﬁ cially low was by the grant of large subsidies to the farming sector including grants to agro-business corporations. During 1980 to 1986, for example, cereal prices fell by one-fourth, the US increased the producer subsidy equivalent (PSE) as a percentage of total value of agricultural output from nine percent

|54 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD to an astronomical 45 percent. European countries followed suit. Ten European countries raised the PSE to agricultural output percentage from 25 to 66 while Japan raised it from 71 to 93. These highly infl ated susbsidy levels of the mid-eighties were then deliberately made the base from which a mere one fi fth cut was undertaken by advanced countries in the agreement on agricultural of GATT in 1994. There is another indicator of farm subsidies. It is called the “total support estimate (TSE).” This is the fi gure of total support to farmers. The USA, which had reduced its TSE to 34 percent of it value of agricultural production by 1997, raised it by 51 percent in 1991 and then hugely in 2002 thus transferring between 71 to 96 billion dollars between 1997 and 1999 to the farm sector. There is a Farm Bill before the US Congress proposing to pay additional subsidies of 73.5 billion over the next 10 years. Similarly, the 24 OECD countries including Japan increased their TSE from 46.5 percent in 1997 to 59.4 percent by 1999. As a result, the global prices of major staples like rice, wheat and maize have been halved and developing countries where protection has been removed have become vulnerable. The proponents of globalisation thus have double standards. While massively subsidising their farm sector including massive agro-corporations, the argument is simultaneously made in the developing world for subsidies to be removed! Advanced countries have through incessant pressure applied succeeded in getting quantitative restrictions removed fully, years before the mandatory date. They are now pushing for the winding up of the PDS. Thus opening up to free trade in agriculture is taking place at the worst possible time when global food prices have been crashing. After grain inputs for Eastern Europe and CIS countries declined sharply in the early 1990s, the USA turned its attention to penetrating South East Asian countries using the familiar rhetoric that all subsidies were bad. The Philippines, for example, gave up its functioning grain procurement and distribution system and became a net importer of US grain. Suicides In India, liberalised trade policies have resulted in massive losses for farmers. Farmers in Andhra Pradesh, Maharashtra, Karnataka and other states have been devastated. Many have committed suicide. The cotton farmers have been killing themselves since 1998. In the fi rst month of 2002, over 25 new cases of suicide were reported from Andhra Pradesh. Many have resorted to selling body parts such as kidneys. Recovery proceedings have resulted in the taking away of land, houses, farming tools and equipment and even household articles including utensils! Swaminathan has demolished the myth that the ‘burden’ of food subsidies is too high, pointing out that food subsidy as a percentage of GDP has remained unchanged over the last 31 years at 0.31 percent of GDP. This compares favourably with Sri Lanka (1.3 percent in 1984), Mexico (0.63 percent in 1984) and Tunisia (2 percent in 1993). Kerala leads the way According to Swaminathan, the Kerala experience shows that with political commitment food security can be obtained. The establishment of an effective PDS system in Kerala was the outcome of a strong people’s movement for food.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |55 CHAPTER ONE

As a result, the coverage is almost universal. In 1996, ninety ﬁ ve percent of households were covered. The poor depend on and use PDS more than the rich. The functioning and delivery system is better than other states. Where do you stand, Mr Amartaya Sen? Amartaya Sen’s support for the movement to save the PDS is crucial. His support would mean much. His position however is not clear. There are broadly two camps. The pro-PDS and anti- PDS. Both speak of concern for the poor, so the debate can be confusing.

–Right to Food, Volume I 2004

|56 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE PRIVATISATION OF FOOD

ndia is steadily moving in the direction of curtailing the procurement of grain, reducing food subsidies relating to the poor, raising the prices of grain for the poor and closing the Public IDistribution System (PDS). This is going to be one of the largest privatisation endeavors ever. The PDS was started in 1964 to ensure food security, support indigenous grain production and self-reliance and to stabilise market prices. It expanded considerably during the 70s and the 80s. From the early 90s, with the intervention of the World Bank and the IMF, the strangulation of this system began. Prices of grain were increased to such an extent that the poor were priced out. The worst quality grain was sent to ration shops. In 1992 the PDS was revamped and in 1997 the targeted PDS sharply cut the number of benefi ciaries who could avail of grain in the ration shops. As a result, today Above Poverty Line (APL) offtake is almost zero and Below Poverty Line (BPL) offtake is falling rapidly as prices increase to market prices. In the six Northren states − Bihar, Jharkhand, Madhya Pradesh, Rajasthan, Uttar Pradesh and Uttaranchal − the PDS system has almost totally collapsed. In 1997, when targeting was introduced and the universal PDS system was converted into one available mainly to persons below the poverty line, the change was hailed as one likely to benefi t the poor. Experience showed otherwise. The poverty line, itself an ambiguous concept, was subject to many changes with governments anxious to show that poverty was declining over the years. Then the income criteria was jettisoned in favour of a complicated survey form. Com- plaints, from all over the country, indicate that about 50 percent of poor households are being excluded because they have a cycle or an old radio and the like. Then the central government introduced arbitrary ceilings for each state on the total number of BPL families they could offi cially recognise. And now the latest “vulnerable sections” and “destitutes” are the sections on which the state has decided to focus its resources and grain. Thus the state has shifted away from its commitment to assuage hunger generally to a very narrow focus of intervening only in cases of sections on the brink of starvation. If we were to go by the American standards of defi ning a poor family as one which spends more than one-third of its income on food, then 95 percent of all Indian households would be considered poor. Going by the Chinese standard of 60 percent foodshare, 75 percent of the Indian population would be considered poor. But the spurious Indian standards show less, about 30 percent of the population, as below the poverty line. A considerable part of this offi cially poor segment does not get the benefi ts of the PDS system because of large-scale corruption and the siphoning away of grain. Their ration cards remain in ration shops. Their grains are diverted to the open market.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |57 CHAPTER ONE

As things stand today, the per capita consumption of cereals, intake of micronutrients and average caloric intake are all declining. Going by Body Mass Index (BMI) half the population is malnourished. 53 percent of the children are undernourished with 21 percent severely undernourished. In 1988 when Kishan Pattanaik, the Socialist leader, fi led a PIL in the Supreme Court, his case was dismissed on an empty assurance, by the state of Orissa, that things would be looked into. A 1998 enquiry, by the NHRC, into starvation deaths in Orissa languishes to this day. When the Rajasthan PUCL fi led its PIL in the Supreme Court in 2001 petitioners were apprehensive that their petition would be dismissed. But Justice Kirpal took up the case with gusto and several important orders were made requiring government to implement its various welfare and employment schemes and empowering the gram sabhas to conduct social audits. Despite this case, and the enormous attention given to the issue by the national media, offtake of grain went up only marginally by fi ve million tones. Even today the order for Mid-day Meals, to be given to all primary school children, has been disobeyed in more than half the states. It is odd that an Asian superpower, having nuclear bombs and one of the largest standing armies in the world, should fi nd spending Re. 1.25 per child per day for a Mid-day Meal unaffordable. The Mid-day Meal has been lauded as improving nutrition, increasing attendance and also reducing caste discrimination as children of different castes eat together. In the Ratlam Municipality case, the Supreme Court held that, when it concerns the implementation of a Fundamental Right, the court will not entertain the plea that the state has no funds. Why then is the Indian government so reluctant to give its surplus grain to the poor free or at a highly subsidised rate? The answer lies in the powerful forces operating behind the scenes including the agents of the WTO who, while supporting the huge subsidies given to the American, European and Japanese farmers, argue that in India food subsidy should be eliminated and the trade barriers, preventing the import of grain, be dismantled. The multinational corporations benefi t from the producer subsidy equivalent (PSE) and the total support estimates (TSE) which are measures of subsidies for agricultural production. These corporations are poised to fl ood India with cheap grain. They argue that indigenous agricultural production be curtailed, that procurement be cut and that the PDS be replaced by an open market system where ration shops will become like any other shop. To meet the obvious objection they make a facile suggestion that the poor be given coupons for the procurement of grain. These “reforms” have been tried and have failed disastrously in many countries. Sri Lanka, Zam- bia, Jamaica, Tunisia, Columbia and many other countries went the IMF way − switching from the universal PDS to a targeted system based on income criteria − with disastrous results. The coupon system was fraud ridden and led to food riots in some countries. The overall result was that the poor were thrown out of the food security system. The same bankrupt package of reforms is now being suggested by the high-level committee on long term grain policy which recently submitted its report to the government. Perhaps, like the Phillipines, India will one day give up its functioning grains procurement and distribution system and become a net importer of US grain. We are moving quickly in that direction. Foodgrain output has dropped sharply in the 1990s. There has been a considerable decline in the area sown to foodgrains. Rural unemployment and

|58 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD hunger is skyrocketing. As a result, despite the pendency of the case in the Supreme Court, the number of starvation deaths reported was more than the deaths reported in the year prior to the case. Andhra Pradesh, Maharashtra and Karnataka reported many suicide deaths. Andhra Pradesh reported poor selling their kidneys for food. The Lambada Tribals of Andhra Pradesh were discovered selling their children to adoption agencies for Rs. 400 a child. In this state of hunger Chandrababu Naidu was declared Chief Minister of the Year. While industrial houses had Rs. 80,000 crore in debt without a director of a single company being affected, acquisition proceedings, in respect of the poor, saw the taking away of their land, houses, farm tools and even household utensils. For hunger to be assuaged the State must commit itself to feeding the poor with highly subsidised grain. It must acquire this grain by continuing with the present system of procurement. Forty MTs are procured every year. An efﬁ cient Food for Work programme requires at least 20 MTs. Such a programme would create employment, build rural infrastructure and reduce hunger. The government, however, is moving in the opposite direction. It has replaced the employment assurance scheme, which guarantees 100 days of employment in a year to anyone seeking work, by the Sampoorna Grameen Rozgar Yojana, which guarantees less than ten days in a year. The total quantity of free grain to the states is ﬁ ve MTs out of the 56 MTs currently lying in godowns. The inevitable conclusion is that the imperatives of WTO and globalisation require that market forces should prevail and that the poor not be given food at a subsidised level, even if they are to starve. The Indian government seems to be on the brink of capitulating to this pressure.

–Combat Law April-May 2003

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |59 SABOTAGING PUBLIC DISTRIBUTION SYSTEM

n a cruel and unprecedented move the cabinet has decided to reduce the Public Distribution System (PDS) outlay by over 4,524 crores by increasing prices and cutting quota. A family is Inow entitled to only 35 kg per month, though it needs 60 kg. This has been done on the basis of a World Bank sponsored dubious analysis of National Sample Survey Organisation data purporting to show that poverty in India had reduced from 36 percent to 26 percent of the population. The conclusion drawn was that globalisation, privatisation and structural adjustment were indeed working not only for the rich but also for the poor. Several economists joined the bandwagon of the World Bank and published papers to this effect only to be met by a barrage of criticism. Matters came to a head when the number of persons eligible, to get subsidised rations under the Below Poverty Line (BPL) quota, were sought to be drastically reduced by the central government in 2002. In Rajasthan alone, 10 lakh families were to be removed from the BPL list. The People’s Union for Civil Liberties (PUCL) moved the Supreme Court that stayed the decision. The poverty line was ﬁ xed in 1979 by the Planning Commission at Rs. 49 per person per month corresponding to an intake of 2,400 k calories per person per day. In 2001, the Planning Com- mission released its updated poverty line. In the era of globalisation, where trade and business standards are sought to be universalised, the poverty line of the Planning Commission made interesting reading. In the capital city for example, the poverty line stands at Rs. 511 per person per month or approximately Rs. 17 per day. A domestic servant, or an unskilled worker, earning Rs. 18 would be ineligible to get a BPL card! In Delhi travel to work alone would normally cost an employee that amount. In the rural areas it is Rs. 11. The old International Poverty Line is $ 1 per person per day, or, in Indian terms, approximately Rs.1400 per month. It is more common to use the revised International Poverty Line standard of $ 2 per day. And yet the Indian government, which otherwise swears by globalisation, still uses a standard of $ 1/3 per person per day! By this statistical jugglery government boasts, to the international community, that liberal reforms have worked and poverty has been reduced. Then Prof Utsa Patnaik of JNU published a remarkable paper entitled The Republic of Hunger where, on the basis of the latest census, 70 percent of the Indian population is located at or below the poverty line of 2,400 k calories per person per day. Going by this standard of food intake, over 700 million people in India are poor and consume less than the minimum! She found that, in the last decade, the annual absorption of foodgrains per head had come down from 177 kg to 155 kg, levels last seen during World War II. She concludes that though foodgrains are available people are too poor to purchase these grains at the prices they are available. Hardly 10 million tons were sold through PDS in 2000 as compared to 20 million tons in 1991.

|60 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

After PDS was set up in 1964 and distribution peaked in 1991 it was sabotaged by price increase and targeting. Between 1991 and 1994, PDS prices were doubled. Between 1998 and 2001, APL prices were increased by 85 percent and BPL prices by 66 percent. Sales dropped and the poor were priced out. BPL and APL price must be slashed to make grain affordable for the poor. In 1997, targeting was introduced. This break-up into Above and Below Poverty Line families was done ostensibly to benefi t the poor but it is now well documented that targeting errors were so numerous and so severe that millions of the poor are excluded from the BPL list and millions of ineligible families included therein. With the largest population of malnourished people in the world and with half the nation’s women and children malnourished, “business as usual” will not do. Drastic steps are called for. The heart of the matter is money. India’s food subsidy − at one percent GDP − is not high by international standards. India must consciously dedicate a part of its GDP towards subsidising food for the poor. The subsidy must go up not down. In the present extreme situation, two percent GDP is not excessive. Jamaica in the 70s and Tunisia in the 80s had these subsidy levels. Once upon a time, Sri Lanka too had an effective universal system of heavily subsidised food. Encouraged by the IMF, the government began targeting in 1972 and shifted to a fraudulent food stamp programme in 1979. The poor were excluded. Similar changes were made in Mexico in the 80s and there was a fall of 80 percent in the number of households receiving subsidised food between 1983 and 1987. In Jamaica upto 1984 price subsidies, in place for food, were eliminated and in 1988 it was found that 53 percent, of the poorest households, were not receiving food stamps. The decision of the central cabinet − to reduce the food available to the poor − is a betrayal of the mandate of the UPA government that was elected by the poor in the hope that it would reverse the anti-people policies of the NDA government. Rumours circulating in the corridors of power say that, since the Employment Guarantee Act has been brought into force without a fi nancial memorandum, the fi nance minister and the Planning Commission are not ready to make funds available unless funds are diverted from the PDS. Cutting back on the main existing food security programme on the illusory promise of employment guarantee will be a huge setback for the poor. The high level committee goes dangerously astray Built up painstakingly, over the last three decades, is an incredible structure for the maintenance of national food security. It rests on three pillars: i) a reasonable price paid to farmers so that production levels of cereals are kept up; (ii) The FCI system for large-scale and effi cient procurement, storage and transportation of grain; and (iii) a Public Distribution System (PDS) for the transfer of subsidised grain to the poor. Operating on two presumptions, both wrong, the high level committee, on long term grain policy, has made recommendations which appear in favour of the poor in the short term but which are against them in the long run. The fi rst presumption is that the surplus stocks in the FCI godowns are an indicator of excess procurement. The second is that the food subsidy, standing at one percent GDP, must be reduced to 0.2 percent. Accordingly, it recommends that procurement be discouraged by cutting minimum support price (MSP) to farmers thereby reducing procurement

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |61 CHAPTER ONE by 12 million tons. Then it suggests that there be a uniform PDS price virtually at acquisition cost, thus allowing the BPL prices to shoot upwards. The poor indeed have reason to be very alarmed. Food for work Procurement every year is 40 MTs. Offtake (excluding food for work) is 30 MTs. Assuming that the food for work programme will remain at their present low levels, the committee concludes that procurement must be reduced. This is a fatal error. Food for work programme, during British rule, was governed by the Famine Codes. These provided an extensive code of conduct for ofﬁ cials for the recognition of the onset of famine, the immediate starting of FFW programmes available to all irrespective of income and the payment of subsistence amounts to those who cannot work. Studies show that the British were able to control deaths by starvation by the effective implementation of these Codes. The governments today, in contrast, appear to be worse than the British were. Over time, these Codes came to be disregarded. As is usual in every Red Fort address to the nation, Prime Ministers began to announce schemes. The Employment Assurance Scheme (EAY) promised 100 days of FFW in a year to all. Prime Minister Vajpayee then announced a new Sam- poorna Grameen Rozgar Yojana (SGRY). Everyone assumed it was an improvement on EAY. With the facts came the shock. It would provide an average of 10 days employment ! Rs. 5000 crores and 5MT grain was all that the government could spare. Chandrababu Naidu demonstrated that 5 MTs was a pitiable amount for the country when he managed to grab 3 MTs for Andhra alone. Extrapolating from this, a genuine FFW implemented nationwide can easily absorb a minimum of 20 MTs more. The piling up of stocks is, therefore, not because procurement is too high but because there is a deliberate decision not to feed the poor. Once the decision is taken − for a massive FFW programme − the gap − between procurement and disbursement − will disappear. Such a programme will reduce hunger, provide employment and improve rural infrastructure. As the grain component of SGRY rises from 5 MTs to say 20 MTs, so too will the cash component. But this can be kept in check by enforcing the labour/ capital ratio on public works to 70/ 30 and by paying almost the entire wage in grain. Additional funds could be raised by the states by the imposition of a levy as Maharashtra has done in the case of the Employment Guarantee Act. All it needs is the will to act. Sabotage PDS was sabotaged in four ways: (i ) by increasing the APL and BPL prices to such an extent that the APL offtake collapses and the BPL offtake declines, (ii) by relaxing fair average quality norms so that people are disgusted with the grain they receive; (iii) by rendering uneconomical the running of ration shops save by the black marketeering in grain; (iv) and ﬁ nally, by not informing the public of the marginal APL price reduction. According to M. Swaminathan, when targeting was introduced in India in 1997 the experiences of Mexico, Zambia, Jamaica, Tunisia and Sri Lanka were well known. The targeted food stamps in Mexico were aimed at cutting the food subsidy and led to an 80 percent decline of those receiving

|62 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD subsidised food. Sri Lanka’s effective universal PDS was converted to one based on income in order to pander to the IMF direction to cut food subsidies. As a result, there was a 50 percent fall in participating households and a signifi cant number of low income groups were excluded from the food stamps program. Subsidy The heart of the matter is money. India’s food subsidy − at one percent GDP − is not high by international standards. Moreover, 66 percent of this is worthless as it is storage cost. The hidden agenda of the committee is to reduce this food subsidy to 0.2 percent i.e., to virtually do away with the subsidy for the poor. To disguise this − with an offer of price index linked coupons for the poor and cash transfers to the state in lieu of price subsidies − is laughable. The state governments − that cannot pay the salary of their employees − will put this cash into the general account. Coupons have failed worldwide. In India, counterfeiting will be an additional problem. India must consciously dedicate a part of its GDP towards subsidising food for the poor. The subsidy must go up not down. PDS prices In recommending that BPL and APL prices be increased close to acquisition cost (which is today higher than the APL level) the committee goes over the top. Surely it must understand that the current BPL/ APL rates are too high for the poor to purchase grain. The BPL rate ought to be fi xed at the Antyodya rate level and the APL rate brought down to the BPL level for there to be any signifi cant increase in offtake. Starvation is caused by high PDS prices. Self-sufficiency A pro-poor policy would entail a reasonable MSP, additional procurement and the distribution of grain at low prices. Such a policy would be essential to maintain cereal self-suffi ciency. The devious policies of rich countries and the highly volatile nature of International cereal prices make the import of cereals a very dangerous policy. Surplus production of a few advanced countries accounts for four-fi fth of the global trade in cereals. The US farm subsidy is expected to be about 50 billion dollars a year. Once the US grain exporters, on the basis of highly subsidised grain exports, get a monopoly in India, prices will be pushed up leading to a grave crisis.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |63 A FALSE PRIDE

hat sense of importance did it give the government to reject offhand the offer by the European States to provide grants, materials and equipment for the victims of Tsunami Win India, only to thereafter approach the World Bank for a loan albeit with low interest? What drove the Government of India to provide relief by sea and by air to the Tsunami victims in Sri Lanka, when the victims in Andaman & Nicobar Islands are, till date, without housing and clean drinking water? For how long can the central government hide the suffering of the Tsunami survivors in India from the rest of the world? There is something fundamentally wrong with the way we deal with relief to the victims of disasters and their subsequent rehabilitation. In the aftermath of the Latur earthquake, in Maharash- tra, money poured in from all over the world. The state government forced employees to make a contribution. Notwithstanding all this, the situation, on the ground, remained pathetic. A closer enquiry, and a public interest petition done in the Bombay High Court at Aurangabad, indicated that part of the funds, including the 801 crores of World Bank money meant for rehabilitation of the quake survivors, was diverted elsewhere perhaps for elections expenses. It was only Justice BN Deshmukh’s no nonsense approach that forced the government to bring the money back for the building of houses. Ten years after the earthquake and after elaborate monitoring, fi rst by the High Court and later by the Supreme Court, were the houses ultimately built for everyone. The Gujarat earthquake saw a similar situation arise. Here the Muslims and the Dalits were discriminated against in the re-building effort. The heroic efforts of NGOs, and an ombudsman appointed by the High Court, brought some relief. A disquieting feature of all disasters is the reluctance of the administration to publicly acknowledge the specifi c details of the funds coming in and the identity of the donors. Leading newspapers in the country, raising money, invariably list their donors. But the government is loath to do this. The reasons for this are to be found in greed and a cruel attitude towards the poor. A careful social audit, of how the millions of dollors of donations were actually used, may yield interesting results. But nothing angers the senior administration more than a request from the public that government publish the list of donors. I suspect that money, meant for the victims of disaster, is routinely diverted for the payment of the salaries of government servants and other sundry expenses. In the case of the Tsunami, to this day, despite repeated requests, government has refused to put the list of donors on its website. General fi gures, of course, are routinely reported in the newspapers. Besides being unreliable they do not permit an individual donor to verify whether his/her contribution has been acknowledged. The strategy of the government has always been to hide, obfuscate and confuse fi nancial details by leaking banal details of the total quantum received.

|64 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

When the Tsunami broke in the Andaman & Nicobar Islands on December 26, 2004, very few people from the mainland reached these remote areas. There was total confusion. Some policemen, and government offi cials, abandoned their posts and the people. Others made heroic efforts. A member of the Human Rights Law Network managed to land up on Kamota in the Nancowry Islands. The people had been deserted by the administration. Were it not for the Air Force many more lives would have been lost. When Combat Law, a bimonthly on human rights and law, covered the betrayal of the Tsunami survivors in its September 2005 issue, the Joint Editor, Mihir Desai, characterised the Govern- ment of India’s response as “a disastrous response to disasters.” Instead of relying upon the skills and contributions of the local population, the administration in the Islands went about their business in a typically colonial fashion. The people asked for tools such as knives and axes and saws so that they could use the wood, of the fallen trees, to reconstruct their homes, but they were denied this. Instead, someone highly placed at Delhi took the decision to send hundreds of thousands of tin sheets, long distances across the sea, so that the people of the Andamans, who usually reside in wood houses or machaans, would be forced to live in cattle shed type structures which turn into ovens during the day and are uninhabitable during the monsoons because of the mud fl ooring. They live in these structures to this day. The Government of India promised the people repeatedly that they would be given permanent housing but, as we publish this report, apart from the model houses constructed for display, not a single house has been built for the 10,000 Tsunami survivors! Instead of allowing the people to construct traditional houses, made of wood, a prefabricated model of tubular steel is being imported from the mainland obviously for the benefi t of contractors and bureaucrats. The people have no understanding of how this structure is to be maintained or repaired. It is frightening to think of what these beautiful islands will look like ten years from now with 10,000 prefabricated steel structures rusting and in disrepair. Then the people asked for boats and nets so that they could resume fi shing and get back to living as normal a life as possible. Their jetties had to be repaired so that the boats could dock. Cold storages had to be made so that fi shing could become a commercially viable proposition. Two years after the Tsunami, in many of the islands, the boats have not yet come. Nets are yet to be distributed. The jetties remain destroyed. The cold storages do not exist. There is fi sh in the sea but not for the Tribals of the islands. The other source of traditional livelihood is the coconut plantations, but these have been destroyed. The seedlings planted will take seven years to yield fruit. In the meanwhile there is no work. This is why the administration provides free rations to the Tsunami affected. When we met with the people we found that kerosene had been discontinued. The supply of free rations was irregular in many areas. And then came the announcement that free rations were to be discontinued. The intervention of the High Court saw better sense prevail and the stand of the administration now is that free rations will continue for sometime. Unless alternative livelihood options emerge, free rations cannot, and should not be, discontinued. For a country, which considers itself a super power, safe drinking water, on the islands, is not available in most places. People are still drinking from stagnant water pools and from streams. They suffer from all kinds of diseases as a result. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |65 CHAPTER ONE

This is a report to the nation of the suffering of the people of the Andaman & Nicobar Islands two years after the Tsunami struck and of their decline from a proud race of independent Tribals who had never cared for the government to a people dependent on the administration for their survival. This has been achieved by following policies and practices that have reduced the people to mere passive onlookers. This was not accidental. If corruption is to exist and grow, activities of the government must operate with very little participation of the people and with very minimalist information dissemination. Perhaps it is the remoteness of the islands that allows for such a colonial administration to fl ourish. The newspapers, from Port Blair, give details almost on a daily basis of cases of corruption. Nothing happens. The High Court, functioning at Port Blair, is manned by Justices who come on a rotation basis from Kolkata. They get to hear the administration’s point of view but not of the people as there are few NGOs who interact with the judges to give them the other side of the story. As a result, judicial intervention, through PILs, is hardly known. The Lok Adalats, operating at Port Blair, are ineffective principally because it requires persons to travel long distances at considerable cost and come to Port Blair, instead of holding the Lok Adalat in the far-fl ung islands. All in all, there is an iron curtain between the islands and the mainland. Unless this autonomy of the administration − to loot at will and to treat Tribal people as basically inferior − is fought tooth and nail. In the midst of all this confusion it appears that the minister for tourism is pushing for these pristine islands to be opened up for “high value” tourism. Deals are being entered into with chains of fi ve-star hotels. Bureaucrats support this initiative with talk of the Tribals being backward. They, like our colonial masters, see their role as bringing primitive people into the “mainstream.” Globalisation has now reached the Southern most tip of India.

|66 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation FOOD SECURITY AND LAW: LOWERING DEPTHS, GROWING PANGS

nstead of addressing the infi nite nightmare of poverty, the Indian government appears to be doing away with the poor altogether by using statistical jugglery and artifi cially lowering the Ipoverty line. The UNICF report, concluding that child malnutrition in India is comparable to Sub-Saharan Africa, comes as no surprise to those working on food security in India. It may offend the sensibilities of those for whom “India shining” was an attractive though unrealistic projection. However, there is nothing on the horizon except gloom for the poor. When the People’s Union for Civil Liberties (PUCL) case started in 2001, starvation deaths were being reported throughout the country. The intervention of the Supreme Court enthused many and put the issue of food security centrestage. I have no doubt that, had the Supreme Court not intervened, the thrust of globalisation, privatisation and structural adjustments would have resulted in the closure of the Public Distribution System (PDS) and the curtailment of the Mid- day Meal Scheme and the Integrated Child Development Services (ICDS) Scheme. When Chief Justice BN Kirpal was on the verge of retirement, he asked for an assessment of what had been achieved and I said that we may not have gone ahead for all these years but the Court had certainly stemmed the rot. Over the years, we saw the National Democratic Alliance (NDA) being replaced by the United Progressive Alliance (UPA). However, the attitude towards hunger and starvation has not change. The principal trump card of PUCL, when it began the litigation that 60 million tons of grain lay in the godowns while people went without food, was neutralised by the government exporting 25 million tons of grain over a period of three years, instead of using the grain to feed the poor in India. The NDA Government, as also the UPA Government, exported this grain, at BPL prices to Eastern Europe, some of it as cattlefeed. Statistical jugglery Anxious to show that globalisation was working, not only for the rich but also for the poor, the World Bank organised a seminar of selected economists. All of them wrote papers claiming that poverty, in India, had come down from 36 to 22 percent. This was published in a special report of the Economic and Political Weekly. This conclusion was thereafter widely criticised. The most trenchant criticism came from Prof Utsa Patnaik of Jawaharlal Nehru University (JNU) in her basis of the Nation Sample Survey (NSS) data on calorie intake for 1999-2000, Prof Patnaik found that 70 percent of the Indian population was at or below the poverty line, fi xed by the Planning Commission in 1979, at 2,400 k calories per person per day. This was a shocking

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |67 CHAPTER ONE condemnation of the manner in which India was developing. She also calculated that an average family of fi ve was consuming at least 200 kg of grain less in a year than 50 years ago. Foodgrains were available but the poor did not have the money to purchase them. The debate over the extent of poverty in India made us look at the alternative Planning Com- mission poverty line in terms of cash. That made interesting reading. The latest fi gures − for 2000-1 − were Rs. 11 per person per day in the rural areas and Rs. 17 in Delhi. A clerk, in any offi ce of Delhi, would spend that amount of money travelling to and from work by bus! The international poverty line is two dollars a day. Yet, in India, a country which swears by globalisation, the poverty line remains at 40 cents a day. Thus, by the statistical jugglery of artifi cially lowering the poverty line, India hopes to do away with poor people altogether! The Supreme Court intervened on the ICDS holding the central government accountable for the implementation of its own scheme requiring an anganwadi centre for every 1,000 population. Against the12 lakh anganwadi centres needed the central government sanctioned money only for six lakh centres. Even these were not functioning in many areas. Though the court directed the government to implement its scheme fully, the fi nance minister made no allocation in the recent budget. Globalisation’s mantra The UN Special Rapporteur on the Right to Food, Jean Ziegler, visited India in August 2005 and made his report to the UN. He found that “levels of malnutrition and poverty remain very high and food insecurity has increased since the 1990s.” He found “one of the highest levels of child malnutrition in the world, higher than most countries in Sub-Saharan Africa.” He calculated that 80 percent of the Indian population was living on less than two dollars per day. He saw signs of increased concentration in land ownership and increased landlessness. He reported over 250 cases of starvation deaths from many parts of India. He found hunger rampant among the Dalits and Tribals. He personally witnessed casteism and untouchability in villages of Orissa. He concluded that “India was not currently on track to achieve the goals set in relation to malnutrition and under nourishment” in the UN’s Millennium Development Goals (MDGs). Globalisation has one mantra: subsidies are bad. However, without massive food subsidies, the poor cannot purchase grains at all. To tackle the spectre of starving India, the government needs to push up its fi nancial commitments from one to two percent GDP. Only then can we hope for any change.

|68 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POVERTY LINE EXCLUDES MANY HUNGRY PERSONS

he public interest writ petition − ﬁ led in the Supreme Court of India, People’s Union for Civil Liberties (PUCL) vs Union of India − was inspired by a visit to the villages surround- Ting Jaipur city in Rajasthan in 2001 where hunger and starvation was rampant. Mere miles away were the godowns of the Food Corporation of India (FCI) – full of grain, some of it rotting and a feast for rats. At that time 60 million tones of grain were lying in the godowns in the country. This is the spectre of starving India. Public Distribution System In 1964, the FCI was set up by the government as the sole central agency for the procurement, storage, transportation and distribution of wheat, rice, sugar, edible oils, kerosene and coal. The drought periods − of 1965 and 1972 − provided a strong impetus for the expansion of the PDS. Between 1978 and 1991, foodgrain distribution, through PDS, peaked at 21 million tones. Between 1991 and 1994, under World Bank pressure, the Government of India doubled the PDS prices for essential commodities. The poor were priced out of the system. Sales dropped. Stocks built up. Grains piled up in godowns while the poor went hungry. In 1997, targeting was introduced and the PDS transited from a universal system to one basically oriented towards what was called the Below Poverty Line (BPL) families. They constituted about 40 percent of the population. Between 1998 and 2001 the Above Poverty Line (APL) prices increased 85 for wheat and 61 percent for rice and BPL prices were increased by 66 percent and 62 percent respectively. Between 1991 and 1998, there was a widespread decline in per capita offtake. In some of the most populous states such as Uttar Pradesh and Bihar, about 98 percent of the rural population did not purchase any grain from the PDS in 1987. The PDS system was clearly not serving the vast majority of the country’s population and there was a near total collapse in many of the Northren states. Then in 2006, in a cruel and unprecedented move, the cabinet decided to reduce the PDS outlay by over 4524 crores by increasing prices and cutting quota, at a time when a family is entitled to only 35 kg per month as compared to a family need of 60 kg. This has been done on the basis of a World Bank sponsored dubious analysis of National Sample Survey Organisation data purporting to show that poverty in India had reduced from 36 percent to 26 percent of the population. The conclusion drawn was that globalisation, privatisation and structural adjustment was indeed working not only for the rich but also the poor. Several economists joined the bandwagon of the World Bank and published papers to this effect only to be met by a barrage of criticism.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |69 CHAPTER ONE

Matters came to a head when the number of persons eligible to get subsidised rations under the Below Poverty Line (BPL) quota were sought to be drastically reduced by the central government in 2002. In Rajasthan alone, 10 lakh families were to be removed from BPL list. PUCL moved the Supreme Court that stayed the decision. With the largest population of malnourished people in the world and with half the nation’s women and children malnourished, ‘business as usual’ will not do. Drastic steps are called for. The heart of the matter is money. India’s food subsidy at one percent GDP is not high by international standards. India must consciously dedicate a part of its GDP towards subsidising food for the poor. The subsidy must go up not down. In the present extreme situation two percent GDP is not excessive. Jamaica in the 70s and Tunisia in the 80s had these subsidy levels. Once upon a time, Sri Lanka too had an effective universal system of heavily subsidised food. Encouraged by the IMF, government began targeting in 1972 and shifted to a fraudulent food stamp programme in 1979. The poor were excluded. Similar changes were made in Mexico in the 80s and there was a fall of 80 percent in the number of households receiving subsidised food between 1983 and 1987. In Jamaica, where upto 1984 price subsidies were in place for food, these were eliminated and in 1988 it was found that 53 percent of the poorest households were not receiving food stamps. Poverty Line The poverty line was fi xed in 1979 by the Planning Commission at Rs. 49 per person per month corresponding to an intake of 2,400 k calories per person per day. In 2001, the Planning Com- mission released its updated poverty line. In the era of globalisation where trade and business standards are sought to be universalised the poverty line of the Planning Commission made interesting reading. In the capital city for example, the poverty line stands at Rs. 511 per person per month or approximately Rs. 17 per day. A domestic servant or an unskilled worker earning Rs. 18 would be ineligible to get a BPL card! In Delhi, travel to work alone would normally cost an employee that amount. In the rural areas it is Rs. 11. The old international Poverty Line is $ 1 per person per day or in Indian terms approximately Rs. 1400 per month. It is more common to use the revised International Poverty Line standard of $ 2 per day. And yet the Indian government which otherwise swears by globalisation still uses a standard of $ 1/3 per person per day! By this statistical jugglery government boasts to the international community that liberal reforms have worked and poverty has been reduced. Then Prof Utsa Patnaik of JNU published a remarkable paper titled “The Republic of Hunger”1 where, on the basis of the National Sample Survey data 1999 – 2000, found 70 percent of the Indian population at or below the poverty line of 2,400 k calories per person per day. Going by this standard of food intake over 700 million people in India are poor and consume less than the minimum! She found that in the last decade the annual absorption of foodgrains per head had come down from 177 kg to 155 kg, levels last seen during World War II and lowering the nutritional status of Indians to that of Sub - Saharan Africa! She concludes that though foodgrains are available people are too poor to purchase these grains at the prices they are available. Hardly 10 1 Public Lecture on the occasion of the 50th Birthday of Safdar Hashmi, organised by SAHMAT (Safdar Hashmi Memorial Trust) on April 10, 2004, New Delhi. |70 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD million tons were sold through PDS in 2000 as compared to 20 million tons in 1991. Madhura Swaminathan, in her recent publication “Weakening Welfare” – the Pubic Distribution of Food in India, while studying the same data found that the level of 2149 calories per head in 1999-2000 in India was substantially lower than China or Brazil’s level of 2757 calories and 2797 calories in 1993. It was also lower than Tanzania or Kenya’s level of 1980. A commonly used indicator of under nourishment is the Body Mass Index (BMI). For this ratio of weight (kg) to the square of the height (m), 18.5 is normal. Using this indicator, Indian research- ers have found about half the population chronically defi cient in 1991-1992. Of these, 53 percent of children were found to be undernourished and 21 percent severely undernourished. The original standard for the defi nition of the poor was thrice the food expenditure as it was shown that poor families spend one-third of their expenditure on food. Any household that spends more than one-third of its income on food is considered poor in the United States and eligible for food stamps. If this standard were used in India, 95 percent of all households would be considered poor. If one uses the China standard of a foodshare of 60 percent, then 80 percent of the rural population and 60 percent of the urban population would be considered poor. Thus in India, at most the top 20 percent of the population can be excluded from systems of food security.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |71 RIGHT TO FOOD

n a bold decision, having far reaching consequences, a three-judge Bench of the Supreme Court, in its case of Union of India vs Association For Democratic Reforms, has directed the IElection Commission to require from every candidate, seeking election to Parliament or the state legislature, a declaration containing inter alia a disclosure of all the assets of the candidates, their spouses and dependents. Relying on a Constitutional Bench decision − in Mohinder Singh Gill vs CEC (1978.1.SCC.405) − the Court concluded that the voter does a social audit of the candidate and for such an audit the voter must be well informed. In Common Cause vs Union of India [(1996.(2).SCC.752)] the Apex Court found “the political parties in their quest for power spend more then one thousand crore of rupees on the general election (Parliament alone), yet nobody accounts for the bulk of the money so spent and there is no accountability anywhere. Nobody discloses the source of the money. There are no proper accounts and no audit. From where does the money come nobody knows. In a democracy where rule of law prevails, this type of naked display of black money, by violating the mandatory provisions of law, cannot be permitted.” The Court also held that directions be issued to maintain the “purity of elections” and “bring transparency.” In State of UP vs Raj Naraian (1975. 4.SCC.428), the Supreme Court held “the people have a right to know everything that is done in a public way by their public functionaries.” In Ramesh Thapper vs State of Madras (1950.SCR.594), it was held that the Right to Information was important because “it assists in the discovery of truth, it strengthens the capacity of the individual in participating in decision making and it establishes a reasonable balance between stability and social change.” The All India Service (Conduct) Rules, 1968 require disclosure of the assets of the government servant, her/his spouse and dependent children. There was an immediate, strident and hostile reaction from politicians of all the political parties. For the ﬁ rst time, all politicians stood united. They were opposed not so much to the direction − regarding disclosure of the criminal antecedents of the candidate − as to the direction pertaining to the declaration of assets. And for obvious reasons too! The BJP leader, Arun Jaitley, asked on Star News whether he agreed with the public’s perception that law makers had become law breakers and were not likely to enact legislation in respect of disclosure of assets, the former law minister, replied angrily that this was a “cynical view.” He’s right. The people are cynical about parliamentarians enacting any legislation to curb corruption.

|72 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD

The same provision is found in the Restatement of Values of Judicial life (Code of Conduct ) unanimously adopted by the conferences of Chief Justices in New Delhi in December 2000. It reads: “Every Judge should make a declaration of his/her assets in the form of real estate or investments (held in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming ofﬁ ce, and in case of sitting judges within a reasonable time of adoption of the resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the CJ of the court,” the resolution said, and added, that “the CJ should make a similar declaration for the purpose of the record.” The time has come for the Judiciary to take a stand on issues such as this where public opinion is ﬁ rmly on their side. The government proposes to push through a shameful Statute, which will emasculate the Supreme Court decision. The aggressive and confrontational manner, in which the law is being made, shows how deep the roots of corruption are in political life and how threatened these politicians are. There has been an alarming decline in the standards of Parliament over the last decade. Its primary function, legislating, has been delegated to small groups that draft and introduce harmful legislations that are passed often without parliamentarians knowing what Statute it is they are voting for. Parliament’s debate − on Statutes − rarely takes place in any meaningful manner. Members of Parliament, their legislative function abdicated, routinely interfere in Executive work blurring the traditional separation of powers. Given this fall, the time has come to reassert the principle of constitutional supremacy. Parlia- ment is not supreme. It is the Constitution which governs this nation. Perhaps this is as good a case as any to test this principle. Notwithstanding the proposed retrograde legislation, the direction of the Supreme Court, regarding the disclosure of assets, will prevail.

–Combat Law August-September 2002

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |73 UN RAPPORTEUR ON THE RIGHT TO FOOD SLAMS INDIA

he UN Special Rapporteur on the Right to Food, Jean Ziegler, presented his report on the extent of chronic hunger and malnutrition in India before the UN Human Rights Council in TGeneva on Friday, September 22, 2005. The report highlights a number of grave violations of the Right to Food and faults the government for the inadequate governance in protecting the nation from starvation deaths and other symptoms of food insecurity. The Government of India will be forced to respond to the report in the presence of representatives from all States. Mr Ziegler, a highly regarded academic and leader of the anti-economic globalisation movement, reports on the state of food security in a number of countries on behalf of the UN. On his offi cial mission to India, from August 20 to September 2, 2005, he met with Union, state and district offi cials in Delhi, Madhya Pradesh and Orissa. He also met civil society organisations working on Right to Food issues; international and national NGOs and hunger affected communities in rural areas and urban slums. Mr Zeigler opens his report by giving credit to the Indian State for having conquered the threat of large-scale famines and for attaining self-suffi ciency in basic food production. However, he repeatedly illustrates how household-level food security has yet to be achieved. There are signs that hunger and food insecurity have been on the increase since the second half of the 1990s. Nearly half of the country’s children suffer from moderate or severe malnutrition, with 47 percent of children underweight and 46 percent stunted in their growth. This is one of the highest levels of child malnutrition in the world, higher than most countries in poverty- stricken Sub-Saharan Africa. Furthermore, the Special Rapporteur expressed alarm by the fall of foodgrain availability to 152 kg per capita, 23 kg less than in the 1990s, and by the decline in calorie consumption. Other signs of food insecurity include a drop in agricultural wages, declining food prices and vast unemployment. Land ownership was observed as a major factor. Increasing concentration of land ownership, throughout the 1990s, has left an increasing number of households landless and dependent on casual agricultural labour (45 percent of households). He noted that at least 60,000 workers have lost their jobs as the international price of tea has fallen and millions of others face wage cuts, insecure contracts and rising malnutrition. ActionAid, an international NGO, reported that more than 240 workers died from starvation and suicide between March 2002 and February 2003 in just four tea gardens in West Bengal. Scheduled Castes and tribes are disproportionately affected by food insecurity and displacement

|74 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO FOOD due to discrimination and lack of negotiating power. NGOs and academics estimate that dam projects alone have displaced up to 33 million people who have lost their lands and livelihoods. The report points out that rehabilitation and resettlement of displaced peoples, under the “land for land” principle, is rarely honoured. Discriminatory social, legal and economic factors also force women and children into positions of increased vulnerability to poverty and chronic hunger. For example, women are not permitted to inherit formal title to land, which is increasingly problematic as the number of women headed rural houses rises. Mr Zeigler blamed the government for allowing private companies to get away with crime with almost complete immunity. Amongst other examples, he mentions reports of child labour on farms contracted to transnational corporations, such as cottonseed production in Andhra Pradesh, where young girls have been employed, instead of men, to reduce the cost of labour. In urban areas, food insecure households concentrate in the informal economic sector as well as among vulnerable groups such as those of migrants, refugees, homeless, the displaced, informal slum dwellers and street children. Urbanisation is exploding with massive infl ux of rural dwellers in search of a higher income. Currently, nearly a third of the population resides in Indian cities. Uneven development is also cited as a major factor contributing to food insecurity in India. While middle and upper classes, in urban centres, have benefi ted from the move towards a more market-oriented economy, rural dwellers have been given the shorter end of the stick. Farmers, and their families, are unable to earn a living due to capital-intensive commercial farming, falling wages, increasing landlessness and lack of alternative livelihood options. The spate of farmer suicides, during recent years, exposes the indubitable depth of rural poverty even in historically wealthy states such as Punjab. Following the increased coverage of starvation deaths in 2000, the People’s Union for Civil Liber- ties fi led a landmark Public Interest Litigation against the government in the Supreme Court in 2001. The Court ordered full implementation of all the food-based schemes across India, marking a historic advance in the justiciability of the Right to Food as a human right. The government is required to do the most within its power to ensure food security. However, decreased spending on rural development proves otherwise. Investment, in rural development, has fallen from 14.5 percent of GDP before 1990 to less than six percent of GDP even though rural development is critical to national food security. Instead of using the Public Distribution System, the world’s largest food-based safety net, to respond to increasing hunger, the State has tried to cut spending by changing the PDS from a universal system to a targeted system in 1997. Millions of families, in need of food aid, continue to suffer because of the “pervasive corruption” that plagues the PDS. The Special Rapporteur found problems of overcharging, irregular opening hours of fair price shops, denial of ration cards to the poorest, etc. Mr Zeigler cites the shift − from a universal to a targeted system − as being the main culprit behind persistent hunger. To make matters worse, the universal system was more cost-effi cient because, after 1997, more money was spent on storage costs whilst fewer households received subsidised grains. To make matters worse, underreporting of deaths, or misrepresentation of

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |75 CHAPTER ONE actual cause of death to downplay the number of starvation deaths, continues on a large-scale. In sum, the Special Rapporteur’s report highlights the extremity of food insecurity and extent of chronic hunger in India. It welcomes the work of the Supreme Court in advancing the justiciability of the Right to Food, but charges that the State has been irresponsible by not protecting this basic human right. The report calls attention to the scandalous corruption that pervades the distribution of food-based aid and other economic rehabilitation schemes and argues that greater liberalisation of the economy should not be pursued without extending greater protection for the Indian agricultural sector.

–With input from Manmeet Bindra

|76 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation BOOK REVIEW SHYING AWAY FROM REAL ISSUES

aving never read anything of, or by, Dr MS Swaminathan, I opened this book, “Life and Work of Swaminathan: Towards a Hunger Free World,”1 with interest. I thought the cover Hpage − showing Swaminathan in an elegant Nehru suit in the middle of a fi eld of waist high crops − looked rather self-promoting and inappropriate for a book on hunger. As I began reading I realised that the cover page set the tone for the whole book because page after page of self-adulation followed. Dr Swaminathan was described as “distinguished,” a “living legend,” a “scientifi c genius,” a “great writer,” a “philosopher” and a ”remarkable human being.” An obscure UN administrator is quoted as saying “no fi gure in the second half of the 20th century has done more than MS Swaminathan to improve the conditions of life of the world’s poor.” Being active in the Right to Food Campaign, I skipped the superlatives to see what this remarkable man had to say about eradicating hunger. I looked for a serious reference to the hundreds of starvation deaths taking place every year. I found none. I searched for an analysis of how the Public Distribution System (PDS) – one of the largest in the world – had been sabotaged over time by targeting, price increase and government sponsored corruption. I found none. I scrutinised page after page of monotonous, outdated and repetitive speeches and articles to see if this great thinker had dealt with the debate over the poverty line. While offi cials claim poverty has reduced, Prof Utsa Patnaik, analysing the latest NSS data, found 70 percent of the population consuming 2400 k calories per person per day or less, a poverty line set in 1979. I found no analysis – apart from a dull reproduction of the usual data on malnutrition – of the fact that on an average a family consumed 200 kg less per year in 2002 as compared to 40 years ago. That’s when I realised that this book had nothing to do with moving “towards a hunger free world.” Had the book been only about the man, I would take no issue because he is undoubtedly a giant among agricultural scientists. What then is the book all about? It presents Dr Swaminathan’s technicist view of agriculture and what needs to be done to push up production without particularly caring about what happens to the poor in this process. Here too he has a narrow view, which glorifi es technology and avoids critical issues such as the consolidation of land, contract farming, rural indebtedness, the decline in agricultural investments and large-scale displacement from land. Dr Swaminathan is a plant geneticist pure and simple. He speaks glowingly of the MNCs of Europe and America “who have made major investments in technologies to produce new plant

1 “Life and Work of Swaminathan: Towards a Hunger Free World” is compiled, edited and introduced by Anwar Dil KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |77 CHAPTER ONE varieties for large scale commercial agriculture.” He is an ardent supporter of the GATT agreement on agriculture when most NGOs want agriculture out of the WTO. He stands for GM foods at a time when the civilised world is moving towards organic farming. Even when token progressive statements are made they go wide off the mark. Dr Swaminathan, in a recent lecture (2002), identifi ed 32 million households in the category of ultra-poor (as against 140 million poor families identifi ed by Prof Patnaik). He deliberately uses the term “ultra- poor” which is a World Bank/IMF construct where the perspective is to get out of providing subsidised grain to the poor by focusing only on the ultra poor. Based on this low fi gure, he concludes that an “open-ended employment-cum-food security project may need at a maximum about 10 million tons of foodgrains per year.” By contrast, according to GOI today, the grain, required for the BPL families in the PDS system alone, is: 80 (million families) X 35 kg (per month) X 12 (months) = 34 million tons. In addition, millions of tons of subsidised grains are required for employment guarantee! Thus, instead of concluding that upwards of 40 million tons of subsidised grains are required for food security in the country, Swaminathan concludes that a maximum of 10 million tons are required! It is sad to see how far from reality one of India’s ‘most distinguished agriculturalist scientists’ has gone. Speaking generally, it has become fashionable these days for everyone − from Noble Laureates, to World Bank Presidents − to speak with feigned emotion of malnutrition. The language is sophisticated and politically loaded and it takes a bit of experience to see through the camoufl age. ”Free market” means “let the MNCs export food to India unhindered,” “corruption in PDS” translated means “close down the PDS,” “elite farmer lobby” means “reduce the Minimum Support Price,” “high cost of storage,” means “close down the FCI” and reference to the “ultra-poor” means “let’s only give subsidised grain to those on the brink of death.” And for the rest, either you buy (at market rates) or you die. That’s the message.

|78 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING TWO CHAPTER

1. The Right to Housing: The Indian Experience 2. And the Houses All Fell Down 3. Nowhere to Live - Urban Housing in India 4. Reflections on the Indian Experience In spite of the commitments in the NHH Policy and in the face of our international commitments, slum dwellers, who have lived in areas for years, have their homes demolished without notice or alternative accommodation and without any real public purpose. In stark contrast, the illegal constructions of the rich remain untouched. THE RIGHT TO HOUSING: THE INDIAN EXPERIENCE

n 2001, India had a population of 1.027 billion people, 285 million (28 percent) of which live in urban areas.1 The decadal growth rate of 1991-2001 was 21.35 percent with the urban growth Irate touching 31.13 percent.2 There are 400 million children in India, 60 million of which are under the age of six and live below the poverty line. There are 11 million street children, and the minimum estimates of child labour also stand at 11 million. Fifty percent of the city populations are in slums though they possess less than fi ve percent of land. In 2000, there was a housing shortage of 41 million units.3 Lets take a look at what is the situation of housing in the major Indian cities: Delhi The national capital city of Delhi, which has a population of close to 15 million, has seen wave after wave of brutal slum demolitions. About 35 percent of the city’s population resides in its over 1000 slum colonies. This population grows by the day as the rural poor (mainly from the Northren states) affected by drought, pour into the city. Migration has continued unabated from the time of Partition, which split the subcontinent into the sovereign nations of India and Pakistan, requiring mass migration and history’s largest population exchange. In 1957, the Delhi Development Act came into force, and in 1961 the Delhi Development Authority (DDA) was formed to provide adequate housing for the residents of Delhi. In 1962 the fi rst Delhi Master Plan was formulated, which allocated housing for what was called the economically weaker sections (EWS). The area set aside was inadequate for the simple reason that 70 percent of Delhi residents live in dwellings well below the minimum housing norms. Nevertheless, the government and the affl uent sections of the population have encroached upon even these areas. In 1974, the central government enacted the Urban Land Ceiling & Regulation Act, which purported to acquire in the public interest all land holdings above a particular ceiling at virtually no cost to the exchequer. The lands thus acquired were to be used for site and service schemes, wherein the poor were to pay a minimal amount of money in exchange for a small plot of land and basic services. Incremental housing was the norm by which the poor could fi rst build a tiny core structure and overtime expand. Some 30,000 acres of prime urban land in India’s cities

1 http://www.censusindia.net 2 United Nations, World Urbanisation Prospects: The 1999 Revision (2000) in Brocheroff M, An Urbanising World: Popula- tion Bulletin, Vol. 55(3), September 2000. 3 Vagale LR – (2000), Housing and Urban Development Authorities Laws in Bangalore, Housing Legislation in India. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |81 CHAPTER TWO thereafter became available virtually free of cost for housing the urban poor.4 Builders and others began to covet this property, and the Act was subjected to fi erce criticism in the media and was ultimately sabotaged by the builders’ lobby. From the land vested by the government, only 7,000 acres were taken possession of, and out of this only about 1,000 acres were actually developed for housing. Exploiting the loopholes in the Act, the land acquired was handed back to its original owners. The Government of India repealed the Act in 2000, making any possibility of housing the poor in urban areas impossible. The declaration of the Internal Emergency by the central government in 1975 came with a wave of evictions; 750,000 people had their homes demolished.5 Though some of them were relocated on the periphery of the city, the evictions along with other factors gave rise to grave discontent. The demolition of the slums, led very quickly to the downfall of the Congress party in the general election, but after a short break the demolitions continued irrespective of which party held power. The second Master Plan for Delhi was fi nalised sometime in 1986 and the third draft of the Master Plan was released in April 2006. This draft identifi es slum clusters as the single biggest challenge to making the city slum free. When the Commonwealth Games were agreed to be held at Delhi in 2010, the city saw its largest ever population displacement post-2000.6 There are no records available showing the number of homes demolished, but NGOs estimate that over 200,000 people were evicted. From the Ya- muna Pushta area, 150,000 people were brutally evicted in phases in order to construct parks and fountains. This population was overwhelmingly Muslim, giving rise to allegations that the demolitions were communally coloured. There were many complaints alleging that the police had set fi re to the huts while evicting families, and even the homes in which the disabled resided were demolished with equal ferocity. Notices of the eviction were rarely given and families were caught unawares while the men were at work. Sadly, the men returned to see their homes in ruins as their children sat atop the debris. Schools were razed, leaving children without any chance of continuing their education. There were reports that aged and infi rmed persons died inside their houses as the bulldozers crashed through. In most cases, relocations were not carried out. Families lost their identity cards in the demolition and fi res, and were thus unable to make the necessary applications for alternate sites. Muslims were told that they would not be given alternate accommodation unless their police verifi cation was complete, ostensibly because the government considered all Muslims to be potential citizens of Pakistan or Bangladesh and in any case, anti-national. Thousands of families were unable to get place at the relocated sites, which were located many miles away from the city. The relocated sites were essentially a refuse pile of human beings. Stagnant water became a breeding ground for mosquitoes. Toilets were not constructed, forcing people to defecate in the open. The tube-wells sunk for drinking water instead threw up brackish water that was not potable. Water then had to be supplied through tankers, which came to the colonies infrequently,

4 Geoffrey Payne, Urban Land Tenure and Property Rights in Developing Countries: A Review – Section III. National Policy issue – p – 12, Intermediate Technology Publications, London, 1997. 5 Farce in the Capital – Relocation of slums, EWI, January 2003, First report, Combat Law Publications. 6 Hindustan Times, Slums to be relocated, September 16, 2005. |82 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING leading to stampedes for water. The resettlement colonies were many miles away from the places of employment but bus services were not available. To make matters worse, the bus fares to and from work were so exorbitant that they negated the purpose of work itself. This, among other things, resulted in widespread unemployment. Children discontinued their education because of lack of schools. There were no hospitals in the area and the public health systems that existed were understaffed and without medicine. Open drains were fi lled with fi lth, while ration shops providing subsidised grain for those below the poverty line remained closed most of the time. Even these inhumane relocation sites became the subject of litigation. A petition was fi led in the High Court at Delhi challenging government’s decision to provide plots of public land for the evictees. This petition was fi led on the basis that slum dwellers being encroachers on public land had no right to be given any other public land by way of compensation. Reference was made to a short order of the Supreme Court in a slum demolition matter; wherein the Supreme Court observed that the slum dweller was akin to a pickpocket and that to relocate a slum dweller was like rewarding a pickpocket for his crime.7 In similar circumstances, demolitions were carried out at 53 working class colonies from 2000 onwards. Mumbai Mumbai has a population of about 15 million people, half of which lives in slums, occupying only eight percent of the city’s land. Formally, those who were listed in the 1976 census of slums were eligible to be covered by slum improvement schemes and additionally eligible for an alternative plot in case of evictions. This introduced the concept of a “cut-off date.” Later the electoral rolls of 1980 were adopted as the cut-off. This was then shifted to 1985, then to 1990, and later to 1995. In 2003, 86,000 families living in and around Sanjay Gandhi National Park were evicted despite being covered by the cut-off dates. This was carried out under the orders of the High Court, which took the extreme step of using helicopters and deploying retired military offi cers to evict the impoverished inhabitants.8 Along these lines several massive demolitions took place in Mumbai. Between November 2004 and February 2005, over 300,000 people were rendered homeless when over 80,000 homes were demolished, leaving more than 150,000 children homeless. Some 3,989 police personnel were used during the police operations,9 and hundreds of activists protesting the demolitions were arrested. As in Delhi, many schools were demolished in the Mumbai drive. Ten-year old Salma Banu said, “my parents were dragged and beaten by the police. My home was burnt including my books and all my belongings.” Twelve-year-old Imran lost his bicycle in the demolition, which his parents were able to buy for him only after saving for many years. His mother manages to eke out a living by stitching clothes. Fourteen-year-old Ibrahim said, “We cannot study because we don’t have a home. What will we eat if our parents lose their jobs?10”

7 Almitra H. Patel & others vs UOI & others (2000 2 SCC 679). 8 Sabastain P.A. – (2000), crushed homes, Lost Lives: The story of the demolitions in the Sanjay Gandhi National Park, IPHRC Mumbai. 9 Bulldozing Rights, A Report on the Forced Evictions & Housing Policies for the poor in Mumbai, June 2005. 10 Child rights meeting in Mandala on May 25, 2006, Maju Varghese, YUVA, Eviction Watch. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |83 CHAPTER TWO

At about the same time builders, industrialists and former senior bureaucrats formed an organisation called “Mumbai First,” which drafted its own development plan for Mumbai with the help of the multinational consulting company Mckinsey. Together with the World Bank, they envisaged the city absent of the poor in their “Vision Mumbai” plan.11 This elite citizens’ action group worked closely with the Maharashtra Government during the demolition. On January 2005 at a Non-Resident Indian (NRI) Conference in Mumbai, the Prime Minister of India assured the participants that Mumbai would be transformed into Shanghai within fi ve years. The World Bank’s murky role in the demolition was exposed by demonstrators. The Bank fi nancially supports the Mumbai Urban Transport Project, which required the forced eviction of 17,000 homes, 2,700 shops and hundreds of small industrial units.12 Hundreds of complaints poured in regarding the inadequate income restoration and resettlement arrangements. The resettlement sites were located in the most polluted land in all of Mumbai, located near the main Municipal dump. Several cavernous open drains passed through this area carrying the city’s waste including blood, excreta, animal carcasses butchered at a nearby abattoir, and radioactive wastewater from the nearby Bhabha Atomic Research Centre (BARC). Faced with the allegations of serious negligence in the resettlement, the World Bank temporarily suspended the project in 2005, re- suming its funding only after the demonstrations had died down. A survey of the evicted families conducted by the Tata Institute of Social Sciences (TISS) found that employment was lost by one-third of the concerned families. The ration cards required in order to obtain subsidised grain were not transferred to their new location, leaving the families hungry and without food. Women resorted to selling the remnants of their jewellery to meet household expenses, and in the relocated site there were no schools, employment opportunities, burial grounds or medical facilities.13 Chennai Tamil Nadu’s capital of Chennai, which has a population of seven million, similarly saw the repeated demolition of slums, notwithstanding a government policy mandating that evictions only be carried out for a public purpose, with due notice, and after a provision of alternative accommodation and basic amenities has been made. Major evictions took place due to the construction of a Mass Rapid Transits System in the 1980s. In 1994, large-scale evictions angered unorganised workers who took to the streets in large numbers to protest. Then came the evictions of families from the riverbanks, whom the government proposed to relocate 20 kilometers away.14 Then followed the evictions of those residing close to Marina Beach, who were relocated 20 kilometers away to a site with no drinking water, transportation, electricity, toilets or school facilities. After massive protests, the Marina Beach fi shing community was shifted, though wave after wave of demolitions followed. The people of Chennai opposed the setting up of fi ve 5-star hotels, foreign missions and new secretariat at Marina Beach.

11 McKinsey “Vision Mumbai”: Transforming Mumbai into a world class city, 2003. 12 MUTP, Inspection Panel Excerpt report, December 21, 2005. 13 An impact assessment of R&R implementation for the MUTP - TISS report. 14 TN state & governments in developing Rail facilities: A case Study of Chennai in India – T Anantha Rajan, V Shanmuga Sundaram, S Ponnu Swamy and K Kumar. |84 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING

The 2004, Tsunami hit Tamil Nadu destroying most of the houses of the poor along the coast. The government took advantage of this and prohibited families from reconstructing their houses on the shore, forbidden even before the Tsunami, by requiring that they move back 100 metres.15 The coastal land thus vacated was to be allotted to industries, resorts, hotels and other corporate projects. The World Bank and the Asian Development Bank acted quickly to exploit the situation by promoting fi shing industry projects over local fi shermen people. Private companies, factories, shrimp farms and sand mining companies began to move in, while Dalit communities who live on the seashore without any record of their rights to the land were not permitted to return.16 Thus the Tsunami paved the way for the privatisation and commercialisation of the coastal zones. In May 2005, a coastal yatra was organised by people’s organisations calling for a participatory restoration of livelihood and adequate provisions for housing. The Human Rights Law Network, a network of lawyers and social activists in the country, fi led a public interest petition in the Madras High Court and obtained a stay on the forced evictions of the fi shermen community. Nevertheless, strenuous attempts were still being made by the government to evict the seashore community. The Chennai Municipality simultaneously began the construction of one of the country’s largest projects for housing the economically weaker sections (EWS), but these projects have failed because the relocated sites were extremely distant from the city. Kolkata Formerly known as Calcutta, Kolkata is east India’s largest city with a population of 12 million. Evictions there have gone on relentlessly since the late 1970s. In 1996, the Kolkata Corpora- tion started “Operation Sunshine,” evicting thousands of hawkers from the city’s pavements. In 2001, twenty thousand people were displaced pursuant to an Asian Development Bank initiative. Kolkata’s NGOs set up a “people’s commission on eviction and displacement,” consisting of retired High Court Judges. In September 2002, the Commission enquired into the displacement and concluded, “the system is not only colonial; the Judicial System is downright pathetic. To say that it is designed for the rich is an understatement. The poor in this country have not the slightest chance of even approaching a court of justice, let alone pursue a case.”17 On December 10, 2002, while the world was observing International Human’s Day, the West Bengal Government evicted 4,000 people from Beliaghat in what is now known as the Tenth December carnage.18 In February 2003, 7,000 people from the scavenger community were evicted from Bellilious Park.19 A 3-year old died by starvation during that period. An Asian Human Rights Commission team appealed to the government to provide the families with alternate accommodation, but nothing was done. In 2005, twenty fi ve families were asked to vacate their homes due to the construction of

15 Shelter Rights in Chennai by Dr K Shanmugavelayutham, papers presentation on behalf of the Chennai Slum Dwellers Rights Movement, May 2005. 16 Memorandum to Chief Minister of Tamil Nadu, January 2005 (Annexure – IV). 17 Dasgupta Keya – (2002), Eviction in West Bengal – A report on the People’s Commission on Eviction and displacement, (2002) Kolkata. 18 The 10th December Carnage - Strategies to Combat Forced Evictions, 2003, Combat Law, P-23. 19 Memorandum on Bellilious Park, Kolkata Report, by Kirity Roy. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |85 CHAPTER TWO the Budge-Budge Trunk Road.20 The slum dwellers put up strong resistance and the eviction was temporarily postponed. The same year saw the proposed evictions of thousands of families due to an Asian Development Bank project aimed at constructing national and state highways with no plan for rehabilitating those displaced. Hyderabad Andra Pradesh’s capital of Hyderabad likewise saw a spate of demolitions. In the mid 1970s, progressive policies prevailed and the Hyderabad Urban Development Authority planned to integrate slum populations within the city itself. Land was distributed to the poor and housing loans were made available at affordable rates of interest. Successful upgradation of slums was carried out, but in the 1980s all these changed. A local NGO, “Campaign for Housing and Tenurial Rights,” accused the Authority of selling prime urban land to various business interest groups.21 Eviction replaced institutional upgradation as the norm. Groups of slum dwellers that approached the High Court in 1985 obtained one of their rare pro-poor orders. The High Court said, “so long as the land is not required for any compelling public purposes the petitioners shall not be dispossessed.”22 Particularly from late 1990s, thousands of families from all over Hyderabad had their homes bulldozed. The Asian Development Bank was the prime mover behind these demolitions. In the few instances in which alternative plots were provided, they were 20 kilometres away from the city. As a result of these demolitions, the city’s population of the pavement dwellers went up. In 2000, when the then US President Bill Clinton visited the city, thousands of pavement dwellers were herded into large trucks and dumped a hundred kilometres away. It took them several days to walk back. Ahmedabad Ahmedabad, the capital of the West Indian state of Gujarat, saw the demolition of slums go hand in hand with the ethnic cleansing of Muslims, though this was not always the case. The evictions of the 1950s and 1960s were replaced in the 1970s slum upgradation schemes, though this period of relative peace was short lived. The slum upgradation programme, initiated by the World Bank in 1984, collapsed due to the inertia of the Ahmedabad Municipal Corporation and the project was abandoned in 1992. By 2004, the World Bank, led by the Country Director Michael Carter, changed its perspective and evolved a policy to remove slum dwellers. The most vulnerable of these were Muslims. In the eviction connected with the Riverfront Devel- opment Project, 40,000 families were displaced, 80 percent of who were Muslim.23 In place of the demolished slums, commercial complexes, markets, hotels, motels, cinema houses, farmhous- es, water resorts, canals, showers, and fountains were planned. Grabbing riverside land from the poor was essential. From 2003 onwards, thousands of families had their homes bulldozed. Street vendors were systematically evicted. Again, in the few instances that alternative plots

20 India: New Eviction case in the name of road expansion, West Bengal (http://foodjustice.net/ha/mainfi le.pha/ha/marn- fi le.pha.). 21 Dr Anthoniraj Thumma, In Deep Waters…CHATRI publications, Dec 2000. 22 (WP. 17777/85, Andhra Pradesh High Court). 23 Grabbing Urban Poor Habitat – Sabarmati Riverfront Project, CL vol. 3 issue 3. |86 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING were provided, these were over 20 kilometres away. The Gujarat High Court proved to be one of the most sympathetic judicial bodies regarding the plight of the urban poor. In case after case the High Court ordered the rehabilitation of the evictees. This was contrary to the national trend where most of the High Courts and even the Supreme Court dismissed petition after petition seeking due notice and rehabilitation. Urban Renewal Programme Prompted by the World Bank, The Asian Development Bank and USAID, the Prime Minister of India announced the National Urban Renewal Mission Programme in December 2005. As soon at it was announced, it was met with unanimous contempt by human rights organisations throughout India, due to their belief that it was a well planned conspiracy to privatise basic amenities including water, allowing the rich, builders, contractors, multinational companies, etc., a free reign. A former Prime Minister of India denounced it as anti-poor and the Community Party of India (Marx- ists) also criticised the mission. The fi rst adverse aspect of the mission was a private-public partnership which had utterly failed to provide services and housing for the urban poor.24 The institutional experiment, and cross subsidy or land-sharing schemes benefi ted the rich, while the poor were squeezed into even smaller urban spaces causing a deterioration of their living standards. Institutional upgradadation was sabotaged everywhere. In a Northren Indian city – Indore – where DFID invested US $14 million on institutional upgradation in the Slum Networking Project, there was a proposal to scrap the infrastructure and settlement immediately after its completion in favour of a riverfront development project. Despite their failure at the ground level, institutional upgrade schemes received international acclaim and recognition as the most desirable global practices.25 The Slum Networking Project bagged the International Habitat Award in 1994 and the Agha Khan Award for architecture in 1997. In 2005, there was a renewed attempt to privatise urban water supply throughout the country. The Delhi Municipal Corporation proposed the Delhi Municipal Corporation Amendment Bill 2005 sponsored by USAID.26 Though its objective was “full cost recovery,” which in reality meant the deprivation of water to the abjectly poor; the orientation of government remained the deprivation of water to the poor and to drive them out of cities. Tentative studies done by NGOs indicate that the poor in slums paid more for their water than those living in middle and upper class colonies. All of this despite a commitment to the Common Minimum Programme from the United Progressive Alliance (UPA), which holds power at the Centre. The programme states, “the UPA Government commits itself to a comprehensive programme of urban renewal and to a massive expansion of social housing in towns and cities, paying particular attention to the needs of slum dwellers.”27

24 Urban Renewal Mission: Whose Agenda? People’s Democracy vol. xxix no. 49, December 4, 2005.). 25 Poverty & Vulnerability in Indore, Oxfam urban Poverty Research Report, August 1999. 26 George Deikun, Mission Director, USAID India – at the national media conclave “Globalising Indian cities: Partnership for change. 27 Page 12, CMP, May 2004. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |87 CHAPTER TWO

Supreme Court decisions on the Right to Housing In Shantistar Builders vs Narayan Khimalal Totame [(1990).I.SCC.520]: “The Right to Life would take within its sweep the Right to Food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal, it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home.” In Chameli Singh vs State of UP [(1996).2.SCC.549]: “In any organised society, right to live as a human being is not ensured by meeting only the animal need of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions, which inhibit his growth. All human rights are designed to achieve this object. Right to Life guaranteed in any civilised society implies the Right to Food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and the Convention or under the Constitution of India cannot be exercised without these basic human rights.” Shelter for human beings, therefore, is not the mere protection of their lives and limbs. It can be considered adequate only when one has the opportunity to grow physically, mentally, intellectually and spiritually. Therefore, the right to shelter includes adequate living space, safe and decent structures, clean and decent surroundings, sufﬁ cient light, pure air and water, electricity, sanitation and other civic amenities like roads, so as to have easy access to his daily avoca- tion. The right to shelter does not mean a mere right to a roof over one’s head but the right to all infrastructures necessary to enable one to live and develop as a human being. The right to shelter, when used as an essential requisite to the right to live, should be deemed a guaranteed Fundamental Right. As enjoined in the Directive Principles, the State is under the obligation to guarantee the right to shelter, of course subject to its economic constraints. In a democratic society, a member of the organised civic community should be entitled to permanent shelter so as to physically, mentally and intellectually equip oneself to improve his/her ability as a useful citizen as enjoined in the Fundamental Duties, in order to be an equal participant in democracy. The ultimate object of making possible an individual equipped with the right to dignity and equality of status is to enable one to develop oneself into a cultural being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of the right to equity, economic justice as well as Fundamental Rights to residence, dignity and life itself. In Ahmedabad Municipal Nagarpalika vs Nawab Khan Ghulab Khan [(1977).11.SCC.121]: “The Right to Life enshrined under Article 21 includes meaningful Right to Life and not merely animal existence. Right to Life would include right to live with human dignity. Right to Life has been assured as a basic human right under Article 21. Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the State, in its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status. It positively charges the state to distribute

|88 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING its largesse to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make life worth living with dignity of person and equality of status and to constantly improve excellence.” Though no person has the right to encroach and erect structures or otherwise on footpaths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distribut- ing its wealth and resources for the settlement of life and erection of shelter over the people’s heads in order to make the Right to Life meaningful, effective and fruitful. The right to livelihood is meaningful precisely because life is impossible in its absence. The deprivation of the Right to Life in that context not only denudes life of effective content and meaning but also makes life miserable and impossible to sustain. Article 19 (1) (e) accords right to residence and settlement in any part of India as a Fundamental Right. Right to Life has been assured as a basic human right under Article 21 of the Constitution of India. Article 25 (1) of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for the health and well-being of himself and his family, which includes food, clothing, housing, medical care and necessary social services. Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights lays down that State Par- ties to the Covenant recognise that everyone has the right to standard of living for himself and his family including food, clothing, housing and to the continuous improvement of living conditions. In Maharashtra Ekta Hawkers Union vs Municipal Corporation, Greater Mumbai [(2004).1.SCC. 625]: “The above authorities make it clear that the hawkers have a right under Article 19 (1) (g) of the Constitution of India.” International Instruments incorporated The use of the Constitution to defend and further the rights of the poor has taken a unique turn in India. Unlike many courts in Europe or the United States,28 the Indian courts are empowered to directly incorporate and enforce International Treaties as part of municipal law. Thus International Treaties are not only used to interpret ambiguous provisions of law but are also, in themselves capable of being acted upon by the Indian courts. This very positive interpretation of the Consti- tution was utilised as far back as 1969 in Maganbhai’s29 case wherein the Supreme Court held

28 While most European states adopt a dualist system with respect to incorporation of international law, former countries from the Soviet Bloc have been much more willing to directly incorporate human rights treaties, international customary law and general principles of international law within their constitutions and thereby permit judicial application. See, for example, the constitutions of Latvia and Estonia. A similar trend is evident in Latin America. 29 Maganbhai vs Union of India, AIR 1969 SC 783 (1969). The Supreme Court stated: ‘By Article 73, subject to the provisions of the Constitution, the Executive Power of the Union extends to the matters with respect to which the Parliament has power to make laws. Our Constitution makes no provision making legislation a condition of the entry into an international Treaty in times either of war or peace. The Executive Power of the Union is vested in the President and is exercisable in accordance with the Constitution. The Executive is qua the State competent to represent the State in all matters international and may by Agreement, Convention or Treaties incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals. The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the Treaty or agreement operates to restrict the rights of citizens or others or modifi es the laws of the State. If the rights of the citizens or others which are justiciable KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |89 CHAPTER TWO that International Conventions that augment the rights of citizens are automatically enforceable while International Conventions that take away existing rights require domestic legislation to become enforceable. In the Gramophone Company of India’s case,30 the Supreme Court held that “the comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into confl ict with Acts of Parliament.” In the Apparel Export Promotion Council’s case,31 the Supreme Court held that “the courts must forever remain alive to the international instruments and Conventions and apply the same to a given case where there is no inconsistency between international norms and the domestic law occupying the fi eld.” Another important divergence of Indian law from European and American law can be found in respect to lawmaking by judges. The notion or ‘fi ction’ that judges only interpret the law has long since been discarded. It is now well settled that judges do in fact make law, often through progressive and creative interpretation. The progressive teleological interpretations of the European Court of Human Rights and European Court of Justice are a case in point. However, the Indian courts have gone one step further. The Supreme Court has candidly admitted that judges do in fact make law, particularly in circumstances where there is a gap in the law or where legislative coverage with respect to a Fundamental Right has been lacking for a considerable period of time. It is interesting to note that some western courts have moved in the same teleological direction and have been sometimes compelled to issue detailed orders or even re-write legislation. As the decisions of the Supreme Court stand on par with Statutes, the combination of this lawmaking propensity with the incorporation of international standards in Indian law makes for a highly potent force. This was seen in Vishakha’s case32 wherein, due to the lack of legislation relating to sexual harassment in the country, the Supreme Court incorporated the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and laid down guidelines in respect to the prevention and punishment of the crime of sexual harassment. Locus-standi in the enforcement of ESC Rights The debate on the Optional Protocol manifests a restrictive approach to the issue of standing to sue, and may benefi t from the approach of the Indian Courts. Western law traditionally requires a direct connection between the litigant and the subject matter of the litigation.

are not affected, no legislative measure is needed to give effect to the agreement or Treaty….If, in consequence of the exercise of Executive Power, rights of the citizens or others are restricted or infringed, or laws are modifi ed, the exercise of power must be supported by legislation : where there is no such restriction, infringement of the right or modifi cation of the laws, the Executive is competent to exercise the power. 30 Gramophone Company of India Limited vs Birendra Pandey AIR 1984 SC 677. 31 Apparel Export Promotion Council vs AK Chopra, 1999 (1) SC 756. 32 The court stated: ‘In the absence of domestic law occupying the fi eld, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are signifi - cant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the Fundamental Rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.’ Vishakha vs State of Rajasthan, 1997 (5) Scale 453 at para. 7. Available at www.supremecourtonline.com/cases/2447.html |90 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING

However in India, the Supreme Court innovatively held that it was permissible for any person acting in the bona fi de interest of the poor, illiterate or the oppressed to fi le writ petitions either in the High Courts or the Supreme Court for the enforcement of a Fundamental Right.33 The poor in India rarely know the law and often lack the means to litigate. As a result of the ruling, any doctor, lawyer, social worker, academic or any other interested party can fi le a case for the enforcement of the rights of millions of people, without needing to demonstrate any direct nexus with the relief sought in the litigation. Burden of proof However, the liberal standing requirements raise the issue of how a public interest litigant is to gather the evidence necessary for a national level case relating to large numbers of poor people? The Supreme Court answered this by laying down that once the public interest petitioner has brought the issue to the court, he is viewed as having done a service to the court and the people. Thereafter, it is the duty of the Court through the appointment of commissioners to gather the evidence necessary to establish the facts for the prosecution of the case. In other words, the evidentiary burden shifts on to the Court and becomes the public duty of the court to continue with the matter. Moreover, where the breach of a Fundamental Right is alleged, the burden is placed on the State to demonstrate that its actions are legal. Mandatory orders and their implementation How are the orders of the court to be enforced? Is it adequate for the court merely to make an order and then sit back and wait for the petitioner or some aggrieved party to fi le a case for contempt when the order is disobeyed? An interesting development took place regarding this point after the Judiciary noticed that even the orders of superior courts were routinely disobeyed. The court developed the practice of issuing the ‘continuing mandamus,’ whereby after the orders are issued, courts continued to retain jurisdiction over the matter and periodically review the progress of the implementation of the court order. Resources The Indian Supreme Court considered the question of how courts should respond to the routine objections of states claiming that they do not have adequate funds to enforce ESC rights. In the

33 See, for example, SP Gupta vs Union of India & Another [1981] (Supplementary) SCC 87; where the Court held that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reasons of violation of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any Fundamental Right of such person or class of person, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. This Court also held that procedure being merely a hand- maiden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would sufﬁ ce to ignite the jurisdiction of this Court. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |91 CHAPTER TWO

Ratlam Municipality case,34 the Supreme Court held that when it comes to the enforcement of a human right, the court would not entertain an enquiry into the “perverse expenditure logic” of the State departments. Divergence between law and reality Article A.25(1) of the Universal Declaration of Human Rights guarantees everyone Right to Hous- ing. Article KA(12) lays down that no one shall be subject to interference with his home. India has ratifi ed the International Covenant on Economic, Social and Cultural Rights without any reservation to Article 11, which requires India to recognise the right of everyone to an adequate standard of housing. General comment 4 on the right to adequate housing found that “despite the fact that the international community has frequently reaffi rmed the importance of full respect for the right to adequate housing, there remains a disturbingly large gap between the standards set in Article 11(1) of the Covenant and the situation prevailing in many parts of the world.” The Committee believed, it is possible to identify certain aspects of the right to adequate housing that must be taken into account. It required State Parties to “take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.” The State Parties were required “to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. The State Parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing fi nance, which adequately refl ect housing needs.” In evolving a housing policy to develop housing for the poor, the State was required to have “extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives.” Where the right to adequate housing was constitutionally entrenched, States were required to put in place legal procedures enabling appeals “aimed at preventing planned evictions or demolitions through the issuance of court-ordered injunctions; and legal procedures seeking compensation following an illegal eviction.” The Committee stated, “instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justifi ed in the most exceptional circumstances, and in accordance with the relevant principles of international law.” The Committee concluded “the State Parties, both recipients and providers, should ensure that a substantial proportion of fi nancing is devoted to creating conditions leading to a higher number of persons being adequately housed. The international fi nancial institutions promoting measures

34 Ratlam Municipality vs Vardichand and Others, AIR 1980 SC 67. Residents within part of Ratlam Municipality, lacked sanitation and brought legal action against the Municipality requesting that drain pipes be constructed. The Municipality claimed a lack of funds. The Magistrate gave orders that the Municipality had to draft a plan within six months. After the High Court approved the order, the Municipality appealed to the Supreme Court. The Supreme Court upheld the order and directed the Municipality to take immediate action within its statutory powers. This included construction of suffi cient public latrines and drains and provision of water supply, the Supreme Court held that the plea of fi nancial stringency by the municipal body is no defence for its failure to fulfi ll its statutory obligations. This Court held that “The plea of the municipality that notwithstanding the public nuisance, fi nancial inability validly exonerates it from statutory liability has no juridical basis. The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the state regardless of budgetary provision. Otherwise, a profl igate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be.” Further, it held that “decency and dignity are non-negotiable facets of human rights and are a fi rst charge on local self governing bodies.” |92 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING of structural adjustment should ensure that such measures do not compromise the enjoyment of the right to adequate housing.” In General Comment 7, the Committee noted that the Commission on Human Rights has indicated, “forced evictions are a gross violation of human rights,” however, “although these statements are important, they have opened up one of the most critical issues, namely that of determining the circumstances under which forced evictions are permissible and of spelling out the types of protection required to ensure respect for the relevant provisions of the Covenant.” The term “forced evictions,” as used throughout this General Comment, is defi ned as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of and access to, appropriate forms of legal or other protection. Other instances of forced eviction occur in the name of development. Evictions may be carried out in connection with confl ict over land rights, development and infrastructure projects, e.g., the construction of dams or other large-scale energy projects, land acquisition measures associated with urban renewal, housing renovation, city beautifi cation programmes, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games. Article 2.1 of the Covenant encourages State Parties to use “all appropriate means,” including the adoption of legislative measures, to promote all the rights protected under the Covenant. It is clear that legislation against forced evictions is an essential platform upon which to build a system of effective protection. Such legislation should include measures which (a) provide the greatest possible security of tenure to occupiers of houses and land, (b) conform to the Cov- enant, and (c) are designed to strictly control the circumstances under which evictions may be carried out. Moreover, in view of the increasing trend in some states towards government policy greatly reducing its responsibilities in the housing sector, State Parties must ensure that legislative and other measures are adequate for the prevention and punishment as forced evictions are carried out in the absence of the appropriate safeguards by private persons or bodies. The State Par- ties should therefore review relevant legislation and policy to ensure their compatibility with the obligations arising from the right to adequate housing and repeal. The State Parties shall ensure, prior to carrying out any evictions (particularly those involving large groups), that all feasible alternatives have been explored in consultation with the affected persons with the objective of avoiding or at least minimising the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. The State Parties also see to it that all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. The Committee considers the procedural protections applied in relation to forced evictions to necessarily include: (a) an opportunity for genuine consultation with those affected, (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction, (c) that information be made available on the proposed evictions, and where applicable, on the alterna-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |93 CHAPTER TWO tive purpose for which the land or housing is to be used to all those affected within a reasonable amount of time, (d) the presence of government offi cials or their representatives during an eviction, especially in situations where groups of people are involved, (e) that all persons carrying out the eviction be properly identifi ed, (f) that evictions are not to take place in particularly bad weather or at night unless the affected persons consent otherwise, (g) the provision of legal remedies, and (h) the provision, where possible, of legal aid to persons in need desiring to seek redress from the courts. The Committee is aware that various development projects fi nanced by international agencies within the territories of State Parties have resulted in forced evictions. In this regard, the Com- mittee recalls its General Comment 2 (1990), which states inter alia that international agencies should scrupulously avoid involvement in projects that promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. Every effort should be made, at each phase of a development project, to ensure that the rights contained in the Covenant are duly taken into account. In accordance with the guidelines for reporting adopted by the Committee, the State Parties are requested to provide various types of information pertaining directly to the practice of forced evictions. This includes information relating to (a) the “number of persons evicted within the last fi ve years and the number of persons currently lacking legal protection against arbitrary eviction or any other kind of eviction,” (b) legislation concerning the rights of tenants to security of tenure and protection from eviction and (c) legislation prohibiting any form of eviction. Information is also sought as to measures taken during inter alia urban renewal programmes, redevelopment projects, site upgrading, preparation for international events (Olympics and other sporting competitions, exhibitions, conferences, etc.), ‘beautiful city’ campaigns, etc., which guarantee protection from eviction or guarantee re-housing based on the mutual consent by any persons living on or near to affected sites. However, few State Parties have included the requisite information in their reports to the Committee. The Committee, therefore, wishes to emphasise the importance it attaches to the receipt of such information. Some State Parties have indicated that information of this nature is not available. The Committee recalls that the effective monitoring of the right to adequate housing, either by the government concerned or by the Committee, is not possible in the absence of the collection of appropriate data, and thus requests all State Parties to ensure that the necessary data is collected and refl ected in the reports submitted by them under the Covenant. The issue of housing rights in India is a glaring example of practice departing sharply from the law. India ratifi ed without reservation the International Covenant on Economic, Social and Cultural Rights. The ICESCR has been referred to in scores of judgements of the Supreme Court, and there is no doubt whatsoever that it is enforceable in the Indian courts. Nevertheless wave after wave of brutal demolitions have taken place in inclement weather without notice, justifi able reason, compensation or rehabilitation. There are several decisions of the Supreme Court that specifi cally include the Right to Housing in Article 21 – the Right to Life. Yet this has never been enforced except when propertied sections seek to enforce their rights. There is no explanation for the vehemence with which demolitions are undertaken, and it seems as though they are car- |94 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING ried out without any regard for the fact that the State is dealing with human beings. Evictions in India are akin to those in apartheid South Africa. No other democratic country has behaved in such a manner with its urban poor as India has. The drive to clear the cities of the poor will have terrible consequences not only for poor but also for the city itself, as it is likely to give rise to grave crimes, violence and in the long run, insurrection. If this occurs in the future despite our cognizance of the problem and its measures of redress, we will unfortunately have only ourselves to blame.

–Eviction Watch-II November 2006

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |95 AND THE HOUSES ALL FELL DOWN

n Chameli Singh’s case and Shantistar Builder’s case, the Supreme Court held the Right to Housing to be part of the Fundamental Rights, saying that the right to shelter includes ad- Iequate living spaces, decent structures, clean surroundings. Then in 1997, in Nawab Khan’s case, SC specifi ed: “it is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The State has the constitutional duty to provide shelter to make the Right to Life meaningful.” SC, dealing with the issue of encroachers, said, “the mere fact that encroachers have approached this Court would be no ground to dismiss their cases.” India’s international obligations also emphasise the State’s duty to house the poor. India ratifi ed the International Covenant on Economic, Social and Cultural Rights which “commits all State Parties to the present Covenant to recognise the right to an adequate standard of living including housing.” The UN Commission on Human Rights in its Resolution on Forced Evictions emphasised: “the practice of forced eviction constitutes a gross violation of human rights, in particular, the Right to Housing.” It recognised that “instances of forced evictions occur in the name of development (and) city beautifi cation programmes” and cautioned: “the State Parties shall ensure, prior to carrying out any eviction, that all feasible alternatives are explored, avoiding or at least minimising the need to use force and see to it that all the individuals concerned have a right to compensation.” The GoI framed the National Habitat and Housing Policy, 1988. It warns: “After 50 years of Independence, most of us still live in conditions in which even beasts would protest... calls for nothing else than a housing revolution.” The Constitutional Court of South Africa in 2000, in the case of Republic of South Africa versus Grootboom, emphasised: “economic rights cannot be said to exist on paper only. The Constitution requires the State to respect, protect, promote and fulfi l these rights and the courts are constitutionally bound to ensure that they are protected. Each right has a minimum essential level that must be satisfi ed and the State has an obligation to take reasonable measures to achieve the progressive realisation of the Right to Housing.” Despite the decision of SC in Nawab Khan’s case, in spite of the commitments in the National Habitat and Housing Policy and in the face of our international commitments, slum dwellers, who have lived in areas for years, have their homes demolished without notice or alternative accommodation and without any real public purpose. In stark contrast, the illegal constructions of Sainik Farms on Delhi’s outskirts remain untouched. Here, notices are given. Legal proceedings commence. Despite court orders, nothing happens. Years pass, the illegal constructions remain. There is a Right to Housing in India. And it is a Fundamental Right. But for the rich, not the poor.

–The Indian Express December 30, 2004 |96 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NOWHERE TO LIVE : URBAN HOUSING IN INDIA

amuna Pushta looks like a battle zone. As far as the eye can see, the tiny houses of the poor lie in ruins. Naked children sit in disarray in the midst of their few, scattered belongings. The Ydemolition started with hardly any notice. Bulldozers moved in and, reminiscent of Apartheid South Africa, crushed their homes. As during the Emergency, policemen were everywhere. Relo- cation is supposed to be done at Holambi Kalan, but in reality hardly one-fi fth of the residents will be relocated. When I visited Holambi Kalan, I found it a god forsaken dump with overfl owing toilets, no electricity, no schools and mosquitoes everywhere. The eviction of the poor is truly an act of barbarism. The Yamuna Pushta demolition is being done to make way for a tourist complex including shop- ping malls and a golf course. The Lajpat Nagar demolition to make way for the installation of a statue of Lala Lajpat Rai! It is not accidental that, in both these instances, the jhuggies had a sizeable Muslim population. In the Lajpat Nagar demolition, the Muslims, who were entitled to alternative accommodation, were refused and told that they would have to get a police verifi cation done fi rst. Why the tearing urgency? When the Lajpat Nagar residents asked that the demolition be postponed by a few weeks, so that their children could fi nish their studies and sit for the examinations, the plea was refused. I wonder what Lala Lajpat Rai would do if he could see what was being done in his name. All this despite housing being a Fundamental Right guaranteed under Article 21 of the Constitu- tion – the Right to Life. In Chameli Singh’s case and Shantistar Builder’s case, the Supreme Court held the Right to Housing to be part of the Fundamental Rights, saying that the right to shelter includes adequate living spaces, safe and decent structures and clean surroundings. Then in 1997, in Nawab Khan’s case, the Supreme Court particularised this right: “It is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The State has the constitutional duty to provide shelter to make the Right to Life meaningful.” Dealing with the aspect of encroachers the Supreme Court said, “the mere fact that encroachers have approached this court would be no ground to dismiss their cases. Where the poor have resided in an area for a long time, the State ought to frame schemes and allocate land and resources for rehabilitating the urban poor.” India’s international obligations under various Conventions also emphasise the duty of the State to take care of housing for the poor. The Universal Declaration of Human Rights states that, “everyone has a right to a standard of living including food, clothing, housing, medical care and

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |97 CHAPTER TWO necessary social services.” India has ratifi ed the International Covenant on Economic, Social and Cultural Rights which “commits all State Parties to the present Covenant to recognise the right to an adequate standard of living including housing. The State Party is to take appropriate steps to ensure the realisation of this right.” The UN Commission on Human Rights, in its Resolution on Forced Evictions, emphasised that: “the practice of forced eviction constitutes a gross violation of human rights, in particular, the Right to Housing. The Commission recognised that, “instances of forced evictions occur in the name of development (and) city beautifi cation programmes” and cautioned; “State Parties shall ensure, prior to carrying out any eviction, that all feasible alternatives are explored, avoiding or at least minimising the need to use force and see to it that all the individuals concerned have a right to compensation.” Compatible with this international obligation, the Government of India framed the National Habi- tat and Housing Policy, 1988 which warns: “After 50 years of Independence most of us still live in conditions in which even beasts would protest. The situation is grim and calls for nothing else than a housing revolution.” The Constitutional Court of South Africa in 2000, in the case of Republic of South Africa vs Grootboom, emphasised: “economic rights cannot be said to exist on paper only. The Constitution requires the State to respect, protect, promote and fulfi l these rights and the courts are constitutionally bound to ensure that they are protected. Each right has a minimum essential level that must be satisfi ed and the State has an obligation to take reasonable measures to achieve the progressive realisation of the Right to Housing.” Despite the decision of the Supreme Court in Nawab Khan’s case, inspite of the pious commitments in the National Habitat and Housing Policy and in the face of our international commitments, slum dwellers, who have lived in areas for years, have their homes demolished without notice or alternative accommodation and without any real public purpose. In stark contrast, the illegal constructions of the Sainik Farms on the outskirts of Delhi remained untouched. Here the approach of the administration, and the Judiciary, is very different. Notices are given. Legal proceedings commence. Despite orders of the courts nothing happens. Then government considers regularisation of the patently illegal construction. Years pass and the illegal constructions remain. There is a Right to Housing in India. And it is a Fundamental Right. But for the rich not for the poor.

–Editorial, Combat Law September-October 2004

|98 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation REFLECTIONS ON THE INDIAN EXPERIENCE

he use of the Constitution − to defend and further the rights of the poor − has taken a unique turn in India. Unlike many courts in Europe or in the United States,1 the Indian courts Tare empowered to directly incorporate International Treaties as part of municipal law and to enforce them as such. Thus, International Treaties are not only used to interpret ambiguous provisions of law but are also, by themselves, capable of being acted upon in the Indian courts. This very positive interpretation of Constitution was made use of as far back as 1969 in the case of Maganbhai vs Union of India2 where the Supreme Court held that International Conventions, that add to the rights of citizens, are automatically enforceable without the need for amendment of domestic legislation; International Conventions, that take away existing rights, require such implementation to become enforceable. The second important divergence of the Indian law, from the European and US law, is in respect of lawmaking by judges. The notion or “ﬁ ction” that judges only interpret the law has long since been discarded. It is now well settled that judges do, in fact, make the law, often through progressive and creative interpretation. The progressive teleological interpretations of the European Court of Human Rights and European Court of Justice are a case in point. The Indian courts have, however, gone one step further, at least on a consistent basis.3 The Supreme Court has candidly admitted that judges do in fact make laws, particularly in circumstances where there is a gap in the law or where legislative coverage, in respect of a Fundamental Right, has been lacking for a considerable time. It is interesting to note that some western courts, that have moved in the same teleological direction, have sometimes been compelled to issue detailed orders or even re-write legislation. 1 While most European States adopt a dualist system with respect to incorporation of international law, former countries from the Soviet bloc have been much more willing to directly incorporate human rights Treaties, international customary law and general principles of international law within their Constitutions and thereby permit judicial application. See, for example, the Constitutions of Latvia and Estonia. A similar trend is evident in Latin America. 2 Maganbhai vs Union of India, AIR 1969 SC 783 (1969). The Supreme Court stated: “A Treaty really concerns the political rather than the judicial wing of the State. When a Treaty or an award after arbitration comes into existence, it has to be implemented and this can only be if all the three branches of government to wit the Legislature, the Executive and the Judiciary, or any of them, possess the power to implement it. If there is any deﬁ ciency in the constitutional system it has to be removed and the State must equip itself with the necessary power. In some jurisdictions the Treaty or the compromise read with the Award acquires full effect automatically in the Municipal Law, the other body of Municipal Law notwithstanding. Such Treaties and awards are ‘self-executing’. Legislation may nevertheless be passed in aid of implementation but is usually not necessary” (para. 24). 3 See, for example, Article 35 of the Federal Constitutional Court Act which reads: “In its decision the Federal Constitutional Court may state by whom it is to be executed; in individual instances it may also specify the method of execution.” In the second abortion case, a detailed interim law was written by the court and was to remain in place until new legislation came into force. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |99 CHAPTER TWO

As the decisions of the Supreme Court stand at par with the Statutes, a combination of this lawmaking propensity, together with the incorporation of international standards in the Indian law, makes for a very potent force. This was seen in the case of Vishakha vs State of Rajasthan,4 where, due to the lack of a law relating to sexual harassment in the country, the Supreme Court incorporated the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and laid down the Vishakha Guidelines in respect of the prevention of sexual harassment and punishment for that crime. These guidelines are now law and are enforceable throughout the country. The third important development in the Indian constitutional law, relating to the poor, is in respect of standing to sue. Western-inspired law traditionally requires a direct connection between the litigant and the subject matter of the litigation. In India, however, innovative developments came over two decades ago when the Supreme Court held that it was permissible for any person − acting bona fi de in the interest of the poor, illiterate or the oppressed − to fi le writ petitions either in the high courts or the Supreme Court for the enforcement of a Fundamental Right.5 This innovation illustrated that the Judicial System could be used for more than merely a system of justice for the rich. The poor in India rarely understand human rights and even more rarely litigation, thus, as things stand today, any doctor, lawyer, social worker, academic, indeed any person can fi le a case in a proper court for the enforcement of the rights of millions of persons without needing to demonstrate any direct nexus with the relief sought in the litigation. The liberal standing requirements, however, raise the question of how a poor public interest litigant is to gather the evidence necessary for a national level case relating to large numbers of unfortunate persons? The Supreme Court answered that question by saying that once the public interest petitioner brings the issue to the court he is viewed as having done not only the court but also the country a service. Thereafter it is the duty of the court, through the appointment of commissioners, to gather the evidence necessary to establish the facts for the prosecution of the case. In other words, the evidentiary burden shifts on to the court and it becomes the public duty of the court to continue with the matter. Implementation and resource questions Another issue, then, is how to ensure that the orders of the court are obeyed? Is it adequate for the court merely to make an order and then sit back and wait for the petitioner, or some aggrieved party, to fi le a case for contempt when the order is disobeyed? An interesting innovation took place on this point after the Judiciary noticed that orders, of even the superior courts, were routinely disobeyed in India. The court developed the practice of issuing the “continuing mandamus”, whereby after the orders are issued, courts continued to retain jurisdiction over the matter

4 The court stated: “In the absence of domestic law occupying the fi eld, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are signifi - cant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the Fundamental Rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.” Vishakha vs State of Rajasthan, 1997 (5) Scale 453 (1997) at para. 7. Available at www.supremecourtonline.com/cases/2447.html 5 See, for example, SP Gupta vs Union of India & Another [1981] (Supplementary) SCC 87; (AIR) 1982 SC (149). |100 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING and periodically review the progress of the implementation of the respective court order. As for the issue of resources, the Indian Supreme Court considered the question of how courts should respond to the often routine objections of states that they do not have adequate funds to ensure that persons have their basic Fundamental Rights enforced. In the Ratlam Municipality case,6 the Supreme Court held that, when it comes to the enforcement of a human right, the court would not entertain an enquiry into the “perverse expenditure logic” of the state departments. There have been hundreds of cases relating to the enforcement of a Fundamental Right through the medium of Public Interest Litigations. For instance, in the People’s Union for Civil Liberties case,7 which is a petition that has affected millions of people throughout India, the Supreme Court directed a Mid-day Meal for the school children, the giving of highly subsidised grain to the poor and an employment scheme for the unemployed. Similarly, in the Unikrishnan8 case, the Supreme Court said that education was a Fundamental Right and it was the duty of the State to provide free and compulsory education for all children. The Supreme Court has held, in the asbestos case, that the right to health is an integral part of the Article 21, which is the Right to Life and in the Shantistar Builder’s case,9 the Supreme Court held that housing was a Fundamental Right. Then in 1997, in the Nawab Khan case,10 the Supreme Court held, “it is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The State has the constitutional duty to provide shelter to make the Right to Life meaningful.” Likewise, in the MC Mehta case,11 the Supreme Court held that everyone has a right to a clean and healthy environment and clarifi ed that the Right to Life did not mean “mere animal existence.” However, not all decisions of the Supreme Court have been satisfactory from a human rights point of view. The partially ambiguous and recommendatory nature of the decision of the Court in Olga Tellis vs BMC,12 resulted in mass evictions of pavement dwellers in 1985. It is certainly

6 Ratlam Municipality vs Vardichand and others, 67 AIR, (1980). Residents within part of Ratlam Municipality, lacked sanitation and brought legal action against the Municipality requesting that drain pipes be constructed. The Municipality claimed a lack of funds. The magistrate gave orders that the Municipality had to draft a plan within six months. After the High Court approved the order, the Municipality appealed to the Supreme Court. The Supreme Court upheld the order and directed the Municipality to take immediate action within its statutory powers. This included construction of sufﬁ cient public latrines and drains and provision of water supply. 7 People’s Union for Civil Liberties (PUCL) vs Union of India (2001) 7 SCALE 484 (2001). 8 JP Unikrishnan vs State of Andhra Pradesh 1993 (1) SCC 645. 9 Shantistar Builders vs Narayan Khimalal Tatome and Others AIR 1990 SC 630. 10 Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan, AIR 1997 SC 152. 11 MC Mehta vs Union of India and Ors., [1999] ICHRL 58 (29 April 1999). 12 Olga Tellis vs Bombay Municipal Corporation [1985] 2 Supp SCR 51. The Supreme Court stated ‘[W]e hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose like, for example, a garden or a playground; that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti [an informal settlement] is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the state government in its pleadings here which, we repeat, must be made good. Stated brieﬂ y, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |101 CHAPTER TWO not clear that the Indian jurisprudence complies with the international standards on forced evic- tions13. However, the Supreme Court, in the earlier mentioned case of Nawab Khan, has indicated that it may take a stronger position on resettlement for those living in informal settlements or by the roadside: [T]he mere fact that encroachers have approached this court would be no ground to dismiss their cases. Where the poor have resided in an area for a long time, the State ought to frame schemes and allocate land and resources for rehabilitating the urban poor. One of the main concerns of housing rights groups in India is the ease with which middle class groups have been able to secure eviction orders against poor urban and rural dwellers. Litigation strategy There are many important public interest petitions coming up now before the Supreme Court with which the Human Rights Law Network is actively associated. A case − demanding the provision of antiretroviral (ARV) drugs to persons infected with HIV − is pending. Lawyers, in India, look to South Africa and many South American countries for precedents in this regard.14 An important case, relating to the Right to Housing for slum dwellers, is also pending before the Supreme Court. A third case relates to the rights of indigenous people who are currently being evicted from the forest areas. Here once again, we look to the decisions in South America and also the case law developing in Canada, New Zealand, the United Kingdom and elsewhere relating to the customary rights of the Tribal communities to continue to reside in forest areas notwithstanding their lack of formal title to land.

and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the ‘Low Income Scheme Shelter Programme’ which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the Slum Upgradation Pro- gramme (SUP) under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter, only in accordance with this judgement. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. October 31, 1985.’ 13 India has ratiﬁ ed the International Covenant on Economic, Social and Cultural Rights (ICESCR), which ‘commits all State Parties to the present Covenant to recognise the right to an adequate standard of living … including housing’. The Covenant has been interpreted to ground a prohibition on forced eviction that provides for the right to alternative accommodation in the case of forced evictions, although some allowance is made for a country’s resources: ‘Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.’ See Committee on Economic, Social and Cultural Rights, General comment No. 7: The right to adequate housing (Article 11.1): forced evictions (1997) at para. 16. In its 1993 resolution on forced evictions, the UN Commission on Human Rights emphasised that ‘the practice of forced eviction constitutes a gross violation of human rights, in particular, the Right to Housing’. See also the chapter by Budlender in this volume. 14 See ‘Global Treatment Access: Legal Developments and Strategies’, Paper prepared for Putting Third First: Vaccines, Access to Treatment & the Law, A satellite meeting of the 14th International AIDS Conference Barcelona, 5 July 2002. Available at www.aidslaw.ca/barcelona2002/treatmentpapers.doc |102 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO HOUSING

The approach of the Human Rights Law Network is to always undertake cases in collaboration with the people’s movements so that the lawyers learn from them and the orders of the courts are ultimately monitored by the people’s movements themselves. Not much can be done without the support of NGOs. The Right to Food judgement, for example, precipitated an India-wide movement to monitor implementation of the government food programmes. Conclusion There are some who criticise the activist nature of the courts and say that ultimately an activist Judiciary encroaches on the Executive branch of the government. While this may be true, the situation in India must be understood. The Executive branch is riddled with corruption and has long ceased to function properly, particularly with respect to its duties towards the poor. Has the Supreme Court encroached upon this realm? Yes, it has. But it has done so on behalf of the poor and to that extent people feel that the Judiciary has done something good. In the long term, it is not a healthy trend to have the Judiciary constantly pulling up the government. Accountability and responsibility of the government must be restored. Today in India, however, the situation is that the Judiciary remains the only democratic institution whose integrity is, to a substantial extent, intact. Lawmaking, by the Judiciary, has also impacted positively on the appointment of judges. Earlier, judges were appointed largely by the Executive. In a subsequent Constitutional Bench decision, the Apex Court held that the appointment would be done by the collective of judges in consultation with the Executive. It is said that this is not entirely satisfactory and that the Executive must be given a more prominent role. Be that as it may, independence of the Judiciary has been enhanced by judges appointing judges rather then the Executive appointing judges.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |103

HEALTHCARE THREE CHAPTER

1. National Health Bill 2. Using PILs to Combat Maternal Mortality 3. Mental Health and Abortion Rights 4. The Sorry State of ARV 5. Drug Prices Set to Soar courtesy: Combat Law

The principal problem appears to be that the poor are charged a fee for basic healthcare services. The World Bank sponsored user- fee system has become widespread and has resulted in the denial of healthcare services to millions. NATIONAL HEALTH BILL

was preparing a draft of the Right to Food Act, for the Right to Food Campaign, when I came across a copy of the 2009 version of the Government of India Working Draft of the National I Health Bill, 2009. As I was alarmed by the contents of this draft, I wish to share my principal concerns. Almost 70 percent of the Indian population lives at or below the poverty line in terms of food intake. The Arjun Singh Committee found that 60 percent of the population lives below Rs. 20 per day. In spite of my limited experience doing health right cases in courts, it can well be said that the principal problem appears to be that the poor are charged a fee for basic healthcare services. The World Bank sponsored user-fee system has become widespread and has resulted in the denial of healthcare services to millions. Theoretically speaking, on paper, those below the poverty line should be provided with healthcare services free of cost. In practice, this right has been obliterated and, even in public hospitals, persons with BPL cards are left with no choice but to pay for medication and for their treatment. I would have thought that the National Health Bill, 2009 would address that issue squarely. On the contrary, the Bill legitimises and authenticates a system where the poor do not get health services free (except for a very targeted section of the population) and the poor are required to pay an “affordable” user-fee. I would like you to take a closer look at the Bill as it is currently drafted. Take a look at section 3 (c) and (d) which provide for free and universal access to healthcare services only for the “vulnerable and marginalised.” While 3 (c) begins well, the proviso makes universal healthcare services the “immediate duty” for “vulnerable and marginalised people.” Having participated in debates on the Public Distribution System, I was aghast that such language could be used in the draft Bill. The PDS, on the Right to Food, covers 37 percent of the population as being located BPL and has a much wider than “vulnerable and marginalised groups” allow scope for. The phrase− “vulnerable and marginalised groups”− has come to mean primitive tribes, women-headed households and so on and so forth. These groups get what is known as the AAY card and are among the poorest sections of society. They form about 10 percent of the entire population or approximately the lower one-third of the BPL list. In the RTF Act, that we are drafting, the nationwide consensus is that even this 36 percent is no longer acceptable given that 70 percent of the population consumes less than 2,400 calories per person per day. The RTF Campaign has thus asked for a universalisation with exclusions. What is excluded is a creamy layer of government servants, landlords with tractors and so on. It is hoped that such a formulation will bring the Right to Food to 70 percent of the population. The RTF Act covers only a small part of the Right to Food and therefore we have now titled our draft The Food Entitlements Bill, 2009. Besides PDS, it also covers ICDS and various other schemes.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |107 CHAPTER THREE

One would have thought that the National Health Bill, 2009 would begin with a basic understanding of how mammoth the levels of poverty in India are. The fundamental discussion, which should have preceded the beginning of the drafting process, appears not to have been undertaken. I say this because the Bill, though generous in scope as well as meticulously detailed in drafting, lacks heart. The core of the Bill is not only weak but also anti-poverty in scope. Now look at Section 3 closely. It is possible to argue that “vulnerable and marginalised groups” mean every living being under the sun, particularly with reference to Section 2(qq). Looking at the section one could argue that all women, children, adolescents, older people, etc., come within the purview of the defi nition of vulnerable groups. If that is the intention then a vast majority of the population will be covered. Then why has the bill not been drafted explicitly, keeping in mind the vast part of the population. A substantial right − given to a substantial section of the population, which is likely to go contrary to existing practices − must be stated explicitly and cannot come in by way of a defi nition clause. But one cannot really get away from the long history of the use of this term in India. In the Right to Food Campaign we have had our share of the debate with certain persons preferring to focus on the “vulnerable and the marginalised;” the majority view, in the RTF Campaign, is to univer- salise as much as possible the Right to Food given the widespread nature of poverty and hunger. Therefore, try as we may to pretend that the phrase will actually cover the majority of the poor in India, the reality is that the immediate duty of the state will only be to provide free and universal healthcare only to those who are defi ned as “vulnerable and marginalised.” Seventy percent of the population that is located below the poverty line should have a right to free and universal access to healthcare services. This should have been at the heart of the National Health Bill, 2009. Section 9 deals with the meaning of the word “accessible” and Section 9 (b) (iii) defi nes “acces- sibility” as “economic access or affordability.” “Affordable” is defi ned in Section 2 (a). The structure, that emerges, is that of free services for the “vulnerable and marginalised” and affordable services for the rest of the poor. This is the exact ideology of the “user-fee” system of the World Bank in India. The same thinking lies behind the water privatisation attempt of the World Bank in Delhi. Everyone must pay what is affordable including the poor who are below the poverty line. Now if one looks at Section 14 (iv) one fi nds a reference, for the fi rst time, to fee non-payment. However, this is so only in the context of emergency treatment and care. Intriguingly, the most critical phrase − “free and universal access to healthcare services,” set out in Section 3(c) − has not been defi ned anywhere in the Bill. Should a patient be sent out to buy drugs or be denied a bed in a hospital or has to pay for food while undergoing treatment. One would have thought that this is the section which needs the most careful elaboration since the user-fee system is so widespread that virtually nothing remains of the public healthcare system. Almost every person, including the “vulnerable and marginalised” have had the experience of being left with no choice but to buy medicines from chemists after being examined in a public hospital. Now look at Section 3(c) once again. The Government of India could well close down their public healthcare system and that would be compatible with the provisions of this draft Bill because the

|108 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE strengthening of the public healthcare system is not really required anywhere in India. A “vulnerable” person could be referred to a private hospital with the government undertaking to pay the expenses and that would be perfectly compatible with the provisions of this Bill. And don’t be mislead by the language of Section 4(a) because that only ensures that the already-existent facilities, drugs etc., are distributed equally. It does not guarantee the creation of additional facilities or a renewed supply of drugs. Chapter VIII is supposed to be a fi nancial memorandum; in the January 2009 version it is a blank. It is important to take a close look at this fi nancial memorandum because that will tell the whole story. My guess is that the Government of India has no intention of providing free and universal healthcare services to the poor and instead intends to continue on its path of privatisation. The National Health Bill, 2009 will provide the camoufl age under which the government will decimate the public healthcare system. Finally, please take a look at the experiences of civil society groups working on food and education. In the Right to Food Campaign we saw the government circulate a horrible draft and it was only when a hue and cry was raised, by movement organisations, that a collective and democratic process of people’s organisations, drafting their own Bill, began. Similarly the Right to Education Act, 2009 is a terrible piece of legislation. The National Health Bill, 2009 follows in the same trend. It has, as I mentioned earlier, exquisite detailing and this will no doubt please many. But at its core it fails to guarantee genuine free healthcare for the people of India. The framework is entirely that of globalisation where the State is not seen as being necessary for providing healthcare services and is relegated to the subordinate role of “regulating” the private sector which is expected to provide the bulk of the services. The poor will go to the private sector and hopefully may get subsidised services because huge funds of the State will be channeled to the private sector in terms of subsidies. Public sector funding will suffer. Public institutions, already in a deplorable state, will decline further. This is what the bill seeks to legitimise. In fact, in the Preamble itself it is stated that “there is need to have an overarching legal framework and a common set of standards, norms and values to facilitate the governments’ stew- ardship of private health sector as a partner.” Similarly in Chapter II, which deals with the obligations of the government, there is no mention of wanting to strengthen the public healthcare system. The same can well be said of Section 6 which deals with the specifi c obligations of the central government and the state government. This core of the public healthcare system is not mentioned in the Bill at all! What is equally worrying is that JSA is mentioned in the covering note to the Bill and “that it was then examined by an especially constituted task force comprising eminent lawyers, public health experts, medical professionals and public administrators from across the country. It was also presented before some select groups of experts from diverse fi elds. The feedback was used to continually revise and improve upon the original draft.” This gives the impression that health organisations and experts throughout the country have backed-up this Bill!

–August 2009

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |109 USING PILS TO COMBAT MATERNAL MORTALITY

nnovative Judicial law making, by the Supreme Court in the 1980s, created a distinctive branch of litigation called Public Interest Litigation (PIL). This innovation permitted any person Ito fi le a class action petition for, and on behalf of, the poor. PILs were cheap and often resulted in practical benefi ts for substantial sections of society. The Human Rights Law Network has been using PILs in the area of maternal mortality with considerable success. The PIL, regarding the pernicious practice of child marriages in India, has resulted in a directive, to the police and the administration in all the states, to implement the Child Marriage Restraint Act and to prevent child marriages in the country. The Court pushed the government to enact a new law. The Supreme Court has ordered the National Human Rights Commission to investigate cases of mass child marriages in certain states. The Supreme Court has also made the registration of all marriages absolutely mandatory. Though the matter is still being heard in the Supreme Court, NGOs in different parts of the country have reported a noticeable drop in the number of child marriages and a sharp decline in the mass child marriages that were organised on “auspi- cious” days. A PIL was fi led challenging the government’s decision to discontinue the National Maternity Ben- efi ts Scheme, which provided Rs. 500 to every poor pregnant woman to supplement nutrition. As a result of this case, the Supreme Court not only directed that the scheme be not discontinued but also extended the scheme to ensure that the payment of this sum of money is made irrespective of the present number of children or the age of the pregnant woman. It is estimated that this order could benefi t about 20 million women. Another PIL was fi led regarding the partial implementation of an important supplementary nutrition scheme for pregnant women, lactating mothers and adolescent girls. They receive nutritional benefi ts in what is called the Aanganwadi Scheme. Some 14,00,000 Aanganwadis were to be set up under this Scheme, but only 6,00,000 were operational. The Supreme Court issued the directive that the remaining be launched within a specifi ed time frame. This order, theoretically, would benefi t over 10 million women. Poor women are sterilised in the most appalling conditions in the government’s sterilisation camps in rural areas. Bicycle pumps are used instead of sterilised air, laproscopes are not sterilised. Medical camps are conducted in the most unhygienic rooms without even the most elementary care taken for cleanliness. The operations are done in an assembly-line fashion. Pre- operative tests and precautions are not taken and post-operative care does not exist. Women

|110 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE suffer in silence. As a result of a PIL done in the Supreme Court, extensive guidelines were laid down throughout the country. Doctors were required to possess a minimum qualiﬁ cation, cleanliness standards were to be enforced, pre and post-operative care was to be taken. Apart from this, a national insurance scheme came into force under the directions of the Court and a monitoring and reporting system was required to be set up. Series of cases were done relating to the maternal health of pregnant women including pregnant HIV positive women and Dalit women, who were turned away by public hospitals because they were poor or HIV positive. Some delivered children on the pavements outside hospitals. Others developed serious complications and nearly died without treatment. The High Courts intervened in several cases ordering immediate admission and free treatment and also directed that an enquiry be conducted to investigate what seemed like negligence. These cases have potentially far-reaching repercussions for the treatment of poor women throughout the country. A series of cases were done on public health centres, community health centres and facilities in public hospitals. In most cases, particularly in rural areas, trained staff, medicines and equipment are not available. Emergency obstetric care facilities, which are required to be put in place under government programmes, are rarely available. Blood is often not available. Ambulances, to take the women to the health institutions, do not operate. This is why the maternal mortality rates in India are so high. The High Courts have intervened in a number of cases. While the cases are pending blood facilities have been made available in some states and the public health system has been placed under scrutiny. Apart from litigation, training on the law − including judicial colloquiums and the publication of know-your-rights material− has had a huge impact in getting judges, lawyers, NGOs, academics, activists and journalists to look at the issue from a rights perspective. The Indian People’s Tribunal on the Two-Child Norm gave direction to the national campaign against the two-child norm and was partly responsible for the subsequent decision of the government to do away with this Norm. A book on the topic, Coercion vs Empowerment, has been widely disseminated in India.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |111 MENTAL HEALTH AND ABORTION RIGHTS

very woman in India has the Fundamental Right to terminate a pregnancy. Her decision is ﬁ nal and of paramount importance. This applies to the mentally challenged women. No Eguardian, and no court, can take a decision on her behalf. The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that she can come to an informed decision one way or the other. The court, or a guardian, can take a decision in the matter only if the woman’s point of view is not possible to determine. Legal issues, in the Nari Niketan case, became very complex as consent could not be taken and the woman had no support or assistance of any kind. Therefore the Chandigarh Administration, as well as the Punjab & Haryana High Court, proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below: A 19-year old mentally challenged woman kept at Nari Niketan, Chandigarh, which is a government institution for destitute women, was raped sometime in March 2009 by the security guards on the premises and conceived. In May 2009, the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month, the director of the Government Medical College and Hospital, constituted a three-member board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she cries almost daily.” The board found that her mental age was that of a nine-year old child and that she fell in the category of mild mental retardation. A few days later, a four doctor multi-disciplinary medical board, which included a psychiatrist, was constituted and the board submitted a report recommending medical termination of pregnancy in the following terms: “2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident [sic]. 3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she is not able to elaborate the details further. The cause of mental retardation, in presence of bony abnormalities, can have a genetic basis and can be inherited by the baby.

|112 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE

4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies, who are premature and low birth weight, [sic] may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and intestinal problems. 5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child [sic] but it is a complex relationship which is beyond her capability and comprehension. 6. Child of a rape victim who doesn’t have family support can have social and emotional problems which can jeopardise his complete physical, mental and social well being later. 7. There is clear-cut humanitarian ground as per the Medical Termination of Pregnancy Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9 percent of cases, although the incidence of severe complications is very rare. The complications can still be minimised by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child’s health, and so recommends medical termination of pregnancy.” For some reason, the High Court decided to appoint yet another committee, consisting of three doctors including a psychiatrist, and appointed a judge to be the coordinator of the committee. This board answered the questions of the Court in the following manner: (i) The mental condition of the retardee She suffers from mild to moderate mental retardation (ii) Her mental and physical condition and ability for self-sustenance A case of mild to moderate mental retardation. Pregnant: Single live foetus corresponding to 13 weeks 3 days +/- 2 weeks, post-operative scars for spinal surgery, HbsAG positive Her mental status impedes her ability for independent socio-occupational functioning and self-sustenance. She would need supervision and assistance. (iii) Her understanding about the distinction between the child born out of and outside wedlock as well as the social connotations attached thereto

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |113 CHAPTER THREE

As per her mental status, she is incapable of making the distinctions between a child born before or after marriage or outside wedlock and is unable to understand the social connotations attached thereto. (iv) Her ability to understand the present and future consequences of her own pregnancy and that of the child she is bearing. She knows that she is bearing a child and is keen to have one. However, she is unable to appreciate and understand the consequences this can have on her own future and that of the child she is bearing. (v) Her mental and physical capacity to bear and raise a child She is a young primigravida with abnormalities of gait and spinal deformity and Hepa- titis B surface antigen positive status. However, she has adequate physical capacity to bear and to raise a child. She is a case of mild to moderate mental retardation which often limits the mental capacity to bear and raise a child in the absence of adequate social support and supervision. (vi) Her perception about bringing up a child and the role of an ideal mother She has grossly limited perception about bringing up a child and perform the role of an ideal mother. (vii) Does she believe that she has been impregnated through non-consensual sex? She has limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did have sex consensually and did not like the sexual act. (viii) Is she upset on account of the pregnancy alleged to have been caused by way of rape/ non-consensual sex? She has no particular emotions on account of the pregnancy alleged to have been caused by way of rape/ non-consensual sex. She is happy with the idea that she has a baby inside her and looks forward to seeing the same. (ix) Is there any risk of injury to the physical or mental health of the victim on account of her present foreseeable environment? Her mental environment of pregnancy does not pose any particular risk of injury to the physical health of the victim. Her mental health can be further affected by the stress of bearing and raising a child. Her external environment, in terms of her place of stay and the support available thereof, is diffi cult to comment on because of our lack of familiarity with the same. She defi nitely needs a congenial and supportive environment for her as well as for the safety of the child. (x) Is there any possibility of exerting undue infl uence, through any means, on the decision-making capability of the victim? Her mental state indicates high suggestibility because of her reliance on rote memory

|114 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE

and imitative behaviour. Being highly suggestible, her decision making can be easily infl uenced. (xi) Do the over-all surroundings provide reasonable space to the victim to indulge in an independent thinking process and take fi rm decisions on the issues vital to her life? We are not familiar with her overall surroundings, hence unable to comment. (xii) What is the possible nature of the major spinal surgery alleged to have been undergone by the victim during her childhood? Does it directly or indirectly relate to the bony abnormalities of the victim? Can such abnormalities have a genetic impact upon the as-yet unborn child? As per the neurosurgeon, spinal surgery during childhood could have been due to a neural tube defect or spinal cord tumour. A simple MRI test will confi rm this but can be hazardous for the foetus. There is no history/records available for the spinal surgery, hence the safety profi le issues, like those regarding the possible use of metal screws to fi x the spine wherein the MRI can be hazardous, cannot be defi nitely commented upon in this case. The nueral tube defect in the patient can lead to an increased chance of neural tube defects in the baby. However, these defects can be detected by blood tests and an ultrasound. Presence of neural tube defect in the parent is not an indication for termination of pregnancy. It is not possible to comment on the likelihood of a child inheriting spinal cord tumours without knowing the exact nature of the tumour. (xiii) Is there a genuine possibility of certain complications like chances of abortion, anaemia, hypertension, prematurity, low-birth weight baby, foetal distress and anaesthetic complications? The possibility of complications like abortion, hypertension, premature child birth, low-birth weight baby and foetal distress are similar and can well apply to any pregnancy in a woman of this age group. Due to the spinal abnormality and gait defect she has a higher chance of operative delivery and associated anaesthetic complications. Spinal and gait abnormalities are not an indication for termination of pregnancy. Pregnancy in women, with Hepatits B surface antigen positive status, is usually un- eventful. The prenatal transmission from mother to infant can be prevented by giving immunoprophylaxis to the neonate. Acute or chronic Hepatitis B infection during pregnancy is not an indication for termination of pregnancy. (xiv) What would be in the best interest of the victim? There are no major physical contraindications likely to impede the pregnancy. The health of the foetus can be monitored for any major congenital defects. Her mental state indicates limited mental capacity (intellectual, social, adaptive and emotional) to bear and raise a child. Social support and care, for both the mother and the child, is another crucial component. Therefore, any decision that is taken, keeping her best interests as well as that of her unborn child in mind, has to be based on the holistic

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |115 CHAPTER THREE

assessment of physical, psychological and social parameters. The board, however, was not able to take a decision and placed the onus on the Court. The Court relied upon the report of the psychiatrist which is, inter alia, as follows: “She could identify the place but could not convey what is meant by a hostel, hotel or a hospital. She could name doctor but had no conceptual understanding of the roles and functions of a doctor. She acknowledged that she had a child inside her but had no idea of how conception takes place, the development of pregnancy or even the duration of pregnancy, age of child inside her, how will it come into the real world, chances of any harm to or abnormality to her unborn child, what is expected of her in child rearing, how to provide succour and sustenance to child. To the extent that in her unborn child she saw the possibility of having a brother to her. She even had no clear idea of female and male, sexual act and its attendant emotions, concept of marriage, her role as a wife except that she would cook for the “bhaiya” (refers to matrimonial partner as a bhaiya or possible to every man as a bhaiya). She had poor idea of her sexual role and expectations in marriage. Her simple mental operations are reﬂ ected by her anguish at a preferred suit being torn during what she narrates attempt to undress her rather than an unwilling sexual encounter and its consequences thereof [sic].” Conclusion: Clinically, she meets the psychiatric diagnosis of Mild to Moderate Mental Retarda- tion…” In addition to this, the observation of a social worker, who interacted with the woman, was that the girl’s desire to have a child was like that of a child wanting a toy to play with. Looking at the physical condition of the mother − including the mental retardation, spinal deformity and the neural tube defect, the social conditions and surrounding environment, the ﬁ nancial conditions of the woman, the lack of family or social support and the fact that the woman would be once again at the mercy of the dismal government institutions − the Court said that “the victim cannot be said to have consented for retention of the pregnancy” and that she “deserves to be liberated from this agonising responsibility which has been forced upon her.” In conclusion, the Court said “we have no reason to doubt that the continuation of the pregnancy shall constitute a grave injury and may lead to more deterioration in the mental health of the victim.” Accordingly, medical termination of pregnancy was ordered. Article 6 requires a State to take measures to ensure that women with disabilities enjoy all human rights and fundamental freedoms and take appropriate measures to ensure the full development, advancement and empowerment of women. Article 12 of the UN Convention on the Rights of Persons with Disabilities, recognises that persons with disabilities enjoy legal capacity on equal basis with others in all aspects of life and requires the state to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. Article 23 recognises the rights of the persons with disabilities to decide freely regarding children. The Article also recognises that a child should not be separated from her parents against her will and that the State is required to provide alternative care in circumstances where the woman is unable to care for the child. State is also required to render assistance to persons with disabilities in the performance of their child rearing responsibilities. Despite these provisions, even after the rape was reported widely in the media and the case

|116 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE proceeded on a day-to-day basis, no organisation came to the assistance of the woman. She was provided no assistance whatsoever. She was given no support at any time. A mentally challenged woman, under the UNCRPD, has a right to multiple choices. She has the right to abort a child. She has the right to continue with her pregnancy. In taking this decision she has to be supported and assisted by the State. That support and assistance must come prior to the 20 week cut-off date beyond which abortions are not legally safe in situations where the life of the mother is in jeopardy. It is difﬁ cult to hazard a guess about what she intended to do, given the fact that she was provided with no assistance or support of any kind. Had she been provided with the same, the woman may have been able to take an informed decision to abort or to continue with the pregnancy. The Punjab & Haryana High Court ultimately went on the basis of the reports of the numerous committees which concluded that “the continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortion…pre-maturity… foetal distress and more chances of operative delivery including anaesthetic complications.” The committees concluded that, “she has adequate physical capacity to bear and raise the child but that her mental health can be further affected by the stress of bearing and raising her child.” This case has thus raised fundamental issues relating to consent and to the support required while assessing consent. Eventually, most mentally challenged women will, if properly supported and assisted, be able to indicate consent to either abort or to proceed with the pregnancy.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |117 THE SORRY STATE OF ARV

hen the Voluntary Health Association of Punjab (VHAP) fi led a writ petition in the Supreme Court in 2003 seeking directions to provide the anti-retro viral (ARV) drug to all people Wliving with HIV (PLHA) whose CD4 count had fallen less than 200, the organisation could scarcely imagine the reaction that was to follow. The petition, quoted from the South African Constitutional Court and the Supreme Courts of many South American countries, said that poor people are entitled, under the Right to Life articles of the various Constitutions, to free ARV treatment. When the petition was fi led, the policy of the Government of India was to provide only for drugs to combat opportunistic infections (OIs) such as TB. The Government of India was adamant that no money be provided for ARVs In short, the policy was more than reconciled to the fact that untreated people would die en masse. A crisis was created within government when the Supreme Court directed the Union to fi le an affi davit putting on record its policy on ARV treatment. After much prevarication, Sushma Swaraj, the then health minister suddenly announced that the central policy had changed. Henceforth, she said, the government would begin providing ARVs I cannot help but feel that the insistence of the Supreme Court, that the central government put on record its stand, had a role to play in this sudden reversal. The government then made a pretence of providing ARVs Realising that the change in policy was only on paper, the VHAP called a national consultation in Chandigarh where positive people, from all over the country, recounted their woes. The data, coming in from various states, makes depressing reading. According to the government, there are fi ve million persons who are HIV positive. Normally, about 10 percent of the positive population would have a less than 200 CD4 count and would therefore require ARVs In India this would come to 500,000 persons needing the drug. It is truly shocking that the central government, according to its own statistics, is providing the drug to only 32,000 persons! This is 1/3rd of the government’s target of covering 100,000 persons by the end of 2006. The government’s target for 500,000 people is the year 2010. If we go by this, more than 200,000 people will die without treatment. A country, which considers itself an economic superpower, can reconcile itself to letting people die without treatment. The VHAP report shows that − in the states of West Bengal, Madhya Pradesh and Rajasthan − there are only two ARV rollout centers for the entire state. Of 20,000 positive persons in West Bengal, only about 1000 received the drug; a much higher percentage of persons have discontinued medication and are no longer traceable. In Madhya Pradesh, out of the 2,500 persons needing the drug, only 940 are reported to be getting treatment. Even more worrying is the fact that in

|118 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE

April 2006 there was a 20 day break in supply, as a result of which many developed resistance to treatment. In Rajasthan, out of the 6,300 persons needing the drug, only 700 received treatment. The dropout rate was reportedly very high, particularly, among widows. Orissa, with 3,961 positive people, does not have a single ARV centre. Delhi reported the discontinuation of medication by 645 persons due to lack of follow-up care, giving rise to a very serious situation as resistance builds if treatment is discontinued. Positive people, from all states, complained that, since the majority of positive people were poor, they had to choose between buying food or paying for the treatment. Persons had to travel hundreds of miles each day to reach the ARV centre only to be told that they had to wait for a couple of days for the tests to be conducted or to get the drug. Accommodation facilities are not available anywhere. Traveling expenses are prohibitively expensive. In the circumstances, it is cheaper to buy drugs from the market. Reports indicate that more than half of the population relies on private purchases because they have no choice in the matter. In response to criticism, relating to the sorry state of treatment, NACO claimed that drugs were more than available but the people were not coming forward to take them. The VHAP report however clearly establishes that people have not the foggiest idea about drugs being available free through public hospitals. Should the government advertise aggressively − on TV, radio and the press − tens of thousands of persons will turn up for treatment. The provision and facilities, for tests and reports, is as dismal. Goa, Madhya Pradesh, Himachal Pradesh, West Bengal, Haryana and Nagaland have only one CD4 count machine for the whole state. Goa will not conduct tests without an identity card. Madhya Pradesh charges Rs. 500 per test and the operator often says that the machine is unreliable and urge persons to go to a private hospital. The same is the situation in Himachal Pradesh where persons are encouraged to send blood to Hyderabad, at a cost of Rs. 1,850, for a test that ought to be free. West Bengal, Chandi- garh and Haryana also charge Rs. 500. In Nagaland, the machine is operated only on Tuesdays and Thursdays. Even in the nation’s capital the situation is grim. Safdarjung and NICD charge Rs. 500. AIIMS charges Rs. 800. In Ram Manohar Lohia Hospital, the waiting period is upto that of two months. None of the states had the resistance test machines. Where has all the money gone? There are disturbing reports indicating that there is abundant money available but the money is usually misused. The VHAP report concludes that a testing facility with a CD4 count machine, councillors who are positive and a rollout centre should be established in every district. According to them, the deadline should be end 2007. The central government’s deadline of 500,000 people, on the drug by 2010, not only condemns over 200,000 positive people to their death but also overlooks the fact that, by 2010, as many as 300,000 positive persons would need ARVs.

–HIV/AIDS & the Law 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |119 DRUG PRICES SET TO SOAR

eports in the newspapers that the new Drug Price Control Order was likely to be tabled in the Monsoon Session, removing as many as 39 bulk drugs and their formulations from Rprice control, came as a surprise to many, as the Common Minimum Programme specifi - cally promises that the “UPA Government will take all steps to ensure availability of life savings drugs at reasonable prices.” The alacrity with which the pharmaceutical industry is trying to push through this policy indicates that the MNC stranglehold continues under the present government as well. The move is also contrary to the order of the Supreme Court in Union of India vs KS Gopinath where the Court, on March 10, 2003, made an order: “we direct that the Petitioner shall consider and formulate appropriate criteria for ensuring essential and life saving drugs not fall out of price control.” In 1955, the Essential Commodities Act (ECA) was passed to control the production, distribution and prices of essential commodities including drugs. In 1963, under the Defence of India Act, Drug Price Control Orders (DPCO) were authorised. These orders were aimed at curbing profi teering, promoting R & D and bringing down prices. In 1974, the ECA was amended to increase drug pricing. In 1979 DPCO, 347 drugs were under price control. In 1987 DPCO, the number of drugs under price control fell to 142. In 1995 DPCO, this number fell to 76. In the meanwhile WHO identifi ed the major components of a National Drug Policy as including drug pricing, use of generic drugs and exclusion of drugs from patent protection. In April 2003, WHO released the “Model List of Essential Medicines.” Following this, the health ministry also released the “national list of essential medicines.” Out of this list of 354 medicines, only about 35 drugs are expected to fall within price control. The stage is now set for a catastrophic boom in drug prices. There is a public health crisis in India of unimaginable proportions. India accounts for 30 percent of the world’s TB cases; has the second highest number of HIV cases; one-third of the world’s leprosy cases; 19 crore illness episodes of diarrhea per year in the under-5 population (which accounts for one-third of these mortalities); and has registered a steep rise in non-communicable diseases like diabetes, hypertension, heart disease and cancer. More than six crores of the Indian population is suffering from hypertension and diabetes. This exceeds the population of many European nations. The National Health Policy 2002 characterised “the public health infrastructure as far from satisfactory, equipment is often obsolete and unusable, availability of essential drugs is minimal, buildings are dilapidated, facilities grossly inadequate, leading to steep deterioration in the quality of service. As a result, it has been estimated that less than 20 percent of the population avail of services in public hospitals. This despite the fact that most patients make payments for |120 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HEALTHCARE private health services at the cost of basic nutrition.” India’s public expenditure on health is one of the lowest in the world. The government spends a mere 17 percent of the total health budget on the public health system as against 97 percentin UK; 44 percent in USA; and 46 percent in Sri Lanka. Anaemia is prevalent in 74 percent of children and 56 percent of women, yet ferrous sulphate and folic acid are not under price control. TB results in fi ve lakh deaths every year with rural patients paying Rs.1000 every month on treatment, yet the TB drugs, ethanbutol and pyrazinamide, are not under price control. So is the case of quinine and primaquinine required in the treatment of malaria; zidovudine, lamivudine, nevirapine and indinavin for HIV; oral rehydration salts for diarrhea; dapsone and clofazimine for leprosy; diethylcarbamazine citrate for fi laria; atenolol, enalapril, hydrochlorthi- azide and amlodipine for hypertension; glyceryl trinitrate, isosorbide dinitrate, beta blocker and calcium blocker for heart disorders; benzathine penicillin for rheumatic fever (the commonest form of heart disease in the young in India); vaccines for rabies and hepatitis; cancer drugs; sera for tetanus and diphtheria; paracetamol for fever and anti-convulsants. None of these medicines are under price control though they fi nd mention in the list of essential medicines. On the other hand, at least 11 drugs − which are non-essential, outdated and hazardous are listed under price control. Analgyn, for example, can cause serious blood disorders and is banned in many countries yet is listed as essential and comes under price control. Extensive studies carried out by the All India Drug Action Network – a non-profi t organisation of doctors and public health specialists – showed a shocking overpricing of essential drugs. Market competition appears to have little effect on reducing prices. Sales of medicines depends not on market competition but on prescriptions. With aggressive and unethical marketing practices it is not surprising that the costliest drug, in a range of equivalent drugs, is invariably the top seller. Thus prices continue to climb steeply as the Indian market is fl ooded with 60,000 drug formulations many of them irrational, unsafe or of little therapeutic value. Compare this with the WHO list of 325 essential drugs needed in any country. Price control is routine throughout the world except the United States. Canada has the Patented Medicines Price Review Board. France has its Transparency Commission and Economic Commit- tee on Medicines. Egypt has all drugs under price control. Italy has restricted wholesale margins. Germany has a reference pricing system. Japan has a system of price monitoring and regulation. The same is true of Netherlands, China, Indonesia and Columbia. While the health ministry declared the 2003 list of 354 essential medicines, the authority which decides prices is – hold your breath – the ministry of chemicals and fertilisers! Manipulated by the powerful pharmaceutical industry, this ministry has little concern for health. This is why the National Health Policy 2002, framed by the ministry of health and imbued with a public health perspective, is strikingly at odds with the Pharmaceutical Policy 2002, (PP-02) drafted by the ministry of chemicals and fertilisers, which is utterly devoid of any public health perspective. PP-02, from its introduction to its end, has a one-point agenda − that of private profi t for the pharmaceutical industry.

–Combat Law February-March 2009 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |121

ENVIRONMENT FOUR CHAPTER

1. The Bhopal Catastrophe: Politics, Conspiracy and Betrayal 2. Whither Human Rights 3. Ban Asbestos Now Courtesy: Internet

The inability of the Supreme Court to stand ﬁ rm and side with the people of India against UCC and the USA Government left many Indi- ans confused and frustrated. The long line of decisions starting from 1989 ultimately left them bitter.

|124 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE BHOPAL CATASTROPHE POLITICS, CONSPIRACY AND BETRAYAL

he paltry payments made to the victims, the escape of the chairman of the Union Carbide Corporation (UCC), Warren Anderson on a government plane, the neglect of the babies born Tsubsequently with terrible deformities and ailments, the inability of the State to clean the contaminated soil, the petty sentences rendered and the 26 long years in the trial court, all seem separate instances which, though regrettable, are treated as issues of governance and not one of politics, conspiracy and betrayal. Let us not look at the past, we are advised, let us look to the future to ensure that such an incident does not take place again. But unless we understand the treachery of the past, it is impossible to change things for the future. Indira Gandhi’s death and the appointment of Rajiv Gandhi as Prime Minister of India marked the end of the era of the Indian version of social democracy started by Jawaharlal Nehru and the beginning of American-style globalisation. Rajiv Gandhi started off well with Ronald Reagan, the then President of the United States. It is said that the understanding between these two leaders ultimately led to the pitiable settlement being agreed to by India, the quashing of all criminal liability and the removal of Anderson from Indian soil. The then Madhya Pradesh Chief Minister, Arjun Singh, naturally, will be made the scapegoat as if decisions of this magnitude could be taken without the Prime Minister’s approval. In the power play of the globalised politics, all this is understandable, though it may make us angry. But the inability of the Supreme Court of India to stand fi rm and side with the people of India against UCC and the Government of the United States of America (USA) left many Indians confused and frustrated. The long line of decisions starting from 1989 ultimately left them bitter. It was in the interests of the victims to have the cases tried in the US where substantial damage would have been awarded. In the Exxon Valdez oil spill case, where no one died, $507 million was awarded. In the Vioxx drug case, where 47,000 consumers suffered heart attacks, strokes or death, $4.85 billion was paid on an average of $103,000 per plaintiff. In asbestos litigation, jury verdicts range anywhere from $1 million to $20 million in compensation per person. In the Lockerbie bombing case, Libya paid $2.7 billion or $10 million per family. Legal luminaries fl ocking to represent Dow Chemical was understandable. Nani Palkhivala made a strenuous attempt by fi ling affi davits in the US courts to have the litigation brought to India. The then Attorney General, Soli Sorabjee, argued against giving the victims a hearing and justifi ed the quashing of criminal proceedings. What was inexplicable was the attitude of the Judiciary. In Feb- ruary 1989, in a cryptic three-page order containing no reasons, the Supreme Court accepted the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |125 CHAPTER FOUR settlement of $470 million as “just, equitable and reasonable” and quashed all criminal proceedings. In May, reasons were given as an afterthought. Chief Justice RS Pathak then resigned on being nominated by India to the World Court at The Hague. After indignant protests in the country, in 1991, the Supreme Court reinstated the criminal proceedings. In 1996, in a decision likely to have far-reaching consequences, the Supreme Court quashed the charges of culpable homicide not amounting to murder and voluntarily causing grievous hurt and introduced the criminal negligence charge carrying a maximum sentence of two years. The hands of the trial court were tied. It is now up to the present Chief Justice of India to right this historic wrong. Background On the night of December 2, 1984, there was a massive leak of methyl isocyanate (MIC), a highly toxic gas which resulted in the death of 20,000 persons and disablement of more than 2,00,000 persons.1 The gas affected not only those living but even the generations that came thereafter. As a result of a high-level conspiracy between UCC, the US Government, the Government of India and Government of the State of Madhya Pradesh, Warren Anderson was secretively taken away from Bhopal on a government plane and allowed to leave the country. Thereafter, 3,500 cases were fi led by victims claiming damages of a total of $150 billion. These claims were made on the pleading that the UCC Corporate Policy Manual, testimonies available and documents gathered demonstrated “pervasive decision-making presence of UCC in all vital matters relating to the location of the plant, the designing of the plant, the production and storage of ultra hazardous substances, toxic chemicals and gases, the designing of safety systems and the monitoring of the accidents review of the operational safety systems.”2 Later, Morehouse and Subramanian did a sophisticated analysis of compensation and rehabilitation costs and worked these out to about $4 billion.3 Litigation in USA The Union of India fi led a suit on April 8, 1985 in the US District Court (Southern District of New York) against UCC for compensation and punitive damages. Earlier, on February 20, 1985, Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 purporting to speedily, effectively and equitably securing all claims arising out of the Bhopal gas leak. UCC then fi led a motion to dismiss the Union of India’s suit pursuant to the doctrine of forum non conveniens. In this, Nani Palkhivala fi led an affi davit in the American Court saying that the In- dian courts were competent to effectively handle tort litigation of this magnitude. Marc Galanter, a leading US scholar on the Indian legal system, fi led an affi davit to the contrary. Palkhivala was wrong then and was proved wrong by subsequent developments in the Indian courts. Marc Galanter’s stand was vindicated. Palkhivala said that there was “no doubt that the Indian Judi-

1 See Ward Morehouse and M Arun Subramaniam, The Bhopal Tragedy: A Report for the Citizens Commission on Bhopal (Council on International and Public Affairs, New York, 1986). 2 Mass Disasters and Multinational Liability: The Bhopal Case, prepared by Upendra Baxi and Thomas Paul under the auspices of the Indian Law Institute (Bombay: M N Tripathi, 1986), p iv. 3 Ibid, p 2. |126 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT cial System can fairly and satisfactorily handle the Bhopal litigation.”4 “The charge of inordinate delays” he said, “is wholly inapt and inapplicable as regards the Bho- pal case.”5 He was confi dent that “the unprecedented Bhopal case will receive unprecedented treatment in India.”6 He ended with a demeaning and degrading observation that the “$9.5 billion which I believe represents that total aid given by the US to the Indian Republic over the last 35 years is exceeded by the aggregate claims made on behalf of the Bhopal victims.”7 Marc Galanter argued in his affi davit8 that India “has only incompletely emerged from the herit- age of colonial rule…the Indian system is characterised by massive backlogs of cases and enormous delays… (which) can be considered a permanent feature of the Indian system…tort law in India is undeveloped…(and of the few tort cases) none deal with the problems arising from complex technologies…the Bar in India does not presently possess the pool of skills, the fund of experience or the organisational capacity to effectively and effi ciently pursue massive and complex litigation…and the Indian legal system contains a paucity of devices to promote timely resolution of complex cases.” On May 12, 1986 federal Judge John F Keenan allowed the application of UCC but imposed three conditions: (1) That UCC shall consent to the jurisdiction of the courts of India and shall continue to waive defences based on the Statute of limitation; (2) That UCC shall agree to satisfy any judgement rendered by an Indian Court against it and if applicable, upheld on appeal, provided the judgement and affi rmance “comport with minimal requirements of due process”; and (3) That UCC shall be subject to discovery under the Federal Rules of Civil Procedure of the US after appropriate demand by the plaintiffs. UCC fi led an appeal before the US Court of Appeal for the Second Circuit, and the Appellate Court set aside the second and third condition. In the Bhopal district court In the meanwhile, on September 5, 1986, Union of India fi led a suit for damages in the district court of Bhopal being regular suit no 1113 of 1986. In that suit, UCC gave an undertaking to preserve and maintain unencumbered assets to the extent of $3 billion. Pursuant to this undertaking, the district court lifted the injunction against UCC’s selling assets. This perhaps was a mistake we will come to regret. On December 17, 1987, the district court ordered interim relief of Rs 350 crore. This was reduced by the High Court on April 4, 1988 to 250 crore. In the meanwhile, a chargesheet was fi led under Sections 304, 324, 326, 429 read with Section 35 of the Indian Penal Code (IPC) against Warren Anderson and others.

4 Ibid, p 225, 228. 5 Ibid, p 228. 6 Ibid. 7 Ibid, p 229. 8 Ibid, p 162. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |127 CHAPTER FOUR

SC and the victims On February 5, 1989, in a cryptic three-page order containing no reasons at all, a Constitutional Bench of the Supreme Court of India, headed by the then Chief Justice RS Pathak quashed “all criminal proceedings related to and arising out of the disaster.” Without any discussion on the “mass of data” placed before the Supreme Court and the extensive pleadings fi led by the parties, the Supreme Court abruptly closed the case with the observation: “We are of the opinion that the case is pre-eminently fi t for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster.” The Supreme Court found the settlement sum of $470 million “just, equitable and reasonable.”9 A couple of months later, the Supreme Court woke up to the need to provide reasons for its rather dismal decision. On May 4, 1989, reasons were set out in a separate decision.10 It was “the compelling need for urgent relief” which prompted the Court to make the initial order; UCC, through counsel, offered $350 million. “Shri Nariman stated that his client was of the view that the amount was the highest it could be up to.” The Attorney General of India “submitted that any sum less than 500 million US dollars could not be reasonable.” The victims were excluded from these proceedings. In this casual, perfunctory manner, the fi nal compensation package was decided. It may be remembered that in the Exxon Valdez oil spill case, the jury awarded $2.5 billion which was later reduced by the Supreme Court of the US to $507 million. Moreover, no one died in this case. Perhaps more comparable is the 2008 Merck & Co Inc case which settled claims by 47,000 consumers who suffered heart attacks, strokes, or death from using the pharmaceutical product Vioxx. The company agreed to pay $4.85 billion, representing an average of $1,03,000 per plaintiff. An even larger public health disaster in the US has been the use of asbestos as an insulation material. Asbestos exposure has been proven to cause mesothelioma, a rare and deadly form of lung cancer. In asbestos litigation, jury verdicts can range anywhere from $1 million to $20 million in compensation per plaintiff. However, where a settlement is reached, these amounts are substantially lower. Legal analysts have estimated that asbestos litigation in the US has cost over $250 billion and has involved more than 7,30,000 plaintiffs. The 1988 bombing of Pan Am Flight 103, or “the Lockerbie bombing”, is another example of a large class action settlement. In a private agreement reached in May 2002, Libya committed to pay approximately $2.7 billion to resolve wrongful death claims by the families of those killed, representing $10 million per family. Sadly, there is no reference in the Supreme Court order to any international norm or standard or practice regarding damages, paid in similar or comparable circumstances. The calculations done by the Supreme Court show that it compared the Bhopal disaster with motor accident cases. “It is well known”, said the Supreme Court, “that in fatal accident actions where children are concerned, the compensation awardable is in Conventional sums ranging from Rs 15,000 to Rs 30,000 ($500 in 1989).” The Court then awarded Rs 2 lakh ($4,000) in each case of death and total permanent disability and rupees one lakh ($2,000) in each case of permanent partial

9 1989 1SCC 674. 10 1989 3SCC 38. |128 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT disablement. This judgement ends prophetically with the sentence “those who trust this Court will not have cause for despair.”11 Apart from the paltry amounts awarded, the hurtful part of the decision was the quashing of all criminal cases. The ‘constitutional’ act On December 22, 1989 the Constitutional Bench of the Supreme Court in Charanlal Sahoo vs Union of India12 looked into whether the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the Bhopal Gas Leak Disaster (Registering and Processing of Claims) Scheme, 1985 were constitutionally valid. The Court decided to look into whether “the act has been worked in any improper way.”13 The Supreme Court upheld the right of the Union Government to be the sole representative of the victims even to the exclusion of the victims themselves. Reference was made to the parens patriae doctrine which obliges the state to protect its citizens. But the Court failed to recognise that the Union of India was, on the contrary, colluding with UCC and compromising the interests of the victims. After observing that “if the victims had been given an opportunity to be heard, they would, inter alia, have pointed out that the amount agreed to be paid by UCC was hopelessly inadequate and that UCC, its offi cers and agents ought not to be absolved of criminal liability, and that the central government itself was liable to have been sued as a joint tort-feasor,”14 the Supreme Court inexcusably upheld the exclusion of the victims, on the specious argument that “no useful purpose would be served by giving a post decisional hearing…having regard to the fact that there are no further additional data and facts available with the victims which can be profi tably and meaningfully presented to controvert the basis of the settlement.”15 This was entirely incorrect because as revealed subsequently, there was a gross underestimation of the number of deaths and injuries and the lasting nature of the ill effects of the gas leak on individuals, livestock and the environment. Therefore, said the Supreme Court: “though settlement without notice is not quite proper to do a great right after all it is permissible sometimes to do a little wrong.”16 To meet the argument repeatedly made that the Union of India was a joint tortfeasor as, inter alia, its agency and instrumentalities (the Life Insurance Corporation and others were shareholders in Union Carbide of India Ltd – UCIL), and that the plant was permitted to operate by the Indian authorities close to a heavily populated area, the Supreme Court brushed aside these objections holding that “the circumstances that fi nancial institutions held shares in the UCIL would not disqualify the Government of India from acting as parens patriae.”17 The Supreme Court recognised that “perhaps, theoretically, it might have been possible to constitute another independent statutory body…entrusted with the task of agitating or establishing the same claims.”18 The

11 add. 12 1990 1 SCC 613. 13 636. 14 655. 15 707. 16 705. 17 675. 18 693. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |129 CHAPTER FOUR

Court observed that “the question whether there is scope for the Union of India being responsible or liable as a joint tortfeasor is a diffi cult and different question. But even assuming that it was possible that the central government might be liable in a case of this nature, the learned attorney general was right in contending that it was only proper that the central government should be able and authorised to represent the victims.”19 The then Attorney General, Soli Sorabjee, made a series of unfortunate submissions, urging “that the allegation that a large number of victims did not give consent to the settlement entered into, is really of no relevance…”20 Hearing the parties after the settlements would also not serve any purpose…21 “Quashing of criminal proceedings was done by the Court in exercise of plenary powers under articles 136 and 142 of the Constitution.”22 On the quantum of damages, though the Supreme Court recognised “that the measure of compensation in these kinds of cases must be correlated to the magnitude and capacity of the enterprise…not on the basis of actual consequences suffered … because such compensation must have a deterrent effect,”23 nevertheless the Court concluded “we are of the opinion that justice has been done to the victims.”24 The majority decision ended on an ominous note with the Supreme Court referring to “the atmosphere that was created in the country”. “Attempts were made”, said the Supreme Court, “to shake the confi dence of the people in the judicial process and also to undermine the credibility of this Court. This was unfortunate… the credibility of the Judiciary is as important as the allevia- tion of the suffering of the victims…we hope these adjudications will restore that credibility.”25 In a separate concurring decision, justice KN Singh warned that “if the act was declared unconstitutional, the settlement under which the UCC has already deposited a sum of Rs 750 crore… would fall and the amount of money which is already in deposit with the registry of this Court would not be available for relief to the victims.”26 This was a patently wrong conclusion. Even if the settlement was set aside, it was open to the Supreme Court to impound the amount deposited by a way of interim payment for the victims. The whole tenor of this decision suggests an unwarranted helplessness on the part of the Supreme Court, fi rstly, because “it is diffi cult to foresee any reasonable possibility of the acceptance of…the observations made by this Court in MC Me- hta’s case27 (according to which damages) would be much more than normal damages… (and) must be computed on the basis of the capacity of a delinquent made liable to pay.”28 A second unwarranted observation was made to the effect that if the government did not assume monopoly

19 695. 20 673. 21 674. 22 677. 23 685. 24 705. 25 707. 26 709. 27 1987 1SCC395. 28 704. |130 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT of the litigation the victims would be helpless to proceed. “Because of the situation” said the Supreme Court, “the victims were under disability in pursuing their claims.” Thus, the tenor of all the Supreme Court judgements is to the effect that the Government of India and the Judiciary were doing the victims a favour by acting on their behalf in the manner in which they did. The notion that the victims were incapable of acting on their own was wrong then, and, with the rich experience of history, has been proved totally wrong even today. Many non-governmental organisations (NGOs) gathered around, collecting extensive data which the State of Madhya Pradesh and Union of India refused to look at. Many lawyers both in India and America offered their services pro bono to support the victims. Suits were meticulously drafted and had they been allowed to proceed evidence would have been elaborately led to establish the claims of the victims against UCC, UCIL, Union of India and State of Madhya Pradesh. All that the Supreme Court had to do was to ensure that the cases proceeded on a fast track and that all technical impediments and objections were brushed aside. Instead of this the State of Madhya Pradesh, the Union of India, Union Carbide and the government of US entered into unholy alliance to undermine and sabotage the efforts of the victims to obtain compensation comparable to the damages awarded in similar mass tort actions in the US and to have the accused prosecuted speedily in India. Instead of seeing through this unholy alliance, the Supreme Court let down the people of Bhopal by clearing a settlement that was patently paltry and by allowing the litigation in the trial court to drag on for 26 years. Returning to the concurring but separate decision of justice KN Singh, a pious sermon on the role of multinational and transnational corporations follows. “Multinational companies in many cases exploited the underdeveloped nations and in some cases they infl uenced political and economical policies of host countries which subverted the sovereignty of those countries. There have been complaints against the multinationals for adopting unfair and corrupt means to advance their interests in the host countries.”29 Referring to the UN Code of Conduct on Transnational Corporations, justice KN Singh held that “a transnational corporation should be made liable and subservient to laws of our country and the liability should not be restricted to the affi liate company only but the parent corporation should also be made liable for any damage caused to the human beings or ecology. The law must require transnational corporations to agree to pay such damages as may be determined by the statutory agencies and forums constituted under it without exposing the victims to long drawn litigation.”30 Justices S Ranganathan and AM Ahmadi made a separate decision partly dissenting regretting that the Supreme Court had put an end to all litigation without fi rst considering the issue of validity of the Statute. The court found it “unfortunate”31 that though the writ petitions impugning the act were pending before the Supreme Court these petitions were not decided and the settlement was approved and all the litigation closed in the 1989 decisions of the Supreme Court. The court then found itself “in somewhat of a predicament32 as it has to pronounce on the validity of the provisions of the Act in the context of the implementation of its provisions in a particular manner and, though we cannot express any views regarding the merits of the settlement, we are

29 712. 30 713. 31 715. 32 715. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |131 CHAPTER FOUR asked to consider whether said settlement can be consistent with a correct and proper interpretation of the Act.”33 Then in a startling display of unawareness of the principles of natural justice, particularly in the context of mass tort actions, justices Ranganathan and Ahmadi compared the situation to a Karta of a Hindu undivided family. The Union of India in its parens patriae position qua the victims was similar to that of a Karta qua the junior members of a family who “are not to be consulted before entering into a settlement!” Scolding the victims The two judges then went on to berate the victims and their supporters for being “apparently not alert enough to keep a watching brief in the Supreme Court.”34 Despite the vehement protests repeatedly made regarding the paltry amount of the settlement, which were carried in the national media, the two judges assert: “no attempt appears to have been made to put forward a conten- tion that the amount of settlement was inadequate!”35 Then comes the most startling statement that “there was a day’s interval between the enunciation of the terms of the settlement and their approval by the Court.”36 By this, the Court meant that 24 hours after the disclosure of the terms of the settlement was adequate for persons to protest and the approval given by the Court a day after the disclosure of the settlements was justiﬁ ed. All in all, a reading of the majority decisions and the two minority decisions show how out of touch the Supreme Court was with the suffering, grievances and demands of the victims and how the Court proceeded quite regardless of the views expressed on behalf of the victim families. Restoring the criminal cases Once again “a hue and cry was raised against the settlement by victim groups.”37 “Consider- able heat was generated throughout the Court hearing and the press was also none too kind on this to Court.”38 A series of review petitions were ﬁ led in the Supreme Court once again seeking a “Fairness Hearing,” inclusion of additional victims in the list of persons to be compensated, higher compensation amounts and the restoration of the criminal cases. The Supreme Court noticed the pleadings to the effect that the “toll of lives has since gone up to around 4,000 and the health of tens of thousands has come to be affected and impaired… though it was initially assumed that MIC caused merely simple and short-term injuries…it has now been found by medical research that injury… is to the entire system including nephrological lymphs, immune and circulatory systems… and has mutagenic effects and that the injury… is progressive… Indeed the effects of exposure of the human system to this toxic chemical have not been fully grasped. Research studies seem to suggest that exposure to these chemical fumes renders the human physiology susceptible to long-term pathology and the toxin is suspected to lodge itself in

33 715. 34 726. 35 726. 36 726. 37 1991 4 SCC 584. 38 693. |132 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT the tissues and cause long-term damage to the vital systems… The potential risk of long term effects is presently unpredictable.”39 Despite this the Court concluded that “as of now, medical documentation discloses that there is no conclusive evidence to establish a causal link between cancer incidence and MIC exposure.”40 The Court then noticed the pleadings in the review petitions to the effect that UCC, holding 50.9 shares in UCIL, “retained and exercised powers of effective control over its Indian subsidiary in terms of its corporate policy.”41 The plea was that UCC established and maintained the Bhopal chemical plant “with defective and inadequate safety standards which compared with designs of UCC’s American plants, manifested an indifference and disregard for human safety.”42 Despite this, the Court warned that the settlement ought to be accepted as “we should not proceed on the premise that the liability of UCC has been fi rmly established.”43 Thus the whole approach of the Court was pessimistic and diffi dent. The Court appeared unsure as to the liability of the UCC and the connected inability of UCIL to pay substantial damages. The positive aspect of this decision was the direction to restore the criminal prosecution in the following terms: we hold that no specifi c ground for withdrawal of the prosecutions having been set out the quashing of the prosecutions requires to be set aside…The memorandum of settlement… leaves no manner of doubt that a part of the consideration for the payment of $470 million was the stifl ing of the prosecution and, therefore, unlawful and opposed to public policy. Then the Court rejected the “fairness hearing” argument as well as the argument that the settlement was vitiated because it did not contain a “re-opener” clause to take into consideration those injuries that were not anticipated earlier. This conclusion came after the Court admitted that: what was transacted with the Court’s assistance between the Union of India on one side and the UCC on the other is now sought to be made binding on the tens of thousands of innocent victims who had a right to be heard before the settlement could be reached or approved… Any paternalistic condescension that what has been done is after all for their own good is out of place.44 Dealing with the argument that, if the settlement were to be set aside, the money deposited would have to be returned to UCC, the Supreme Court held that while this may be true, UCC would be required to abide by the earlier interim order requiring UCC to maintain unencumbered assets of the value of $3 billion during the pendency of this suit. The Supreme Court also directed the Union of India to stand guarantee to make up the defi cit in case the settlement sum deposited proved for any reason to be inadequate. Justice Ahmadi wrote a dissenting judgement. “I fi nd it diffi cult to persuade myself to the view 39 612. 40 677. 41 614. 42 614. 43 677. 44 670. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |133 CHAPTER FOUR that if the settlement fund is found to be insuffi cient, the shortfall must be made good by the Union of India.”45 In May 1996, a public interest petition was fi led in the Supreme Court on behalf of the victims complaining that from 1994 onwards instructions were issued to the deputy commissioners adjudicating claims not to continue with the adjudication and to direct all claimants to go to the Lok Adalats. The grievance was made that since adjudication has come to a grinding halt the victims were compelled to go to the Lok Adalats where “payments were restricted to the bare minimum of Rs 25,000 in a large number of cases.”46 Quashing the charges In September 1996, a Bench of the Supreme Court quashed the charges against the accused persons47 overriding the submissions of the Additional Solicitor General appearing for the Union of India who submitted that “there was ample material produced by the prosecution which clearly indicated that all the accused concerned shared common criminal knowledge about the potential danger of escape of the lethal gas.”48 Such was also the fi nding of the Vardarajan Committee, which was appointed by the Government of India to look into the causes of the accident. The evidence on record showed: that these accused even though stationed at Bombay shared the criminal knowledge of the other personnel of the company who were actually handling the Bhopal plant… had criminal knowledge regarding the defective working of the plant and…were no longer interested in its safe keeping…(so that) no remedial steps were taken.49 Without going into the extensive evidence on record pointing in the direction of criminal culpabil- ity the Supreme Court quashed charges under 304 Part II (culpable homicide not amounting to murder which is attracted if the act done is with the knowledge that it is likely to cause death but without any intension to cause death), 324 (voluntarily causing hurt) and 326 (voluntarily causing grievous hurt) IPC. These sections were quashed on the questionable reasoning that there was no evidence on record to show that the accused had knowledge “on that fateful night” that “they were likely to cause death.”50 This phrase “on that fateful night” is found repeatedly in the judgement. What the Court is saying therefore is that although the accused generally understood that they were storing a highly toxic chemical in an inappropriate manner and in a dangerously defective plant and knew generally that the leakage of gas could cause death nevertheless they were liable to be exonerated of these charges because there was no evidence to show that they knew that the gas was likely to leak “on that fateful day” causing death. After quashing all the charges thus, the accused would have been discharged. To avoid this, the Supreme Court introduced the charge of criminal negligence under Section 304-A.

45 690. 46 2000 10 SCC 507. 47 1996 6 SCC 129. 48 140. 49 154. 50 157. |134 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT

The decision of CJM, Bhopal By order and judgement dated June 7, 2010, the trial court convicted all the accused persons under Sections 304-A, 336, 337 and 338 r/w Section 35 of the IPC, 1860 and sentenced them to two years imprisonment and a fi ne of Rs 1,00,000 each. The trial court noticed that industrial licensing related to pesticides was granted by the director general of technical development. Licences were provided by the industrial department of the ministry of chemicals and fertilisers, Government of India for manufacturing 5,000 tons of MIC- based pesticides. The Government of India also approved a foreign collaboration between UCIL and UCC on the assurance given by UCC “that the company have technical knowledge of several years of manufacturing MIC in USA successfully.”51 UCIL acquired the Bhopal plant from UCC, US, which was 50.9 percent shareholder in the company. A design and transfer agreement and a technical services agreement were entered into between the two companies. The Court records that “both these agreements categorically record that UCC was a global leader in the fi eld of MIC based pesticides having been engaged in this fi eld for many decades prior to these agreements. The accused company made every effort to acquire the best possible technology and design that was then available.” The whole technology was imported from UCC, US.52 The entire plant was set up by the UCC personnel under control and supervision and start up procedure was done by Warren Woomer, who is a specialist in MIC.53 This is how the manufacture of MIC started at the Bhopal plant in 1979. The Court also noted that “in 1980s an American, Warren Woomer came to India and remained here for two years in the capacity of general works manager.”54 The Court elaborately set out the “major design defects brought to the notice of the Court.”55 Also that “the problem was made worse by the plants’ location near a densely populated area, non- existent catastrophe plants and shortcomings in healthcare and socio-economic rehabilitation,”56 and concluded that the parties responsible for the disaster were UCC, Government of India and Government of Madhya Pradesh.57 The Court found that there was a storage failure in that huge quantities were stored with all the safety systems “either out of order or shut down.”58 MIC is required to be stored preferably at zero degree centigrade, but the Court found that the refrigeration system had been closed down and that “the directions for shut down was given by the Production Manager, SP Choudhary and by Warren Woomer, overall in-charge of the plant.”59 The Court also found that the Vent Gas Scrubber and Flare Tower were not in working order and were “kept shut down.”60 “No explanation is there on the part of the accused persons why it was kept shut down/

51 State of Madhya Pradesh through CBI vs Sir Warren Anderson; in the Court of the Chief Judicial Magistrate, Bhopal, MP; Criminal Case No 8460 of 1996, para 25. 52 Para 34. 53 Para 34. 54 Para 34. 55 Para 37. 56 Para 38. 57 Para 38. 58 Para 53. 59 Para 56. 60 Para 64. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |135 CHAPTER FOUR inoperational.”61 Though the MIC was to be stored under pure nitrogen pressure of 1 kg/cm2 the pressure was 0.25. That the plant was “running negligently”62 was reported by “a team of experts headed by Poulson from UCC, USA, who came to Bhopal after the death of an employee of UCIL in 1982.63 Reports were sent from Bhopal to UCC about the rectifi cation of the defects.64 The Bhopal plant was at the time of the incident “running in loss of near about Rs fi ve crore.”65 The Court then records the defence of Keshub Mahindra to the effect that “he only used to chair the meeting of the board. He was not concerned with the day-to-day business. He was not concerned with the safety aspect.”66 None of the matters were ever placed before the board of directors.67 These arguments were rejected. Referring to the role of a non-executive director, the Court observed that “she is usually involved in planning and policymaking…are expected to monitor and challenge the performance of the executive directors and the management and to take a determined stand in the interests of the fi rm and its stakeholders. They are generally held equally liable as executive directors…”68 The Court concluded that the present case was “not a case of vicarious, but a personal liability. In the modern times, there is an ever increasing awareness and expectations of the duties and responsibilities of large corporations in matters of health and safety.”69 Then the conviction and the sentence followed. In concluding the Chief Judicial Magistrate observed: “the tragedy was caused by the synergy of the very worst of American and Indian cultures. An American corporation cynically used a Third World country to escape from the increasingly strict safety standards imposed at home. Safety procedures were minimal and neither the American owners nor the local management seemed to regard them as necessary. When the disaster struck there was no disaster plan that could be set into action. Prompt action by the local authorities could have saved many, if not most, of the victims. The immediate response was marred by callous indifference.”70 The Court ended by declining payment of compensation under Section 357(3) of the Criminal Procedure Code on the grounds that the compensation settlement had been entered into. This is an interesting point. Damages were awarded in the settlement for injuries caused in civil proceedings. Compensation in criminal law proceedings is awarded “to reassure the victim that he or she is not forgotten in the Criminal Justice System. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our Criminal Justice System.”71 In that case the 61 Para 64. 62 Para 78. 63 Para 78. 64 Para 80. 65 Para 115. 66 Para 118. 67 Para 135. 68 Para 137. 69 Para 184. 70 Para 216. 71 Manish Jalan vs State of Karnataka (2008 9 Scale 814). |136 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT

Supreme Court regretted courts not exercising “their salutary powers under this section as freely and liberally as could be desired.”72 Lessons of Bhopal After 1985, Judicial activism went into a tailspin. Bhopal hastened the decline in the standards of Judicial decisions on the environment more than any other case. It taught industrialists a memo- rable lesson. If you can get away with Bhopal, you can get away with anything. If after thousands of people died in Bhopal, Union Carbide and the board of directors could get away with petty compensation and no criminal liability (under the 1989 judgement), then one need not fear the law. Poor people do not count. This was the second lesson. The Tragedy of Bhopal was that the gas leaked into the quarters where the poorer people lived. Had the toxic cloud drifted in the direction of the Secretariat, the Bhopal litigation may have taken a different turn. As things turned out the wind direction changed and Arjun Singh, the then Chief Minister of Madhya Pradesh, was able to board his helicopter and decamp. Poor people died like fl ies and the litigation dragged on for years. Advocates made fools of themselves in American courts arguing with fawning patriotic zeal that courts in India were up to the mark, and Judge Keenan took advantage of this to disguise his basically pro-business attitude with pat- ronising sweet-nothings. Who are we to tell the Third World what they should be doing? They have their values, their courts, their standards. Who are we to decide what compensation is payable? With words of this kind the litigants were banished from American courts, with their strict liability and high levels of compensation and low levels of judicial corruption, into the labyrinthine mess of the Indian Judicial System. Double standards Thus, with Keenan’s judgement, double standards for transnational corporations became the norm. American corporations were required to follow higher standards of safety in America and also abide by the Right to Information laws and the higher level of compensation. But operating in the backwaters of the developing world, they were free to work in secrecy, bribe offi cials and lie in the court. Were transnational corporations to be prosecuted in American courts according to American law for disasters abroad, the occupational health and safety scene in the developing world would have improved dramatically. The undue haste with which the full Bench of the Supreme Court pushed through the settlement and quashed the criminal proceedings was later partially corrected when the Court reversed itself and restored criminal liability. This haste to push through the settlement was in sharp contrast to the manner in which the judicial proceedings went on for years. The Court’s performance was a fi tting answer to Nani Palkhivala’s grand arguments that the Indian Judicial System was competent to handle the Bhopal litigation. And when Chief Justice Pathak went to the World Court at The Hague soon after criminal liability was quashed and then tried to hang on for a second term by unusual means, eyebrows were raised. The result of all this was a clear signal to the lower Judiciary that the environment was taboo and to industrialists that it was business as usual. 72 818. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |137 CHAPTER FOUR

So, many years later, when an infl ammable gas leaked and ignited causing an explosion that shook the Indian Petrochemical Corporation Ltd’s (IPCL) factory at Nagothane in Maharashtra and killed 50 workers, it was history repeating itself. The management was hopelessly unpre- pared. The hospital within the complex in which thousands resided had beds for only seven patients. The doctors said that they were not surgeons. They did not know how to give an intravenous drip. They claimed that they had neither the equipment nor the medicines and that they were never informed of how to deal with victims of chemical explosions. The hospital had only two ambulances with two beds each. One was so old it broke down at the gate. The workers’ bodies were, therefore, taken to hospital by contractor’s trucks. Acting in a panic the doctors evacuated the factory without fi rst treating the injured and dying. They were taken northwards towards Alibag over roads pitted so badly that some of the workers died on the way. After hours they reached Alibag only to fi nd the civil hospital without medical supplies. The trucks then turned around and came south to Mumbai. At Sion Hospital the doctors found all the workers dead. They said that had elementary emergency aid been provided by spraying the workers with cold water immediately after the explosions and then by covering them in light cotton clothing and had intravenous drips been administered it would certainly have been possible to save lives. As in Bhopal, transnational corporations were involved in the fabrication of the IPCL plant and these foreigners were working in the premises when the explosion took place. They immediately left the factory and caught the fi rst fl ight home. Thus even after Bhopal no industrialist had learnt that a disaster management plan was necessary. Not very different is the story of the recent hazardous chemical leak from Century Rayon, Thane. Government attitudes in Bhopal sent a similar signal down the line to all the expert bodies. When on behalf of government, the Tata Institute of Social Sciences sent a team to Bhopal to document the number of persons affected and the degree of injury, much work was put in but the records are mysteriously missing. Voluntary groups doing similar work had their offi ces raided, their activists arrested, their records seized by the police and later destroyed so that documentation of the nature and extent of injuries was deliberately done away with leading ultimately to only about one-third of the victims getting compensation. From the top came the warning to zealous offi cers that the environment was not to be taken seriously. The courts and the government repeated this performance when activists of the Narmada Bachao Andolan were routinely beaten up and arrested and treated as anti- nationals and anti-development. Despite the failings of the Narmada project, the High Court refused to entertain the petition and the Supreme Court in this matter of national importance passed a one page order directing the construction to proceed apace with perfunctory remarks regarding rehabilitation. As with the Amnesty report on torture in India, it sometimes takes a foreign committee’s report to make India sit up and take notice. There could not be a more scathing indictment of the Narmada project than the Morse Committee report. Yet, in a situation where the governments of Gujarat, Madhya Pradesh, and Maharashtra have no intention of rehabilitating anyone according to the Narmada Water Disputes Tribunal. Award and the supplementary agreements, all that BD Sharma, the intrepid ex-commissioner for Scheduled Castes and Tribes could get from the Supreme Court in his public interest petition was a direction against him, for the work on the dam to go ahead.

|138 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ENVIRONMENT

Corruption The casual attitude of the courts has taught the pollution control boards a thing or two. Steeped in corruption and headed by politicians, these boards fabricate anything for anybody at a price. At the centre of the putrefaction of social life, the pollution control boards – themselves cesspools of corruption – have become a law unto themselves. Reports are fabricated, investigations stage managed, approvals granted fraudulently and accidents covered up. And the position of the union minister for environment, once a punishment posting, has become the most lucrative ministry. Crores of rupees in bribe money fl ow through the corridors of Paryavaran Bhavan, the headquarters of the environment ministry. The pollution control boards get away with this because courts do not question their reports. In property matters, affi davits, reports and other documents are scrutinised closely by the writ courts, but in environmental matters, even the most outrageous, casual or contradictory reports would pass muster. When expert bodies act independently and fearlessly then it is understandable that courts not substitute their eclectic knowledge of the subject for the scientifi c reasoning of the expert body. But when the pollution control boards act mala fi de, should the courts keep their eyes shut? The obsession judges have with the amount of money spent on projects is another misplaced concern. What lawbreakers routinely tell the courts, in effect, is: “perhaps we have broken the law and harmed the environment but we have spent so much money; let us continue with the construction, otherwise we stand to lose more money.” And the courts succumb. Because of their property and profi t orientation, judges rarely calculate the enormous costs in terms of environmental destruction. It takes courage to condemn a mega project that will harm the environment. But it must be done and in clear terms. Judicial pronouncements on the environment in India tend to appear to say much more than they do. The Sriram case, for example, used wonderful language and several quotations and relied on many precedents and is said to lay down the principle of strict liability. The casual reader might believe that strict liability now exists in India. But when read carefully the judgement is otherwise. Subsequent decisions of the Supreme Court have not taken the Sr- iram case as laying down strict liability. We are told that one of the judges who delivered the decision – a prominent Public Interest Litigation proponent – has, after retirement, in opinions given to industrialists, said that the doctrine of strict liability as laid down in Sriram’s case was obiter. Thus, after Bhopal, the separation between what judges pretended to say and what they actually said grew. Grand judgements were not uncommon but they had little effect because the operative part of the orders were like little pipsqueaks as compared to the lion’s roar of the quotations and lofty ideals. By these techniques the Judiciary caused the public to believe that the Judiciary was receptive whereas quite to the contrary judicial decision-making was characterised through this period by timidity and domination by industry. As the Judiciary went into decline, the movement grew and took on the dimensions and characteristics of a mass movement. Now, we are truly on the threshold of a second national movement. Public life has become so corrupt, standards are so abysmally low and looting the exchequer has become so much a national pastime that nothing short of a national cleansing of the rot that pervades Indian society will do.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |139 CHAPTER FOUR

The environment movement once stood on the fringes of the human rights movement together with other issues as just another issue. Today, it stands centre-stage. The nexus between environment issues and life itself indicates that the struggle for a healthy and sustainable environment is a struggle for changing the whole of society itself. Basic values, attitudes, approaches, priorities and lifestyles are called into question and the environment has transited in the people’s minds from just another issue to the subterranean strata of all movements. It is not simply an issue of forests or water or the air but the living together in harmony of all people and their harmony with nature.

–Economic & Political Weekly, Vol. XLV, No. 26&27 June 26, 2010

|140 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WHITHER HUMAN RIGHTS?

e have lamented the lack of care shown by the Judiciary to the Bhopal Gas Tragedy victims and the general unconcern with issues relating to the environment. Now, envi- Wronmental law has taken a quantum leap, the continuing neglect of the Bhopal victims shows that the State has neither the vision nor the dynamism to right a substantial wrong. The pathetic leaders, of modern India, may help take India into the 21st century but, as far as the poor are concerned, they will remain forever in the dark ages. Kuldip Singh, and a few other judges, were the only ray of light – and what a bright light it turned out to be – raising consciousness of environmental law, inspiring the lower Judiciary and encouraging NGOs to carry ”precautionary principle” and the”polluter pays” principle in Indian tort law and expanding the Public Trust Doctrine among other innovations. This was judge-made-law at the highest, operating in an areas where Indian Statutes focused on the creation of authorities rather than the laying down of substantial law. Intervention, by the Apex Court, was necessary because the statutory bodies were not doing their duty. They were routinely interfered with by the politicians. They were not funded enough; they had no capacity to check pollution; and in any case, they had no will to do so. They were corrupt and lethargic. They had not the slightest intention of implementing the law. The Apex Court’s intervention cut through this bureaucratic mass, laid down substantial law and empowered the public in their struggle. The bureaucracy is however fi ghting back. Much of the core of environmental law is delegated legislation, enabling ministry offi cials to exercise vast powers by cutting into existing judgements by the notifi cation of new rules. A case in point is the CRZ notifi cation into which major inroads have been made repeatedly by bureaucrats, ostensibly to help fi shermen, but in reality to assist the tourism lobby. Whereas earlier, the preparation of environmental impact assessment reports mandated a public hearing this is now being undermined by a series of amendments making a public hearing the discretion of the ministry of environment and forests. There was another depressing trend. The environmental litigation came to be increasingly hi- jacked by the rich, high profi le environmental and wildlife NGOs, many of them funded by industrial houses. In their connection only the upper classes deserved a healthy environment. Naturally, housing for the poor, or upgradation of slums, was never seen, by such groups, as an environmental issue. On the contrary, there were many cases where PILs were fi led for the demolition of slums, sometimes for the making of gardens, sometimes for garbage bins. Human beings are supposed to be on the top of the order of nature. But in India, the poor rank below garbage. The Tribals, in national parks and sanctuaries, were seen by such NGOs as the enemies of the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |141 CHAPTER FOUR forests. They ﬁ led cases seeking the exclusion of Tribals, asking that walls be built around the national parks with barbed wire and sentry towers be erected. In other cases, factories were closed as a result of such PILs and hardly a thought was given to the victims of closure - the contract workers. In the trafﬁ c pollution cases, once again, no one thought of the rights of those incapable of buying a car. In the struggle for road space, not a thought was given to pedestrian plazas with no-car zones, increased occupancy ratio for cars travelling down arterial routes during peak periods, increased taxing of private cars and particularly the additional family car. This is necessary to compensate for the ill effects of pollution, to pay for the roads and for the improvement of public transport. The start of the millennium thus saw a clear schism between environmentalists per se and those who approached the issue as one of human rights. This chasm is increasingly becoming incapable of being bridged.

–The Environmental Activists Handbook -I May 2000

|142 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation BAN ASBESTOS NOW

he arrival of the warship Clemenceau has raised the profi le of the use of asbestos in and imports into India. While the developed countries have drastically reduced or have totally Tbanned the use of asbestos, applications in India are increasing at 12 percent per year. In 1986, the Consumer Education and Research Centre, Ahmedabad fi led a writ petition in the Supreme Court asking merely for a direction that manufacturing units switch from the dry to the wet process. The petition was heard 10 years later and directions were given to maintain the health records of workers, to conduct the membrane fi lter test to detect asbestos fi bres at work places, to compulsorily insure workers and do regular check-ups, to reduce permissible exposure limits in tune with the international standards and to compensate all workmen suffering from asbestosis by payment of rupees one lakh. A study by the Public Health Engineers, published in January 2002, found that the judgement was not implemented, the health records of the workers were not maintained, the membrane fi lter test was not being done, workers were not being medically examined, compensation was not paid and despite the passage of time the fi bre limit in India was 20 times the USA limit and no review had been undertaken. In 1997, Canada, the largest producer and exporter of white or chrysotile asbestos, took France to the Appellate Authority of the WTO when France banned imports of all forms of asbestos fi bres and products. The WTO panel found France’s policy designed to protect human life and health and concluded that reasonable available alternatives to the ban did not exist. Safe use in the general population was impossible. People would be exposed unknowingly to relatively high levels of fi bres during installation, maintenance and removal of products containing asbestos. Given the large number of persons concerned, the diffi culty of assessing risk and the complex protection systems required, the WTO panel concluded that safe use is not a practicable option. The panel also identifi ed several categories of workmen who suffer secondary exposures. Asbestos cement also came in for scathing criticism. Accordingly, the WTO rejected the principle of “controlled use” of asbestos products. Since 1931, when the “controlled use” policy was adopted in the UK, 3000 deaths took place every year leading to the imposition of a total ban in 1999. In the United States, there was drastic reduction in asbestos use from 8,03,000 MTs in 1973 to 15,000 MTs today. Exposure to asbestos in the US led to a fl ood of compensation cases and over US $ 54 billion have been paid and over 60 large corporations have become bankrupt. Some 200,000 cases are pending and 50,000 cases are fi led every year. The two largest end uses in India − of sheets and pipes − are prohibited in the US. A Bill is now pending to ban asbestos in the American Senate. Thirty six countries − including the entire European Union − have banned all forms of asbestos.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |143 CHAPTER FOUR

India, as usual, moves in the opposite direction with the central government actively promoting the use of asbestos thus encouraging vested interests who have got away with murder for decades. In 2004, Kalyaneshwari, a consumer NGO with limited resources, identiﬁ ed over 500 victims in West Bengal, Rajasthan, Jharkhand, Tamil Nadu, Gujarat and Andhra Pradesh and estimated that there were at least 100,000 victims in the country. In West Bengal and Gujarat, the asbestos factories were working without any regulation. In Rajasthan and Jharkhand, illegal mining of asbestos was taking place. In an asbestos cement unit in Tamil Nadu, 90 percent of the workers tested positive when examined by a reputed lung specialist. The institution of Public Health Engineers estimated that less than 100 workers in the country had obtained compensation. Large numbers were dying without treatment. Workmen had their services terminated on being found suffering from asbestos related diseases. Canada, being the largest exporter to India, is a special wrong–doer. Canada consumes only one percent of the asbestos it mines. Foreign companies which were operating in India − such as John Manville, Turner and Newwall and Eternite − have sold their interests to Indian companies and left due to fear of compensation cases. Indian companies remain unconcerned. Asbestos manufacturing and importing corporations have developed close links with senior persons in the administration who ensure that asbestos imports and use carry on regardless. These persons and corporations have caused untold misery not only to workers but all direct and indirect users of asbestos. The time to impose a total ban is now!

|144 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI FIVE CHAPTER

1. The Betrayal of Tsunami Survivors 2. Administration Most Foul 3. The Deadly Bureaucracy in the Andamans 4. Iron Curtain’s Mendacity Courtesy: Combat Law

One would think that the bureaucracy, no matter how ineffectual it otherwise is, would disregard petty rules and red tape and take assistance from all well meaning citizens. But the experiences of the NGOs have been to the contrary.

|146 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE BETRAYAL OF TSUNAMI SURVIVORS

he condition of the survivors in the Andaman & Nicobar Islands is little known, though much has been written about the situation in Tamil Nadu and Pondicherry,. Many NGOs, working Tin the area, are collaborating with the administration and are apprehensive about speaking out. With the arrival of the monsoons, rehabilitation work has become slower. Many journalists, covering the Islands budget, spend most of their time at Port Blair and cannot always make it to the smaller islands. The Human Rights Law Network (HRLN) team was on the Islands immediately after the Tsunami and has maintained a presence there to this day. This is their report of the betrayal of the Tsunami survivors. The neglect of the people has its roots going back many decades and is to be located in the isolation of the Islands from mainland India and the consequent freedom given to the administration to do as they please. Central scrutiny is minimal, few NGOs exist, the national newspapers fi nd it too expensive to cover the Islands in normal circumstances and the Bar, at Port Blair, is not accustomed to doing public interest petitions. All this creates a ripe situation for the exploitation of the Tribals who suffer without demur and protest injustices done to them with amazing politeness. The Tribals, before the Tsunami, had their own plantations, were accustomed to fi shing and had a certain sense of well being and self-confi dence. Though the balance of power −between the administration and the Tribals − had always tilted in favour of the former, the Tribals were often determined to speak their mind and do as they please. The Tsunami changed all that. A once proud people are reduced to living in tin sheds and on the free rations of the government. They are shaken and afraid. The administration could have responded to restore confi dence and self-esteem but did just the opposite. They reinforced practices of dependence and subservience. All that the people wanted, in the fi rst days after the Tsunami, were tools so that they could build their houses with the timber lying around. The government refused. Instead a harebrained scheme of providing tin sheds was fl oated at Delhi and pushed down the throats of the Tribals in the Islands. Tin sheds have been tried and have failed everywhere. And yet in the Islands tens of thousands of these sheets were ordered and distributed. From the cool confi nes of their machaans made of wood Tribals were shifted to ovens where they baked in the afternoon sun. These temporary structures had no fl ooring and so, when the rains came inside, so too did the slush. Everywhere the Tribals protested but they were scared that their criticism of the tin sheds may be seen by the administration negatively and may result in the withdrawal of benefi ts. So they suffered the stupid mainlanders. But they would ask again and again for tools but these repeated requests were ignored. That single act,− the provision of good wood cutting tools − would have

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |147 CHAPTER FIVE restored the confi dence of the Tribals. They would have built their houses of wood once again. There was no need to have two phases − one for the construction of temporary shelters and another for permanent housing − because the Tribals would have merged the two phases and expanded and consolidated the temporary shelter to convert it into their fi nal home. I have no doubt that, had the administration done this simple act of providing tools, all the Tribals would have been housed within a month after the Tsunami. Instead what do we have? As recent as May 2005, when we visited the Islands, we found even the temporary shelters incomplete everywhere, and the Tribals leaving their homes and going into the forest areas in the afternoons to escape the heat of the tin sheds. And, as we were leaving the monsoons, fi rst showers came in, making the houses unlivable. Then we learnt that someone at Delhi has taken a decision to build pre-fabricated houses, either of RCC or a steel tubular structure, as permanent housing in the Andamans. The salinity of the air will cause the RCC structures to corrode and the tubular structures to rust. The Tribals will not be able to maintain these houses and repair them, having no skills to do so. If this devious plan works, the whole Andaman & Nicobar Islands will be converted into a giant concrete slum. There are offi cials over anxious to push this plan through, going from island to island and village to village giving the people three plans to chose from: all RCC or steel but not wood. People are given the impression that they either accept that or they will get nothing at all. And then casually, almost as if by chance, we heard from the mouth of a senior administration offi cer that the free rations will be discontinued from October. There can be no greater injustice than this. The lives of the Tribals have been shattered, their communities splintered, their livelihood destroyed, their homes washed away and, in these circumstances, all that they have, in the name of a little bit of security, is their free rations. They have no boats, so they cannot fi sh. Free grains is what they depend on to survive. What we would like to know is: Who has taken the decision to discontinue the provision of free grains and why are the people not being told about this decision? We found water shortages everywhere. People were drinking contaminated water. Children were falling sick. Truly no one cares for the little children. In the six months since the Tsunami, apart from a few sporadic attempts, their education came to a standstill. The State has not bothered to supply text books and note books. Had that elementary thing been done, the teachers, in the villages, would have ensured that the students not lose any time. Many villages were in darkness. Where the electricity lines were up and the generators in place there was no kerosene. In some places public, transportation was at a standstill and people had to walk long distances to reach their villages. It is pathetic to see the manner in which people travel from island to island and that too in the Andamans which houses a large and sophisticated naval base. The ships have no fi xed timings. When they sail they carry passengers many times their capacity with people huddled on deck like cattle. The toilets are stinking and overfl owing. Sometimes for days the people wait. Like the demand for tools we heard the demand for boats everywhere. Like the demand for tools this was also something that would restore self-confi dence and a sense of self-worth. The people would fi sh. They would travel from island to island carrying their vegetables and doing some trade. Independence, morale and self-confi dence of the Tribal people must be a priority. |148 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI

Where has all the money gone? Ask an offi cial, and he will give you a lump sum fi gure. Ask another and he will give you an entirely different sum. Why is it that the Government of India refuses to put up, on a website or publish in a newspaper, the list of benefi ciaries with the amounts donated? There is strong resistance to this in the administration. It is not the business of the NGOs to ask such questions, we were told in a meeting. Large sums of money exist and must be used for the purpose it was intended for. A CAG Enquiry may be of some use. But there is no excuse for a government, committed to the Right to Information, not to disclose, to the public at large, details of the money received and precise details as to how it is being spent. The greatest justifi cation for this is the fact that, on the ground, the Tribals suffer deprivation and ill health. In the past two months, the situation has shown some signs of improvement. The chief secretary has initiated a larger process of consultation with the Tribal leaders. Non-governmental organisations fi nd themselves better placed to engage with the administration and provide the much needed support to the affected communities. Whether the administration’s good intentions will be backed up by action, that improves the conditions of the Tsunami survivors, is yet to be seen. While the basic requirements − of food, shelter, education and livelihood − have not been fulfi lled, grand plans are afoot to convert parts of the islands into a thriving tourist hub, with little thought to the strain on the already-fragile ecology of the battered islands. On July 24, 2005 another offshore earthquake of magnitude 7.2 struck the islands causing panic and the fear of another Tsunami. Now more than six months after the Tsunami, the administration must quickly move beyond workshops and start a systematic process of community disaster drills. Communication, with certain islands, continues to be erratic. The task is enormous. The efforts must be visible in the lives of the common people without any further delay.

–Combat Law August-September 2005

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |149 ADMINISTRATION MOST FOUL

hile the governments of Andhra Pradesh, Tamil Nadu and Kerala are collaborating closely with NGOs on the matter of relief and rehabilitation, the administration in the Andaman W& Nicobar Islands has taken a hostile approach to NGOs and journalists and has, even otherwise, messed up relief operations. The Army and the air force have done their best but are hampered by the ineptitude of the administration. The negligence is of such an order and public feelings against the administration run so high, that the time has come to crack down, transfer some ofﬁ cers out and allow NGOs and the Tribal council to play their role. The Southern group of islands, consists of Car Nicobar (Carnic), Nancowry group of islands and Great/Little Nicobar (better known by an area – Cambell Bay). The Nancowry group comprises eight islands: Kamorta, where the naval base INS Kardip is located; Nancowry; Teressa; Katchal; Bambooka; Chowra; Trinket; and Telanchong. Of these, Kamorta is least affected whereas Trin- ket is completely destroyed. Most of the islands have been completely devastated. Bambooka, Chowra and Trinket have been fully evacuated. Telanchong is uninhabited. To enter Car Nicobar, and the Nancowry group, a “Tribal Pass” is required. This is not required for Cambell Bay but it is required at Pilomilo, Pilobhavi, Kondul, Piloullo and Pilopanja and the places inhabited by the Shompen tribes. The islands have a Tribal as well as a non-Tribal population. The Tribals, in the different islands, have separate cultures. It is possible that now entire Tribal cultures may be wiped out. After the 2002 major earthquake in Diglibur, an NGO operating out of Port Blair, the Society for Andaman and Nicobar Ecology (SANE), predicted, in its magazine, that a Tsunami could hit the islands before 2010. If this happened, the NGO warned, water, electricity, telephone lines and roads would be hit and any disaster plan must provide for such emergency services. At that time the lieutenant governor had directed the then deputy commissioner to involve SANE in making such a plan. Unfortunately, the district administration paid no heed to these warnings and did nothing about the matter. Nothing was done. One would think that the bureaucracy, no matter how ineffectual it otherwise is, would, faced with a disaster of this magnitude, disregard petty rules and red tape and take assistance from all well meaning citizens. But the experiences of the NGOs have been to the contrary. NGOs, subject area experts, doctors and others are being pointlessly obstructed at Port Blair by the development commissioner, Anshu Prakash, who says that his refusal to allow persons to do relief work is “upholding the law.” Thirty doctors from Medicines Sans Frontiers and the Voluntary Health Association have been refused permission to move to the other islands. Six doctors, from Kerala, recently met the director, health services, Port Blair who agreed to send them to Katchall. She

|150 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI was then told by her superior offi cers to refuse permission. While the doctors awaited permission, a 38-year old Nicobari on the Island, Kakana, fell ill at 6 am on the 12th of January. There was no doctor to attend to him and the administration did not take him to another island. He died that evening. The relief commissioner, Naresh Kumar, said that the government had a million water purifi cation tablets available. However, none of these reached the people at large. Even the Ramakrishna Mission, a comparatively better known organisation, was unable to get to them and had to approach a private party. There were complaints of women needing sanitary napkins. Once again the relief commissioner directed that supplies be sent to every camp and it appears that indeed they were sent. But the interaction, between government offi cers and the people, appears poor and supplies, that do exist, often do not reach the person needing them the most. The Anand Margis, at Hut Bay, complained that they could not get rice while it is said that the government godowns are full of grain. A recent article, in The Telegraph, found rice, meant for relief work, being sold in the black market. Two hundred bicycles, the main mode of travel, meant for Central Nicobar are lying at Port Blair and are not being taken to the islands. The deputy commissioner, Ganesh Bharati, told an NGO: “I cannot take it, go to the director (shipping) and pay the freight charges.” In the meanwhile NGO relief material is being deliberately blocked. Freight charges have been introduced for the fi rst time. Earlier, freight charges were not being levied for relief work. In some areas, mothers wanted mosquito nets for their infant children. In most areas people asked for axes and knives for making of houses. In Car Nicobar, seventy ”huris” (boats) were lost. Oxfam offered government two fi breglass boats but government refused them and they were accepted by an NGO and sent to the islands. Most of the boats, on the islands, are owned by the administration. The private shipping fl eet has also been requisitioned. The situation now is that even if NGOs book cargo and pay the freight charges, the cargo may not reach. The administration may have some explanation but surely it must understand that having an active interface, between the people and the government offi cials, would be in the interest of the administration itself. This is particularly so when some of the offi cers are insensitive to local culture and have no idea of how to respond to people’s needs in an emergency. As a result of this lack of an interface rising anger has manifested itself in ugly incidents. The Tehsildar at Hut Bay was tied up by local people. The director of civil supplies, Port Blair, who was put in charge of the relief operation at Kamorta, was criticised by Tribals on account of the insensitive remarks that he allegedly made. It was reported in the media that Mr Joshi, the deputy commissioner at Nicobar, had actually (being very bathwater deprived) bathed in mineral water. He has now been replaced by Udippta Ray. Adding to all this is the rising social tension in the area. In the Katchal Islands there is racial tension between the Sri Lankan Tamilians, working on the government rubber plantations, and the Tribals who demand that these plantations be cut to enable them to build houses. This is not to say that the administration is uniformly bad. The Army and air force are generally doing an excellent job. Some of the administrative offi cers are also working beyond the call of duty. The joint commissioner of transport, New Delhi, Mr PR Meena, is the offi cer on special duty at Kamorta and is doing a wonderful job taking whatever assistance is available from the NGOs

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |151 CHAPTER FIVE in an open-minded fashion, sharing information with them and involving them in relief work. The district administration should learn from the Nagapatnam model where the NGOs have formed a co-ordination committee which is operating out of the district collector’s offi ce. Similarly in Pondicherry and Cuddalore the energetic collectors have no hang-ups about learning a thing or two from NGOs and most of the time depend entirely on them. A Class-I gazetted offi cer living at Laxminagar in Cambell Bay recounted his tale of woe. The Tsu- nami struck at 6 o’clock in the morning on the 26th, destroying everything. For three days no one came to their rescue. Mr Jagjit Singh, the assistant commissioner, assuming, since his area was not badly affected, that the remainder of the island was not affected, apparently had a message sent on the radio that Cambell Bay was safe. No helicopters fl ew over. The coast guard did not provide relief. In desperation on 29th morning the entire group, from Laxminagar, began trekking towards the headquarters. They felt very let down when they heard, on the radio, that Indian planes and ships had reached Sri Lanka while no rescue measures had reached them. At 10:30 that night they were still on the road looking for the assistant commissioner. They were told, “searching for the AC is like searching for god.” When they ultimately met him and asked him for help, his tone was one of derision and contempt. By the 30th, they had lost patience and beat him up. That evening the lieutenant governor arrived by helicopter but people were in no mood to meet him. Till the 4th of February, the tents had not arrived and the people were sleeping in the mud. The earthquake struck Champin in Nancowry Island at 6:29 am causing extensive damage. The assistant commissioner in charge, Mr Mondal, was requested to depute three administration boats for rescuing people from MV Long Island, MV Bulbul and ML Ramakrishna. He refused saying that the director of shipping services had instructed him not to send the boats. By 11:00 a.m. all communication links had been destroyed. A message was sent to the lieutenant governor, Ram Kapse (LG); the chief secretary, VV Bhat (CS); the then DC Car Nicobar, Mr Joshi; and the DC Andamans, Mr Ganesh Bharati. No help arrived. The assistant commissioner was requested to send rations to Champian but he said he could not send a boat. Then one Nepas Levi managed to swim from Trinket to Kamorta. He requested that a boat be sent to rescue people. Two small Navy boats, with commanding offi cer SS Mann, set out at once. The offi cer saved the life of a seven year old child from Trinket. A resident, Rashid Yousuf, was one of the fi rst persons to give his four boats for rescue. Together with the police they rescued 200 people from Trinket, Safed Balu and Chota and Bara Inaka. Mrs Priscilla, of Pilpillow village, fl oated for three days and reached Teressa. If the boat had been sent earlier she might not have had to go through this ordeal and who knows how many more would have been saved. Through all this, Mr Mondal insisted that everything was “under control.” A request was made to him to supply rations urgently. He refused saying that he had no orders from a higher authority to supply free rations. They were released only after Dr Naresh, of the civil hospital, insisted that the cost of the rations be deducted from his salary. He played a crucial role during this diffi cult period visiting people and attending to their needs. He was at Katchal day and night, slept on the hospital verandah ready to assist people if they turned up. He also performed a major operation. It was a heroic struggle to get a police radio installed at Pilopillow where affected Tribals, from Kakana and Pilpillow, are in camps. There was no doctor. Many people had fever. The boats, delivering rations, refused to carry sick people. On 12 January, the 48 year old Paul felt dizzy and

|152 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI died. Police, with two radios, were deployed but they got fed up with the living conditions and secretly left. HAM Radio operators volunteered to assist but were refused permission to work in the islands. While the NGOs were barred from the islands, a moron from the Hang Gliding Association, Delhi together with a lady colleague fl aunted a letter of KH Munivappa, minister of state for shipping, and landed up at the camp volunteering to “help break trauma.” The people in the East Bay camp at Katchall Island were fi rst visited on 1st 08 January. They had no purifi ed water, no doctor, no police radio, no dispensary and no boats. Mr Abid, the relief-in-charge at the Katchall camp, pointed out that the drinking water appeared unfi t and that there was no facility for water purifi cation. Each person was given 300 grams of relief rations. Victims were asked to make a payment if they wanted to contact their relatives by the newly installed satellite. Kerosene lamps and torches were sorely needed. Why the great secrecy? Apparently, thousands of contract workers are working without permits in the Andamans after their contractor paid bribes to the authorities. Retired government employees have houses on Tribal land and continue to live illegally on the islands cultivating land, an activity prohibited by law. The secrecy was nothing but an attempt to cover up the corrupt way in which non-Tribals were allowed into restricted areas illegally. The excuse of Tribal passes is used to keep out experts so that the actual functioning of the administration is not exposed. Currently, an integrated command is set up at Port Blair so that the armed forces and civil administration work together. But the armed forces are unhappy with the civil administration. The chief captains of the Tribal village want the transfer of Mr Vivek Pandey, offi cer on special duty at Teressa “who is not sensitive to the Tribals and behaves as though he is still in Delhi.” It is the same offi cers who repeatedly say that Tribals are lazy and that they do not work. But it is the Tribals who carry grains, fi nd transportation on their own and clear lands to make the helipads. The Tribal people have a leader for each village called the Captain. To preserve their way of life, the Anadman & Nicobar (Protection of Aboriginal Tribes) Regulation was passed in 1956. But non-Tribals were able to bribe their way in. What needs to be done? First no Tribal pass should be issued without consulting the Tribal counsel. They seek 100 percent reservation in the government jobs. They must be an integral part of all planning processes. The autonomous Tribal council, with increased powers, is a long pending demand. Loss must be assessed immediately. Repayment of bank loans and the other liabilities of the Tribals must be waived. Compensation in Tamil Nadu and Pondicherry is Rs. 100,000 for death; Rs. 10,000 for house reconstruction; Rs. 5,000 for cremation expenses and smaller amounts for grain and utensils. In the islands, the only compensation paid is the initial Rs. 2,000. The Prime Minister announced Rs. 100,000 compensation for death but no GO has been issued so far. The banks are offering loans but are unclear about whether the existing liability is to be waived. The lieutenant governor declared a payment of Rs. 60 lakh to the Tribal development cooperative society but this is yet to materialise. The children need to start studying but the books

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |153 CHAPTER FIVE have not reached and a scholarship system must be set up. The children are traumatised and so NGOs, with professional counselling skills, are needed immediately. The process, by which a Tribal can get a contract for work, takes up to one year and needs to be radically changed. Boats must be given priority, axes and knives are sorely needed. Cycles, the main mode of transport, need to be distributed. Most of all NGOs must be allowed in but only after clearance from the Tribal councils. As things stand today, leading Indian NGOs are twiddling their thumbs at Port Blair. Many of them reached by the 28 December. They were bluntly told that the administration had the capacity to do the work and did not need their help. The development commissioner, Anshu Prakash, asked them to take permission from the home ministry. The chief secretary, Mr VSV Bhatt, said the same thing. The home ministry ofﬁ cials are also apparently good at ping-pong. They said they had no problem but the district administration had the ﬁ nal say. Even in the Little Andamans and Cambell Bay, where permits are not necessary, journalists and NGOs are now blocked after reports, critical of the administration, emerged from those islands. The Aaj Tak footage of Tribals shown as breaking news was actually old material. On 5th of January the lieutenant governor, after being grilled by journalists and NGOs, asked them to submit an application. This was done promptly. Since then there has been no news. The administration promises to allow funding to reach Hut Bay, Little Andamans and Cambell Bay but that permission has not yet been granted. However, the need is far greater in the Nicobar Islands. The cabinet secretary did an aerial visit but refused to meet NGOs. Give us the money, is the stand of the administration, we will do the work.

–January 2005

|154 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE DEADLY BUREAUCRACY IN THE ANDAMANS

ne would think that the bureaucracy, no matter of how ineffectual it otherwise is, would, faced with a disaster of this magnitude, disregard petty rules and red tape and take as- Osistance from all well meaning citizens. But the experiences of the NGOs have been to the contrary. NGOs, subject area experts, doctors and others are being pointlessly obstructed and are wasting their time at Port Blair. Thirty doctors from Medicins sans Frontiers and the Voluntary Health Association have been refused permission to move to the other islands. Six doctors, from Kerala, have been refused permission to move to other islands. In the meanwhile, Paul Sanjit, a 38 year old Nicobari on the Island Kakana fell ill on 12 January. There was no doctor to attend to him. He died that evening. The relief commissioner, Naresh Kumar, said that the government had a million water purifi cation tablets available. However, none of these reached the people at large. Even the Ramakrishna Mission, a comparatively better known organisation, was unable to get to them and had to approach a private party. There were complaints of women needing sanitary napkins. Once again the relief commissioner directed that supplies be sent to every camp and it appears that indeed they were sent. But the interaction, between the government offi cers and the people, appears poor and supplies, that do exist, often do not reach the person needing them the most. The Anand Margis, at Hut Bay, complained that they could not get rice while it is said that the government godowns are full of grain In the meanwhile NGO relief material is being deliberately blocked. In some areas mothers wanted mosquito nets for their infant children. In most areas people asked for axes and knives for the making of houses. In Car Nicobar seventy ”huris” (boats) were lost. requisitioned. Freight charges have been introduced for the fi rst time. Earlier freight charges were not being levied for relief work. The situation now is that even if NGOs book cargo and pay the freight charges the cargo may not reach. As a result of this lack of an interface rising anger has manifested itself in ugly incidents. The Tehsildar at Hut Bay was tied up by local people. The Director of Civil Supplies, Port Blair, who was put in charge of the relief operation at Kamorta, was criticised by Tribals on account of the insensitive remarks that he allegedly made. It was reported in the media that Mr Joshi, the Deputy Commissioner at Nicobar, had actually, being very bathwater deprived, bathed in mineral water. He has now been replaced by Udippta Ray. Cambell Bay A Class-I gazetted offi cer living at Laxminagar in Cambell Bay recounted his tale of woe. The Tsunami struck at 6 o’clock in the morning on the 26th, destroying everything. For three days no one came to their rescue. Mr Jagjit Singh, the Assistant Commissioner, assuming, since his

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |155 CHAPTER FIVE area was not badly affected, that the remainder of the island was not affected, apparently had a message sent on the radio that Cambell Bay was safe. No helicopters fl ew over. The coast guard did not provide relief. In desperation on 29th morning the entire group, from Laxminagar, began trekking towards the headquarters. They felt very let down when they heard, on the radio, that Indian planes and ships had reached Sri Lanka while no rescue measures had reached them. At 10:30 that night they were still on the road looking for the Assistant Commissioner. They were told, “searching for the AC is like searching for god.” Champin The earthquake struck Champin in Nancowry Island at 6:29 a.m. causing extensive damage. The Assistant Commissioner in charge, Mr Mondal, was requested to depute three administration boats for rescuing people from MV Long Island, MV Bulbul and ML Ramakrishna. He refused saying that the Director of Shipping Services had instructed him not to send the boats. By 11:00 a.m. all communication links had been destroyed. A message was sent to the Lieutenant Governor, Ram Kapse (LG); the Chief Secretary, VV Bhat (CS); the then DC Car Nicobar, Mr Joshi; and the DC Andamans, Mr Ganesh Bharati. No help arrived. The Assistant Commissioner was requested to send rations to Champian but he said he could not send a boat. Then one Nepas Levi managed to swim from Trinket to Kamorta. He requested that a boat be sent to rescue people. Two small Navy boats, with commanding offi cer SS Mann, set out at once. The offi cer saved the life of a seven year old child from Trinket. A resident, Rashid Yousuf, was one of the fi rst persons to give his four boats for rescue. Together with the police they rescued 200 people from Trinket, Safed Balu and Chota and Bara Inaka. Mrs Priscilla, of Pilpillow village, fl oated for three days and reached Teressa. If the boat had been sent earlier she might not have had to go through this ordeal and who knows how many more would have been saved. Through all this Mr Mondal insisted that everything was “under control.” A request was made to him to supply rations urgently. He refused saying that he had no orders from a higher authority to supply free rations. They were released only after Dr Naresh, of the civil hospital, insisted that the cost of the rations be deducted from his salary. Pilpillow It was a heroic struggle to get a police radio installed at Pilopillow where affected Tribals, from Kakana and Pilpillow, are in camps. There was no doctor. Many people had fever. The boats, delivering rations, refused to carry sick people. On 12 January, the 48 year old Paul felt dizzy and died. Police, with two radios, were deployed but they got fed up with the living conditions and secretly left. HAM Radio operators volunteered to assist but were refused permission to work in the islands. While the NGOs were barred from the islands a moron from the Hang Gliding Association, Delhi together with a lady colleague fl aunted a letter of KH Munivappa, Minister of State for Shipping, and landed up at the camp volunteering to “help break trauma.” The people in the East Bay camp at Katchall Island were fi rst visited on 1 January. They had no purifi ed water, no doctor, no police radio, no dispensary and no boats. Mr Abid, the relief in charge at the Katchall camp, pointed out that the drinking water appeared

|156 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI unfi t and that there was no facility for water purifi cation. Each person was given 300 grams of relief rations. Victims were asked to make a payment if they wanted to contact their relatives by the newly installed satellite. Kerosene lamps and torches were sorely needed. Why the great secrecy? Apparently thousands of contract workers are working without permits in the Andamans after their contractor paid bribes to the authorities. Retired government employees have houses on Tribal land and continue to live illegally on the islands cultivating land, an activity prohibited by law. The secrecy was nothing but an attempt to cover up the corrupt way in which non-Tribals were allowed into restricted areas illegally. The excuse of Tribal passes is used to keep out experts so that the actual functioning of the administration is not exposed. Currently an integrated command is set up at Port Blair so that the armed forces and civil administration work together. But the armed forces are unhappy with the civil administration. The chief captains of the Tribal village want the transfer of Mr Vivek Pandey, Offi cer on Special Duty at Teressa “who is not sensitive to the Tribals and behaves as though he is still in Delhi.” It is the same offi cers who repeatedly say that Tribals are lazy and that they do not work. But it is the Tribals who carry grains, fi nd transportation on their own and clear lands to make the helipads. The Tribal people have a leader for each village called the Captain. To preserve their way of life, the Anadman and Nicobar (Protection of Aboriginal Tribes) Regulation was passed in 1956. But non-Tribals were able to bribe their way in. What needs to be done? First no Tribal pass should be issued without consulting the Tribal counsel. They seek 100 percent reservation in the government jobs. They must be an integral part of all planning processes. The autonomous Tribal council, with increased powers, is a long pending demand. Loss must be assessed immediately. Repayment of bank loans and the other liabilities of the Tribals must be waived. Compensation in Tamil Nadu and Pondicherry is Rs. 100,000 for death; Rs. 10,000 for house reconstruction; Rs. 5,000 for cremation expenses and smaller amounts for grain and utensils. In the islands, the only compensation paid is the initial Rs. 2,000. The Prime Minister announced Rs. 100,000 compensation for death but no GO has been issued so far. The banks are offering loans but are unclear about whether the existing liability is to be waived. The Lieutenant Governor declared a payment of Rs. 60 lakh to the Tribal development cooperative society but this is yet to materialise. The children need to start studying but the books have not reached and a scholarship system must be set up. The children are traumatised and so NGOs, with professional counselling skills, are needed immediately. The process, by which a Tribal can get a contract for work, takes up to one year and needs to be radically changed. Boats must be given priority, axes and knives are sorely needed. Cycles, the main mode of transport, need to be distributed. Most of all NGOs must be allowed in but only after clearance from the Tribal councils. As things stand today leading Indian NGOs are twiddling their thumbs at Port Blair. Many of them reached by the 28 December. They were bluntly told that the administration had the capacity to do the work and did not need their help. The Development Commissioner, Anshu Prakash, asked them to take permission from the Home Ministry. The Chief Secretary, Mr VV Bhatt, said the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |157 CHAPTER FIVE same thing. The home ministry ofﬁ cials are also apparently good at ping-pong. They said they had no problem but the district administration had the ﬁ nal say. Even in the Little Andamans and Cambell Bay, where permits are not necessary, journalists and NGOs are now blocked after reports, critical of the administration, emerged from those islands. The Aaj Tak footage of Trib- als shown as breaking news was actually old material. On 5 January the Lieutenant Governor, after being grilled by journalists and NGOs, asked them to submit an application. This was done promptly. Since then there has been no news. The administration promises to allow funding to reach Hut Bay, Little Andamans and Cambell Bay but that permission has not yet been granted. However, the need is far greater in the Nicobar Islands. The Cabinet Secretary did an aerial visit but refused to meet NGOs. Give us the money, is the stand of the administration, we will do the work.

– The Indian Express January 26, 2005

|158 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation IRON CURTAIN’S MENDACITY

hat sense of importance did it give the Government of India to reject offhand the offer by the European States to provide grants, materials and equipments for the victims of WTsunami in India, only to thereafter approach the World Bank for a loan albeit with low interest? What drove the government to provide relief by sea and air to the Tsunami victims in Sri Lanka, when the victims in the Andaman & Nicobar Islands are without housing and clean drinking water till today? For how long will the central government hide the suffering of the Tsunami survivors in India from the rest of the world? There is something fundamentally wrong with the way we deal with relief to the victims of disasters and their subsequent rehabilitation. In the aftermath of the Latur earthquake in Maharash- tra, money poured in from all over the world. The state government forced its employees to make a contribution. Notwithstanding all this, the situation on the ground remained pathetic. A closer enquiry and a public interest petition in the Bombay High Court (at the Aurangabad Bench), indicated that part of the funds fl owing in, including the Rs. 801 crore of the World Bank meant for rehabilitation of the quake survivors, was diverted elsewhere, perhaps for election expenses. It was only Justice BN Deshmukh’s no-nonsense approach that forced the government to bring money back for the building of houses. Ten years after the Latur earthquake, and after elaborate monitoring, fi rst by the High Court and later by the Supreme Court, the houses were ultimately built for everyone. The Gujarat earthquake saw a similar situation. Here Muslims and Dalits were discriminated against in the re-building effort. The heroic efforts of NGOs and an ombudsman appointed by the High Court did bring some relief. A disquieting feature of all disasters is the reluctance of the administration to publicly acknowledge the specifi c details of the funds coming in, and the identity of donors. Leading newspapers invariably list their donors when they raise money for public causes, as after an earthquake. But the government is loath to do this. The reasons for this are to be found in the greed entrenched within the system, and the cruel attitude towards the poor. A careful social audit of how the donations of millions of dollars were actually used, may yield interesting results. Indeed, nothing angers the administration of the government more than a request from the public to publish the list of donors. I suspect that money meant for the victims of disaster are routinely diverted for the payment of the salaries of government servants and other sundry expenses. In the case of the Tsunami to this day, despite requests, the government has refused to put the list of donors on its website. General fi gures, of course, are routinely reported in the newspapers. Besides being unreliable,

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |159 CHAPTER FIVE they do not permit an individual donor to verify whether her contribution has been acknowledged. It’s a classic government strategy to always hide, obfuscate and confuse fi nancial details by leaking banal details of the total quantum received. When the Tsunami broke in the Andaman & Nicobar Islands on December 26, 2004, very few people from the mainland reached these remote areas. There was total confusion. Some policemen and government offi cials abandoned their posts and the people. Others made heroic efforts. A member of the Human Rights Law Network managed to land up on Kamota in the Nancowry islands. The people had been deserted by the administration. Were it not for the air force, many more lives would have been lost. When Combat Law, bimonthly on human rights and the law, covered the betrayal of the Tsunami survivors in its September 2005 issue, the joint editor, Mihir Desai, characterised the Govern- ment of India’s response as “a disastrous response to disasters.” Instead of relying upon the skills and contributions of the local population, the administration in the islands went about their business in a typically colonial fashion. The people asked for tools such as knives, axes and saws so that they could use the wood of the fallen trees to reconstruct their homes; but they were denied this. Instead, someone highly placed at Delhi took the decision to send hundreds of thousands of tin sheets long distance across the sea so that the people of the Andamans, who usually reside in wood houses or machaans, were forced to live in cattleshed type structures which turned into ovens during the day and were uninhabitable during the monsoons because of the mud fl ooring. They live in these sub-human structures to this day. The Government of India repeatedly promised the people that they would be given permanent housing, but not a single house has been built for the 10,000 Tsunami survivors! Instead of allowing the people to construct traditional houses made of wood, a prefabricated model of tubular steel is being imported from the mainland, obviously for the benefi t of contractors and bureaucrats. The people have no understanding of how this structure is to be maintained. It is frightening to think of what these beautiful islands will look like ten years from now with 10,000 prefabricated steel structures rusting and in disrepair. Then the people asked for boats and nets so that they could resume fi shing and get back to living as normal a life as possible. Their jetties had to be repaired so that the boats could dock. Cold storages had to be made so that fi shing could become a commercially viable proposition. Two years after, in many of the islands, the boats have yet to come, nets are yet to be distributed, jetties remain destroyed, and cold storages do not exist. There is fi sh in the sea but not for the Tribals of the islands. The other source of traditional livelihood is coconut plantations, but these have been destroyed. The seedlings planted will take seven years to yield fruits. There is no work or meaningful employment. This is why the administration provides free rations to the Tsunami-affected. When we met with the people we found that kerosene had been discontinued. The supply of free rations was irregular in many areas. And then came the announcement that free rations were to be discontinued. The intervention of the High Court saw better sense prevail. The stand of the administration now is that free rations will continue for some time. Unless alternative livelihood options emerge, free rations cannot and should not be discontinued.

|160 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TSUNAMI

For a country which considers itself a super power, safe drinking water is not available in most places. People are still drinking from stagnant water pools and streams. They suffer all kinds of diseases. This is a report to the nation of the suffering of the people of the Andaman & Nicobar Islands two years after the Tsunami struck, and of their decline from a proud race of independent Tribals and indigenous people who cared two hoots for the government, to a people dependent on the administration for their survival. This has been achieved by following policies and practices that ignore the desires and suggestions of the people, reducing them, in the process, to passive onlookers. This was not accidental. If corruption is to exist and grow, activities of the government must operate above the people — with very little participation, understanding and information. Perhaps, it is the remoteness of the islands that allows for such a colonial administration to fl ourish. The newspapers from Port Blair give details almost on a daily basis of cases of corruption. Nothing happens. Justices come on a rotation basis from Kolkata to man the high court functioning at Port Blair. They get to hear the administration’s point of view, but there are few NGOs or civil society groups who interact with the judges to give them the other side of the story. As a result, judicial intervention through PILs is hardly known. The Lok Adalats operating at Port Blair are ineffective principally because they require individuals to travel long distances at considerable cost and come to Port Blair — instead of holding the Lok Adalat in inaccessible and far-fl ung islands. All in all, there is an iron curtain between the islands and the mainland. In the middle of all this confusion, it appears that the minister for tourism is pushing for these pristine islands to be opened up for “high value” tourism. Deals are being struck with a string of fi ve, star hotels. Bureaucrats support this initiative with talk of the Tribals being backward. They, like our colonial masters, see their role as bringing primitive people into the “mainstream.” Globalisation has now reached the Southern most tip of India.

–Combat Law January-February 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |161

LABOUR SIX CHAPTER

1. Dismantling Labour Law in the Period of Globalisation 2. Decline in the Conditions of Contract Workers 3. SC Judgement in the SAIL Case 4. The Second Labour Commission Report: Never a More Anti-labour Policy Courtesy: Internet

The Judiciary has abandoned the working class. Globalisation has caused a sea-change in the thinking of judges. The impressionist view that socialism is dead and that globalisation offers a panacea for everything will soon be proved wrong.

|164 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation DISMANTLING LABOUR LAW IN THE PERIOD OF GLOBALISATION

n the period, from Independence upto the mid–90s or so, the Judiciary played a leading role in setting up, by precedence, a wonderful edifi ce for the protection of labour rights and for Imaintaining the dignity of labour. By the mid-90s however, the ideology of globalisation, privatisation and structural adjustments began to hold sway and the approach of the legal system began to change from a pro-labour stand to one markedly against labour. As a result, organised labour was almost completely denuded of its rights under law; workers became increasingly demoralised, frustrated and resentful of the legal system; and litigation fell precipitously. The consequences, at large, are more than clearly visible. But one thing is certain: if organised labour is given to believe that there is no scope for labour rights, in the Indian democratic system, it will seek the same outside the purview of the system and it is we who will pay the price for labour militancy. Contract labour Among the early decisions, which set the trend in demolishing the rights of labour as guaranteed not only under the Statutes but also in the decisions of the Supreme Court, was the decision of the Apex Court in Steel Authority of India Ltd versus National Union Waterfront Workers [(2001).7.SCC.1], which set aside the earlier decision of a three-judge Bench of the Supreme Court in Air India Statutory Corporation vs United Labour Union [(1997).9.SCC.377]. These two decisions in fact show the dividing line between the social democratic period of Indian labour jurisprudence and the globalised period where rights were disregarded and profi t- making was the sole objective. In the Air India Statutory Corporation case the Supreme Court interpreted the Contract Labour Act, 1970 in a straightforward and logical manner keeping in view that the Statute was enacted in order to ameliorate the harsh and terrible conditions under which contract labourers toiled in this country. They had no security of tenure and could be fi red at will. They were invariably paid less than the minimum wage. And they toiled for decades as contract labour without the chance of becoming permanent even though they were engaged in regular work positions. Their conditions were akin to those of slave or bonded labour. Any protest, from their side, would invariably result in the employer telling his contractor to get rid of the workmen. Workmen, thus terminated, had little recourse against the principal employer and would have to pursue an illusory fi gure who had no existence apart from his contract with the principal employer. In short, the contractor would disappear into thin air. Often the contractor would pretend to close down his work on a labour

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |165 CHAPTER SIX dispute arising, get rid of the workmen and then pretend to start a new contract in his wife’s name with fresh workers. The Contract Labour Act was intended to extricate contract workers from this sorry state of affairs. Section 10 of the Contract Labour Act provides a remedy for contract workers in case the work is of a permanent nature. Thus, where contract workers continue working for long periods of time, often under different contractors but at the same work place, workmen could approach the Contract Labour Board for a recommendation to the effect that the contract labour system be abolished. The matter would then go to the appropriate government which would consider the recommendation and then issue a notifi cation ordering the abolition of the contract labour system. A farcical dispute arose in law over whether the abolition of the contract labour system would result in the absorption of workmen as permanent employees. Obviously it would. The whole idea of the Statute was that, for permanent work, there should be permanent workers. Employers, on the other hand, argued that no such conclusion could be drawn. Ultimately the Supreme Court, in the Air India Statutory Corporation case, took the view that, on abolition of the contract labour system, the workers would be deemed to be absorbed on a permanent basis. But the imperatives of globalisation could not possibly accept this conclusion. The employers want “hire and fi re.” The only way this can be achieved is by keeping workers in a permanent state of insecurity. The Supreme Court constituted a fi ve-judge Bench in the Steel Authority of India Ltd (SAIL) case and, in a convoluted judgement, held that the abolition of the contract labour system could not result in the absorption of labour. Thus, the abolition of the contract labour system, in effect, resulted in the abolition of the rights of contract labourers. A study done, of the effect of the SAIL judgement on millions of contract labourers throughout the country, would show that, as a result of the SC decision, litigation on contract labour dropped dramatically; existing cases were treated very shabbily. Millions of contract workers were victimised, permanent work positions were converted on a very large scale into contract labour employment and these labourers worked on less than the minimum wage in harsh and unsafe conditions without any legal remedy. Today, both in the public as well as in private sector, about 80 percent of the work force is on contract. At best the wage paid would be the minimum wage even for workers who are nearing retirement. Such are the conditions in which the workers fi nd themselves. No decision of the Apex Court has caused so much misery to the working people as the SAIL judgement has. By holding thus, the Apex Court effectively destroyed a social legislation meant for the upliftment of contract labour and acted directly contrary to the mandate of Parlia- ment. This denuded contract labourers of their rights under the Statute. Casual workers Five years later came the decision of the Supreme Court in Secretary, State of Karnataka vs Umadevi (2006) 4 SCC 1 where a fi ve-judge Constitutional Bench of the Supreme Court put the fi nal nail in the coffi n of labour rights by holding that ad hoc, casual and temporary employees, who were taken on duty by the employer contrary to the establishment rules, cannot seek regularisation of their services even if they have been employed for more than a decade on continuous work. The logic was that all such employees were back door entrants and deserved no sympathy |166 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR because they deprived other potential aspirants of employment. Public employment was to be done in accordance with the rules and any other kind of recruitment was frowned upon. All this sounds fair enough. But the end result was that millions of casual and ad hoc workers, who had worked continuously for long periods of time in permanent work positions, were then destined to continue as such for the remainder of their lives or, worse still, face termination of their services. Many of them were qualifi ed. Most of them had acquired skills during employment. They were needed. In most cases their services were appreciated. They were loyal to the organisation and an asset to it. In such circumstances to condemn them to permanent temporariness or to remove them from services, almost at the fag end of their career, was gross injustice. And if indeed they were back door entrants, who, pray, had ushered them in? The recruitment of casual and temporary workers, in permanent work positions, was done by the top management, in all cases, for various reasons which benefi ted the management itself. A casual worker would do the same work as a permanent employee on less than the minimum wage and without provident fund, gratuity, bonus or leave. Millions of such workers were employed in the public sector which is supposed to be, according to the Apex Court, a model employer. Many millions more were employed thus in the private sector breaching a basic principle of labour jurisprudence − that permanent work implies a permanent work position and permanency for the workmen. Yet in Umadevi’s case not one of those employers, who recruited the workers, was punished. It is they who knew the rules and breached them, not the workers. The workers could not, in their wildest imagination, understand that their recruitment, on pitiable wages and unfair working conditions, was illegal. Thus the Umadevi decision further victimised the victim. It is said, in Umadevi, that employment should always be in accordance with the rules. This means that posts will be advertised and that, if there are permanent work positions, casual workers would not be taken for such work. And yet, two years after Umadevi, employers, in the public and private sector, merrily continue recruiting casual workers in permanent work positions. The observations of the Apex Court in Umadevi’s case is a double edged sword. It constitutes a prohibition on the recruitment of casual workers, except for casual work, and, as stated above, it punishes the workmen for being in the establishment. The other edge of the sword, namely, the injunction against back door entry has never been used. No employer has been prohibited from continuing with the back door entry system. In fact, in case after case, the courts are told, and let pass, that government has imposed a cut in permanent recruitment and has reduced the number of sanctioned posts under globalisation and that therefore, it is not possible to increase the number of permanent work positions. But the work of the departments is increasing. Therefore, scope for back door entry also increases. No punitive action has ever been taken against any public sector employer for bringing in back door entrants, the Umadevi case notwithstanding. The long and the short of the matter is that Umadevi was intended to prevent casual workers in the public sector, who had a genuine case for regularisation, from becoming permanent. Only history will decide whether such a course of action was justifi ed. Between these two landmark decisions came a host of mainly two-judge Bench decisions of the Apex Court that undermined labour law completely. What is sad about these decisions is that the clamp down was totally unnecessary in most cases. If labour is violent the courts intervene to offer discipline. If labour is unproductive, the courts intervene to improve productivity. The tragedy KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |167 CHAPTER SIX of this period, of judicial decision making, is that it took place at a time when labour was completely subdued, disciplined and productive. The various reports, coming from the government on the labour scene, indicated that most of the labour disputes were unrelated to labour agitations. The labour movement was in a state of militancy in the 80s but had calmed down by the 90s. In fact, it was the employers who were acting militantly everywhere. Workers were locked out for years on end, not because of any agitation, but on account of the fi nancial problems of the management. Instead of closing down or retrenching the workers, closures, in fact, were resorted to in the guise of lockouts to avoid paying workers their legal dues. Millions of workers, in factories throughout India from the 90s onwards, went home or died without getting the payment of their legal dues. Much of the litigation in the courts, from the 90s onwards, related to the recovery of legal dues. A large bulk of the litigation was in respect of the unfair treatment of contract and casual workers. Thus labour lawyers, who were engaged in insurgency litigation in the 80s, were reconciled to poverty litigation in the 90s. It was in these circumstances that the Apex Court intervened and demolished the last vestiges of labour rights. Back wages Take the labour tribunal cases relating to payment of back wages for workers who had been wrongfully dismissed from service and then reinstated with full back wages. Why was it so important for the Apex Court to take such workers and make a case in point of them? Why was it necessary for the Court to reverse all the earlier decisions to the effect that a reinstated worker would get backwages? Those who practice on the side of labour realise that, in the vast majority of cases, workmen, who are dismissed from service, suffer terrible consequences. Their families are broken. Their children are taken out of schools. Family members die only because the workman is no longer able to provide medical care for them. The workman, and his family, is traumatised. The worker has to fi nd a lawyer and has to suffer legal proceedings for a decade if not more. He has to fi nd money to pay his advocate. The employer fi les appeal after appeal and even the lowest worker will be dragged right upto the Supreme Court. When the termination was illegal why should the workman not draw full backwages. And even if the workman has been fortunate to fi nd temporary employment elsewhere what difference does it make? Can anyone really compensate for the decade of mental trauma and family suffering? Can payment of backwages ever compensate for a loved one who could not be saved because money for medicines was not available? Who will compensate for children being pulled out of school? The manner in which two-judge Benches of the Apex Court bypassed the three-Judge Bench decision in Hindustan Tin Works Pvt Ltd vs Employees [(1979).1.SCR.563], leaves much to be desired. The matter, on account of the disagreement therin, should have been referred to a larger Bench. This was not done. In the Hindustan Tin Works case, the Apex Court said that once the termination of service is set aside the workman is bound to be treated as if in service and would be paid full wages for the entire period of unemployment. Wages have to be paid. The Apex Court said, “where termination of service is questioned as invalid or illegal the workman has to go through the gamut of litigation. His capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief

|168 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR is granted. More so in our system where the law’s proverbial delay has become stupefying. (Otherwise he) would be subjected to a sort of penalty for no fault of his. Therefore a workman whose services have been illegally terminated would be entitled to full backwages. Any other view would be a premium on the unwarranted litigative activity of the employer.” This position was taken by another three-Judge Bench of the Supreme Court in Surendra Kumar Verma vs CGIT [(1981).1.SCR.789]. Starting with Hindustan Motors Ltd vs Tapan Kumar Bhattacharya [(2002).6.SCC.41] come a series of two-Judge Bench decisions of the Apex Court. each one of them seems to be questioning the principle of payment of backwages on an order of reinstatement being made. Many of the judgements do not take note of the earlier binding precedents of the larger Benches. In General Manager, Haryana Roadways vs Rudhan Singh [(2005).5.SCC.591], it was held that the duration of services was an important consideration for deciding backwages. How was this to be so? If a workman has worked for fi ve years, and the litigation goes on for fi fteen, are the workman’s backwages to be taken away merely because the employer is a vexatious litigator? In Allahabad Jal Sansthaan vs Daya Shankar Rai [(2005).5.SCC.124] backwages were denied on the ground that the workman did not contribute to production as he was not on work ! This was taken to its logical conclusion in Reserve Bank of India vs Gopinath Sharma [(2006).6.SCC.221] where the Apex Court went to the extent of saying that the workman was not entitled to backwages on the principle of “no work no pay.” Any labour lawyer knows that this principle applies only when the worker is found to be at fault in withdrawing his labour and has no relevance whatsoever to a situation where the termination of services of an employee has been declared illegal by the industrial tribunal. At about the same time there are a series of decisions of which State Grassware Corporation Ltd vs Udai Narain Pandey [(2006).1.SCC.479], holding that the workman was required to plead and prove that he was not gainfully employed after the termination of his services, thus reversing the earlier trend holding that the employer had to lead evidence to the effect that the workman was gainfully employed. It is diffi cult to understand how an unemployed workman is to lead evidence regarding unemployment. Globalisation There is a not-so-surprising observation in the decision in paragraphs 42 & 43 where the Court says, “a person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an industrial court shall lose much of their signifi cance. The changes brought about by the subsequent decisions of this court, probably having regard to the changes in the policy decisions of the government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.” For a two-judge Bench, of the Apex Court, to give its stamp of approval to globalisation, privatisation, outsourcing and the prevailing market economy made very depressing reading. Make no mistake about it, the poor are against globalisation, while the rich are in favour of it. This is true not only of the poor and working people in India, but also of the entire developing world. No arguments were addressed to the Court on these issues. No data was presented. No issues were framed. Parties were not aware of the Court’s distinct bias in favour of globalisation. How then KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |169 CHAPTER SIX did this happen? The Apex Court, of this country, is not expected to take such a pronounced stand on an issue so important to the lives of the working people without a proper issue being framed in an appropriate case. Moreover this was an issue that only a Constitutional Bench of the Court could decide. In State of Punjab vs Devans Modern Breweries Ltd [(2004).11.SCC.26], a minority dissenting judgement explained the importance of globalisation in an extraordinary fashion. The Court said “In fact, the states are encouraging liberalisation to such an extent that in the near future alco- hol beverages may be allowed to be sold in small grocery shops. The executive authorities are contemplating to grant permission to open liquor shops at the airports. The society has accepted pub culture in the metros. A view in the matter, therefore, is required to be taken having regard to the changing scenario on the basis of ground reality and not on the basis of the centuries’ old maxims.” And what is wrong with centuries-old maxims? Are all these to be swept aside because of globalisation? The old maxims taught us to respect the environment. Are we now to disregard them because of the sort of unrestrained development that globalisation requires? The old maxims taught us to treat labour with dignity. Must we now have hire and fi re, and all our workers in temporary work positions for all their lives? Our maxims taught us that education should never be a profi teering venture and that all the people of India rich or poor have a right to be educated. Should we now have, as the Apex Court has dictated in TMA Pai Foundation vs State of Karnataka [(2002).8.SCC.481], unregulated commercialisation of education because of the imperatives of globalisation? Our Constitution tells us that all persons have a right to healthcare and that persons below the poverty line have a right to free medicines and treatment. Have we not switched over to the user fees system dictated by the World Bank where even the poor have to pay for medicines, bandages, food and the hospital bed, otherwise they are evicted? There is much to be said in favour of the century old maxims. Misconduct At about the same time a series of decisions were reported on the aspect of misconduct by workmen. There is absolutely nothing wrong in punishing a workman for serious misconduct on grounds of assault, sabotage, gross indiscipline and so on and so forth. But why should there be so much noise made over minor instances of misconduct. Must a workman be pilloried in public over the slightest indiscretion of any kind so that others take note and desist from taking a similar course of action? Take the bus conductor cases. Corruption is rampant in society and the courts can do nothing about it. But bus conductors who are found, as a fi rst offence, to have a small unexplained amount of money on his person during a check, or are found to have not given tickets to some passengers, or the like, are now the subject of a series of Apex Court decisions on the point. In Regional Manager RSRTC vs Sohan Lal [(2004).8.SCC.218], a bus conductor, against whom an allegation was made that he had not issued tickets to six passengers, had his services terminated. In the High Court the conductor offered to forego his entire salary for the period of unemployment and agreed that he would be taken as a fresh employee. Holding that the termination of services was disproportionate, the High Court accepted the offer of workman. This was set aside by the

|170 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

Supreme Court saying ”the quantum of loss is immaterial.” Similarly in V Ramana vs AP SRTC and others [(2005).7.SCC.338] where the allegation against the bus conductor was that he had not issued tickets and maintained records properly, the Supreme Court upheld the extreme punishment of termination of services. In LK Verma vs HMT Ltd [(2006).2.SCC.269], the Supreme Court explained the reason for its toughness in the following words: “In several decisions of this Court it has been noticed how discipline at the workplace/ industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity.” But as pointed out in the earlier part of this article, there is no evidence at all to indicate, that after the 1990s, there has been any labour militancy at all. In fact , all the reports of the government indicate that the employers are on the offensive, aggressively locking out workers, absconding with their legal dues and using strong arm tactics in many parts of the country to dissuade workers from joining trade unions. It is inconceivable how the Court could conclude that stronger measures were necessary because of indiscipline in the work force. 240 days Then we have a series of decisions relating to retrenchment compensation after the workman had put in 240 days of continuous service. In this series the Apex Court reversed the burden and placed it on workman to prove that he had indeed put in 240 days of work. Additionally, ,the Court said that the fi ling of affi davits, or the giving of testimony on oath, would not suffi ce. The workman would have to produce the wage slip showing attendance and some record showing payment of wages, to succeed in the case. In the earlier line of decisions the courts have ruled that the employers were bound to produce the muster and wage registers and if they do not do so, adverse inference would be drawn against them. This was now reversed by the Court in the recent decisions and even if the employer failed to produce the registers, adverse inference would in many instances not be drawn by the Court. The requirement − that the workman should produce his attendance and wage record − fl ies in the face of the reality of modern day contractual employment. Contract workers are hardly ever given wage slips or attendance records. The large majority of contract and casual workers in the country would have absolutely no record of the payment of wages or of attendance at the factory. To tell such workers − that their oral testimony and the testimony of their co-workers would not be acceptable − is tantamount to telling them not to come to Court at all. In RM Yellatti vs Assistant Executive Engineer [(2006).1.SCC.106], the Supreme Court, while noting that daily wage earners were not given letters of appointment or letters of termination or any written document which they could produce as proof of receipt of wages, nevertheless held that “mere affi davits or self serving statements made by the claimant workmen will not suffi ce.” Similarly in Rajasthan State Ganganagar S. Mills Ltd vs State of Rajasthan and another [(2004).8.SCC.161], the Apex Court held that, non-production of the muster roll by the employer, was of no consequence. In Batala Coop. Sugar Mills Ltd vs Sowaran Singh [(2005).8.SCC.481] the Supreme Court held

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |171 CHAPTER SIX that, unless the casual employee provided “proof of receipt of salary or wages for 240 days or order or record of appointment for this period”, his case is likely to be dismissed. Subsistence allowance Likewise on the issue of subsistence allowance it was quite unnecessary for the Apex Court to intervene on an issue that was so well settled in law. The Apex Court has always held that there can be no compromise on the payment of subsistence allowance during the pendency of a domestic enquiry. Payment was not predicated upon prejudice. It had to be paid no matter what. In Captain M Paul Anthony’s case [(1999).3.SCC.679], the Apex Court compared the non-payment of subsistence allowance with “slow poisoning.” Disregarding this long line of decisions the Apex Court, in Indra Bhanu Gaur vs Committee, Management of MM Degree College and others [(2004).1.SCC.281], for the fi rst time introduced the element of prejudice and held that, unless prejudice was shown due to non-payment of subsistence allowance, the termination could not be set aside. The Court found that “the appellant could not plead or substantiate that non-payment was deliberate or to spite him or due to his own fault.” This requirement, that the workman should show that the non-payment was deliberate and malafi de, changed the law on the subject completely without reference to the earlier decisions. Industry Thereafter, a fundamental attack on one of the basic pillars of labour jurisprudence viz. the issue as to what constitutes an industry within the meaning of 2(s) of the Industrial Disputes Act, was made before the Supreme Court recently. The matter was heard by a 5-Judge Bench and was referred to a larger Bench. All the fi ve judges unanimously found that the decision of Justice Krishna Aiyer and others, giving an expanded defi nition to the section, deserved reconsidera- tion. Several two-Judge Benches of the Supreme Court had on earlier occasions attempted to reopen the issue but were unsuccessful in the matter. These were State of Gujarat vs PN Parmar [(2001).9.SCC.713]; and Coirboard vs Indira Devi [(1998).3.SCC.259]. Now with the decision of the Constitutional Bench in State of UP vs Jai Bir Singh [(2005).5.SCC.1], the stage is set to fundamentally undermine a basic principle of labour law. If the matter is reconsidered, it is possible that a large number of establishments will fall outside the purview of labour law and workers − particularly those in government establishments, agriculture, forestry departments, government projects, educational institutions, hospitals, clubs and so on − will be denuded of their protection under labour law. Behind the legal battle lies a political battle where forces at play are intent on completely demolishing labour law. Natural justice Then natural justice, for workmen during a domestic enquiry, took a hit in Divisional Manager, Plantation Division, Andaman & Nicobar Islands vs Munnu Barrick and others [(2005).2.SCC.237] where the Apex Court held that, even if the domestic enquiry report is not provided to the workman, even then the termination of services will not be set aside unless the workman establishes prejudice having regard to the “useless formality theory!”

|172 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

11(a) Industrial Disputes Act, 1947 In Mahindra and Mahindra Ltd vs NB Narawade [(2005).3.SCC.134], contrary to the decision in The Workmen of M/s. Firestone Tyre and Rubber Company of India (Pvt) Ltd versus The Manage- ment [(1973).1.SCC.813)] and a host of subsequent decisions, where the Apex Court held that, under Section 11 (a) of the Industrial Disputes Act, the Industrial Tribunal has jurisdiction to reappraise the entire evidence and come to an independent decision afresh; the Supreme Court held that the discretion, under Section 11(a), is available only when the punishment is disproportionate enough to disturb the conscience of the Court or where there are mitigating circumstances requiring the reduction of the sentence − such as the past conduct of the workman. Abandonment In UP State Bridge Corporation Ltd and others vs UP Rajya Setu Nigam S. Karmachari Sangh [(2004).4.SCC.268], once again, contrary to a long line of decisions of the Apex Court, to the effect that abandonment of service by an employee must have the element of mens rea, or the intention to abandon service, the Supreme Court held, in a case of an illegal strike, that workmen’s services could be terminated on the ground of abandonment solely on account of participation in an illegal strike. Strike Continuing on the issue of strike, in TK Rangarajan vs Government of TN and others [(2003).6.SCC.581], the Supreme Court went to the extent of saying that there is no legal or statutory right to go on strike. This is strange particularly in view of the fact that all employees, proposing to go on strike, have to give a notice to the employer and, once that notice is given, unless the government prohibits the strike by notiﬁ cation, the strike is deemed to be legal. The law on this point is well settled by a long line of decisions of the Apex Court. To say therefore, that there is no legal or statutory right to go on strike, is contrary not only to the Statute but also to the decisions of the Supreme Court. The decision makes no reference to the long line of judgements of the Supreme Court itself. The Court goes to the extent of saying that a strike can be resorted to no matter how unjust the matter may be. Now there are legal and justiﬁ ed strikes as explained by the Supreme Court in the India Marine Service Pvt Ltd vs Workmen [(1963).3.SCR.575]; and The Statesman Ltd vs Their Workmen [(1976).2.SCC.223]. Yet, in the present decision, the Supreme Court makes a sweeping condemnation of the strikes in the following terms: “Strike as a weapon is mostly misused which results in chaos and total mal-administration. Strike affects the society as a whole.” In Ex Captain Harish Uppal vs Union of India [(2003).2.SCC.45], the Supreme Court held that lawyers have no right to go on strike, not even a token strike, even for a just cause. If this was the law in Pakistan, General Musharaff would still be its President! Privatisation BALCO Employees Union vs Union of India [(2002).2.SCC.333] is the leading judgement of the Apex Court in the period of globalisation on the issue of privatisation. The Court held that a disinvestment policy, and individiual instances of privatisation, cannot be examined by the Court

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |173 CHAPTER SIX at all. In so holding the Supreme Court missed the bus in the sense that there were numerous instances, where privatisation of public sector companies, was done, by government, in a corrupt and non transparent manner to benefi t ministers. In all of these cases, the BALCO judgement was cited to tell the judges of the lower courts that the issue could not be touched in any way at all. This judgement has done grave disservice to the nation. Had the courts been permitted to review cases of privatisation − on the grounds of lack of transparency, or of corruption, or malafi des, or oblique motive − then the public exchequer would have been saved thousands of crores of rupees and valuable public property would not have been frittered away for private gain. Even the request of the Union − that the prospective buyer should disclose its plans for investment and modernisation of BALCO after disinvestment − was rejected by the Supreme Court. Despite the decision of the Apex Court, in the National Textile Workers Union case, the Supreme Court, in the BALCO case, held that the workers were not to be consulted. The most damaging aspect of the decision was the observation, in para 71, which was totally uncalled for particularly in view of the fact that the Supreme Court itself admitted that the decision of the Apex Court, in Samatha vs State of A.P. [(1997).8.SCC.191], was not applicable in the BALCO case. Nevertheless, the Supreme Court observed that it had “strong reservations with regard to the correctness of the majority decision in the Samatha case.” Now Samatha was a three-Judge Bench landmark decision of the Supreme Court which held that no person, who is not a member of the Scheduled Tribes, can take the lands of the Tribals by way of transfer. This judgement is widely hailed, by Tribal organisations throughout the country, as a landmark judgement which helped prohibit the transfer of lands from Tribals to non Tribals throughout the country. To cast a shadow of doubt on a three-Judge Bench decision in the BALCO case, where the Samatha judgement was not applicable at all, did grave disservice to all the Tribals living in the scheduled areas of this country. Criminal proceedings and domestic enquiry Criminal proceedings stand on a different footing from domestic enquiries. Therefore, if a workman is honourably acquitted in a criminal trial the same may not be true of a domestic enquiry. A domestic enquiry, proceeding on the same set of facts, must be quashed on the principle of issue estoppel. Thus, in Krishnakali Tea Estate vs Akhil Bharatiya Chah Mazdoor Sangh and another [(2004).8.SCC.200] the Supreme Court permitted the domestic enquiry to continue even though the criminal court had honourably acquitted the workman. Reinstatement Finally, in Haryana State Coop. Land Development Bank vs Neelam [(2005).5.SCC.91], the Su- preme Court made reinstatement of workmen very diffi cult by holding that if the vacancy created, by the termination of service, is fi lled by a subsequent worker; then, even if the tribunal holds that the termination of services illegal, reinstatement may not be ordered on account of the subsequent fi lling of the vacancy. It is thus now open for the employers to contend that the vacancy created, by termination of services, was subsequently fi lled and thereby defeat the workman’s legitimate claim for reinstatement notwithstanding the illegal termination of services. Sickness, DRT, SARFAESI and recovery of dues In thousands of cases, across the country, workers − in sick or closed companies − are being

|174 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR denied their earned wages and legal dues. Hundred of cases are pending before the BIFR and the AAIFR, some of them for over a decade. Companies routinely pretend that they are seriously interested in revival; in reality their only concern is to use the shield of Section 22 of SICA to keep the creditors and the workers at bay while the assets of the sick companies are clandestinely sold leaving nothing behind but an empty husk. That all this goes on in the presence of BIFR and AAIFR is a matter is serious concern. It is high time that an independent social audit is done of these institutions, particularly as the trade unions are extremely frustrated with their functioning. With the enactment of The Recovery of Debts Due to Banks And Financial Institutions Act, 1993, numerous proceedings for recovery have been fi led by banks and other fi nancial institutions. Shockingly the Debt Recovery Tribunal (DRT) made order after order permitting sale of the land, machines and factories thus jeopardising the workers’ employment and with hardly a care about the recovery of the dues of workmen. In the era of globalisation nobody was concerned about the payment of the workers’ dues. Banks, including nationalised banks, recovered their amounts fully while tens of thousands of workers and their families starved due to the non-payment of earned wages and legal dues. The main decision of this Court on this point is National Textile Workers Union vs PR Ram- akrishnan and Ors [(1983).1.SCC.228] wherein certain observations were made, in the majority judgement of the Constitutional Bench of this Court, regarding certain contemporary international common law principles regarding the role of workmen in public limited companies. In the context of workmen seeking to assert their right to oppose the winding up of a company and to make alternative suggestions to secure their livelihood, this court held: “It is well established principle of administrative law that no order entailing adverse civil consequences can be made by the State or a public authority unless the person affected is afforded an opportunity to show cause against the making of such order by controverting the allegations made against him and presenting his own positive case…The concept of a company has undergone radical transformation in the last few decades…The traditional view that the company is the property of the shareholders is now an exploded myth…The ownership of the concern was identifi ed with those who brought in capital. That was the outcome of the property minded capitalistic society in which the concept of company originated. But this view can no loner be regarded as valid in the light of the changing socio-economic concepts and values…It is true that the shareholders bring capital, but capital is not enough. It is only one of the factors, which contributes to the production of national wealth. There is another equally, if not more, important factor of production and that is labour…In fact, the owners of capital bear only limited fi nancial risk and otherwise contribute nothing to production while labour contributes a major share of the product. While the former invest only a part of their moneys, the latter invest their sweat and toil, in fact their life itself. The workers therefore have a special place in a socialist pattern of society. They are no more vendors of toil; they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital. They supply labour without which capital would be impotent and they are, at the least, equal partners with capital in the enterprise. Our Constitution has shown profound concern for the workers and given them a pride of place in the new socio-economic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for mil-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |175 CHAPTER SIX lions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual…No doubt, it was the creative genius of the bourgeoisie that invented the corporations and the companies, invested them with a corporate soul and a juristic personality and called them legal entities in order to meet the growing and complex demands of modern industry and management, to conduct business and commercial activities more conveniently and effi ciently and, essentially, to foster, consolidate and stabilise the capitalist system of society under whose aegis alone the exploiting class could thrive and continue to exploit the working class. Corporations became the symbol of competitive capitalism. But the historical processes continue at work. The movement is now towards socialism. The working classes, all the world over are demanding ‘workers’ control’ and ‘industrial democracy.’ They want security and the right to work to be secured…Prof. Grower in his The Principles of Modern Company Law says, One section of the community whose interests as such are not afforded any protection, either under this head or by virtue of the provisions for investor or creditor protection, are the workers and employees of the taken over company. This is a particularly unfortunate facet of the principle that the interest of the company means only the interest of the members, and not of those whose livelihood is in practice much more closely involved.” Then in Allahabad Bank vs Canara Bank [(2003).4.SCC.406], in a stunning judgement the Su- preme Court, interpreting Section 529-A of the Companies Act, held that workers’ dues stand fi rst in priority over those of secured creditors. This judgement, which did substantial justice to the workmen, was subsequently down played by another decision in the Central Bank’s case. Then the Securitisation and Reconstruction of Financial Assets and Enforcement of Security In- terest Act 2002 (SARFAESI) was enacted and this Statute did not even have the bare minimum protection for the workers in terms of 529-A of The Companies Act as was found in Due to Banks And Financial Institutions Act, 1993. As a result, properties of sick companies were taken over by the asset reconstruction companies and sold for a song. The banks were paid their dues while the workers starved. Once again the Apex Court intervened in a negative manner in the Central Bank of India vs Siriguppa Sugars and Chemicals Ltd [(2007.8.SCC.353)] holding that, in the absence of winding up, the workmen were to be treated as unsecured creditors. This decision did grave disservice to millions of workers in the country who were employed in sick or closed factories where winding-up proceedings had not commenced. These factories were in such a bad shape that the properties and assets were slowly frittered away leaving only an empty husk. Were workers to be penalised and denied their legal dues merely because a winding- up petition had not been fi led? Is it correct, in law, that workers are to be treated as unsecured creditors? Does this proposition not imply that the legal dues of workers will never be paid. Or they might be paid ling after the death of the worker. The Right to Life, which is a common enough law, implies the securing of the means of livelihood. This far supersedes the right of a bank to make profi ts. This common law right is reinforced in the case of nationalised banks governed by the Constitution of India. Workers ,of enterprises that have admittedly gone bankrupt (though a winding up petition has not been fi led), have a fi rst priority in contemporary International Common Law, and under the Constitution, with respect to |176 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR recovery of earned wages, provident fund, gratuity and other legal dues. This is in preference to all other creditors including secured creditors who are, in this case, mainly nationalised banks. There is no decision of Supreme Court directly on this point. The presumption, made in cases tangentially on this issue, is that, in the absence of a Statute akin to 529-A of the Companies Act in the case of winding up, workers must be treated as unsecured creditors. This effectively deprives them of their entire legal dues and makes the mistake of ignoring the application of common law principles that can well be made applicable when Statutes are silent on an issue. These presumptions also ignore well-settled Constitutional Law principles for the preservation of life and bypass the equity Jurisdiction. The legal presumption − to the effect that workmen must be treated as unsecured creditors − has drastic national consequences in that workmen, throughout the country, will suffer destitution while the nationalised banks recover their claims. This cannot be allowed to happen. Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Se- curity Interest Act 2002, to the extent that it excludes the prior realisation of the workmen’s interest over all other creditors, is unconstitutional and is arbitrary, harsh and discriminatory. In the alternative, Section 13 may be read down as being subject to the prior realisation of the workmen’s interest and not free from encumbrances as held by the High Court. Conclusion The Judiciary has abandoned the working class. Globalisation had caused a sea-change in the thinking of judges. The impressionist view that socialism is dead and that globalisation offers a panacea for everything will soon be proved wrong as the crisis in the present international fi nancial situation demonstrates. Millions of middle class people have been rendered destitute by the meltdown in the markets. Workers provident fund amounts were also directed to be invested in the share market by no less a person than the Prime Minister of India. Globalisation no longer glitters but the damage caused by the decisions of the last ten years to labour rights is irrevers- ible. Contract and casual workers fell into destitution. Labour and industrial courts became virtually defunct. The working class lost faith in the Judiciary because it failed to maintain a balance between capital and labour. Democracy was delivered a fatal blow.

–Combat Law November-December 2008

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |177 DECLINE IN THE CONDITIONS OF CONTRACT WORKERS

lthough the Contract Labour Act was passed by Parliament several years ago, the condition of contract workers has steadily worsened. the government has often spoken of abolishing Acontract labour, but the truth of the matter, is that the use of contract labour has steadily and dramatically increased. Paradoxically, it is not the small-scale sector that is most guilty of the misuse of the system, but the public sector and large-scale industries. The bigger and richer an organisation is, the more it makes use of contract workers in the place of the permanent workers. The performance of the government, the contract labour board and the ofﬁ cers of the commissioner of labour has been uniformly pathetic. Those, appointed to protect contract workers, have perhaps been instrumental in the deterioration of their lot, perhaps due to their hyper-technical and uncaring approach. Parliament itself set the ball rolling by introducing the Contract Labour Board as the saviour of the workers. But the history of the functioning of administrative non-Judicial bodies in India has shown that they operate outside the pale of the law and are answerable to no one. Which contract worker will ask the correct question? And its mere existence meant that contract workers were barred from seeking relief under the other laws of the land. It was all very well for the Supreme Court to say that the Act was a complete code and that the workers had to seek relief only there under. But was the Act really an alternative efﬁ cacious remedy? A careful study of the functioning of the Board, over the last decade, will show that it was not. The Court’s approach has been a mixed one. Judges have, only too often, said that no employer- employee relation exists between the contract workers and the company. This has only worsened the lot of contract labourers. Krishna Iyer’s perceptive remarks in the Royal Talkies case and Hussainbhai’s case − that the Courts must lift the veil and not be misled by legal appearances − is given the go by. Never mind if it is, according to our system of law, a binding precedent. Krishna Iyer’s opinion is treated like a feeble and erratic voice. Is Iyer’s opinion feeble or is the audience deaf? All said and done, contract workers must see this period as reminiscent of the dark ages. The whole world talks about improving their condition and then systematically sets about destroying them. The approach is ingenuous to say the least. Creative thinking at its very best indeed! The scenario goes like this:

|178 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

Company A − rolling in wealth and desiring a pliant, impoverished and unorganised work force − begins to induct contract workers in permanent work positions where the work is perennial. To complete the picture and maintain some level of credibility, Company A realises that it must have a contractor too. So, a friend of the manager in Company A is roped in as contractor. Some times, even contracts are entered into for the sake of formality. The work, done by these workers, is invariably part and parcel of the work of the establishment. Some of the principal areas of employment of contract workers - canteens, gardens and security - all satisfy the organisational test. Control and supervision is often not required to be done, and if done, the company plays a major role. Things go on in like manner for years on end. Rules and Regulations, under the Contract Act, are ignored. Information, required to be given to the government and Board, is rarely submitted. Licences and Registration certifi cates, required to be obtained, are rarely applied for. The entire system operates in a clandestine, surreptitious and illegal manner. Naturally; since the inspectors never inspect, the Board does not abolish and the government does not care. Then one day, in utter desperation, the contract workers approach the government and the Board and petition them to inquire and thereafter recommend the abolishment of the contract labour system. This is interpreted, by the concerned offi cers, as the abolishment of contract labour itself; perhaps just as Garibi Hatao is meant to be the abolishment of poor people and not of poverty. As soon as a union is formed, or a petition is made to the Board or government, the company and the contractor swing into action. Now, for some strange reason, either the contractor decides, all of a sudden, not to do business and surrenders his contract, or the company terminates the contract (with the contractor smiling smugly in the background). Believe it or not, nothing less than constitutional arguments are used in, and upheld by, the courts. The right to do business is a Fundamental Right. The same is true of the right not to do business (Excelware’s case). There- fore, the courts must not interfere in the exercise of these Fundamental Rights. The argument is specious and strained but has no one heard of the dictum that Fundamental Rights cannot be exercised to do harm? And so the contract ends. The contract workers, being supposedly employees of the contractor alone, have no cause of action against the company. They land up on the streets fi ghting a legal battle against a contractor whose protean legal form, like the colours of a chamelion, changes rapidly. But like the weed he perseveres for his own purpose. The day after relinquishing the contract he enters into an identical one, now on his wife’s name. Geeta Caterers becomes Neeta Caterers and later Sita Caterers. Feeding of the sweat of workers, he remains obnoxious as ever, smug-faced in Court, quick to raise parrot-like the “preliminary objection” − that there was no employer-employee relationship between the workers and the company − that the question of reinstatement could therefore not arise. The Board and government, having no power to intervene in the matter and in any

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |179 CHAPTER SIX case accustomed to taking years to decide every petition made to it, looks on passively while the contract workers are terminated for no other reason but because they dared to form a union or petition the board or government. “Would your Lordship kindly deal with this preliminary point fi rst as it goes to the root of the matter?” Time passes. The Judicial process is slow. Painfully slow to the impoverished workers who can now see fresh recruits working in their place. “Would this Court grant interim relief to the workers and reinstate them pending hearing of the case? Would this court restrain the company from recruiting fresh workers?” “Of course not. Reinstatement is a fi nal relief, it cannot be granted at an interim stage.” A standard answer to a standard situation. Standardised exploitation. Punished for daring to seek legal redress. Years pass, workers drift away, the case languishes... What in particular must be investigated are the following: a) Why is it that, in the granting of licences and registration certifi cates and the extensions to the same, the workmen, or the union, are not given notice. After all when a statue is silent on the question of notice the principles of natural justice may be deemed to apply. Since the workers are directly affected by the granting of licences/registration certifi cates a show cause notice must be given to them, by the State, explaining why contract labour has been disallowed from employment. The present clandestine method of functioning of the government and the Board is entirely illegal and grossly unjust. b) Why is it that ordinary contract workers are not permitted to inspect the records of the Board in respect of the contract labour system prevalent in their company? Why do the offi cers of the Contract Labour Board insist on the workers obtaining an order from Court for inspection? Why is this injustice allowed to continue when the employers have free access to all the records?

–Leading Cases on Contract Workers (Revised edition)

|180 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SC JUDGEMENT IN THE SAIL CASE

he Supreme Court, over-ruling its earlier ruling in the Air India case, held in the case of Steel Authority of India vs National Union Water Front Workers and ors that, even if the Tcontract labour system was abolished, the contract workers have no right to be absorbed as permanent employees. A legal right, to permanent employment of the contract workers where the contract labour system has been abolished, goes a long way to reducing the prevalence of the contract labour system throughout India. The stand − that no such right exists on abolition − will achieve quite the opposite. The SAIL Judgement has radically turned the clock back on the legal rights of contract workers at a time when the mantra of the international capital is wage cuts and casualisation of workforces. The issue before the Court The main issue, before the Constitutional Bench in the SAIL matter, is that of what happens to contract workers once the contract labour system is abolished under Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970. Under this section, the government can abolish contract labour in any establishment if the work is found to be, amongst other factors, of a permanent and perennial nature and incidental to the main work of the undertaking. The Act doesn’t expressly say anything about what happens to the contract workers, working in that establishment, if the contract labour system is abolished. Unions always implicitly assumed that “contract workmen” would become the permanent employees of the principal employer. Otherwise why should the Contract Labour Act be enacted, if the result of winning a case is the abolition of the employment of those who ﬁ led it? However, in the 1990s, managements started arguing, before the courts, that the Contract Labour Act doesn’t expressly lay down the right of contract workers to absorption as permanent employees. This was upheld in two cases by two-judge Benches of the Supreme Court in the case of Dena Nath vs National Fertilisers Corporation Ltd [(1992.1.SCC.695)] and Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat vs HMS [(1995.5.SCC.27)]. In the latter case, the Court held that after a notiﬁ cation, under Section 10, is issued abolishing a contract labour system, the contract workers do not automatically become permanent. After abolition they would have to raise a separate demand under the Industrial Disputes Act, 1947, for permanent employment and pursue the matter before an Industrial Tribunal. Not only would this take years, but the Court made clear that, under the industrial disputes Act, only the permanent workers could raise such a demand on behalf of contract workers. This does not apply in the case of a bogus contract. If this is the case, the workers themselves can raise the demand .

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |181 CHAPTER SIX

The Air India case This issue however then came up before the Supreme Court in the case of Air India Statutory Corporation vs United Labour Union (1997.9.SCC.377). This matter originated from a writ petition, ﬁ led in 1985, by hundreds of sweepers employed in Air India. A three-judge Bench of the Supreme Court gave a judgement categorically holding that, on the abolition of the contract labour system, the contract workers would automatically become the permanent employees of the principal employer. The Court undertook a long and detailed review of the numerous judgements delivered with regard to Fundamental Rights under the Constitution of India and emphasised that: “The Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and livable with human dignity… In other words, the aim of social justice is to attain subsequential degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane conditions of work and leisure to workman are part of his meaningful Right to Life and to achieve self expression of his personality and to enjoy the life with dignity…” The Court then went on to almost equate the Directive Principle to provide employment with the Fundamental Right to Life under Article 21 of the Constitution of India: “Due to economic constraints, though right to work was not declared as a Fundamental Right, right to work of workmen, lower class, middle class and poor people is a means to development and source to learn livelihood. Though, right to employment cannot, as a right, be claimed, but after appointment to a post or an ofﬁ ce, be it under the State, its agency, instrumentality, juristic person or private entrepreneur, it is required to be dealt with as per public element and to act in public interest assuring equality, which is genus of Article 14 and all other concomitant rights emanating therefrom are species to make their Right to Life and dignity of person real and meaningful… To the workmen, right to employment is the property, source of livelihood and dignity of person and a means to enjoy life, health and leisure.”(para 50). It was in this background that the Supreme Court held that, on the abolition of a contract labour system under Section 10 of the Act, the contract workers automatically become the workmen of the principal employer. It was stressed that there was no express right to automatic absorption provided in Section 10 of the Act as no such express provision was needed. The very concept − of abolition of a contract labour system − must mean the improvement, and not the worsening, of the lot of such workmen. Justice Majumdar, in his concurring judgement, stated that, to hold otherwise, would mean that: “The contract labourers who were earlier having regulatory protections would be rendered persona non grata and would be thrown out from the establishment and told off the gates. Then in such a case, the remedy of abolition of contract labour would be worse than the disease and it has to hold that the legislature whilst trying to improve the lot of erstwhile contract labourers... had really left them in the lurch by making them lose all facilities available to contract labour on the establishment as per Chapter V and desired them to wash their hands off the establishment and get out and face starvation... If on abolition of contract

|182 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

labour system, contract labour itself is to be abolished, it would cause economic ruin and economic death to contract labourer and his dependents for amelioration of whose lot order under Section 10 is to be passed. (para 69). Justice Majmudar stressed that once a contract labour system was abolished and the contractor disappears from the scene, the term ”principal employer” also disappeared. Of the original three parties, only two are left – the workman and the employer. The principal employer, therefore, automatically becomes the direct employer of the workman. But this is all that the Air India case laid down. It did not abolish contract labour systems per se and altogether. There is no question of permanency if the system has not been abolished and the employment of the workmen, as contract workers, would simply be regulated under the Act. In this case, the judges also upheld a very far-reaching notifi cation, issued by the central government in 1976, under Section 10 of the Contract Labour Act. By this notifi cation the employment of contract labour was prohibited for the work of sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate government under the Act is the central government. The management challenged the validity of the notifi cation on the basis that no proper investigation had been carried out under Section 10 of the Act. In rejecting this, the Court actually called for the papers regarding the investigation carried out and then came to the conclusion that, the investigation carried out, had taken into consideration all of the establishments concerned and all of the criteria laid down under Section 10. the notifi cation was, therefore, valid. Reaction to the Air India judgement The ruling in the Air India matter, especially regarding ”automatic absorption,” opened the legal doors to lakhs of contract workers throughout the country, allowing them scope for becoming permanent. Managements and their organisations, the minute the judgement came, went up in arms and called for the reversing of the judgement. In the front-line of the battle was SCOPE – the standing committee of public sector enterprises. MS Hakeem, its secretary–general, immediately issued a statement requesting the Supreme Court to review the decision as: “In today’s scenario, contract labour cannot be wished away… Employees need the fl exibil- ity to streamline their operations and produce goods and services effi ciently and at the least cost. To meet the basic requirements of business …their manpower needs will be dictated by the order book position. The workers’ need for security and social protection can be met when our industry and trade have a competitive edge in the international market.” (Times of India, September 1999). Hakeem also called upon the government to withdraw all notifi cations, so far issued under the Contract Labour Act, abolishing contract labour systems. Reference to the Constitutional Bench The public sector undertaking did get the issue of automatic absorption, as laid down in the Air India judgement referred for rehearing before a fi ve-Judge Constitutional Bench of the Supreme Court, in matters concerning contract workers in SAIL, FCI, ONGC, IAAI and numerous other

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |183 CHAPTER SIX

PSUs. However, the Air India judgement was referred to the Constitutional Bench only on the question of automatic absorption. The validity of the 1976 Notifi cation, of the central government, was not part of the reference order. The SAIL judgement The matter was heard by the Constitutional Bench and the judgement delivered on August 30, 2001: (i) No automatic absorption The Constitutional Bench totally reversed the Air India ruling and held that contract workers have no automatic right to absorption when a contract labour system is abolished. In fact it held that, once a notifi cation for abolition is issued, “the contract labour, working in the concerned establishment, ...will cease to function.” The approach of this Bench and that of the three-judge Bench in the Air India case was diametri- cally opposed. In Air India the Court held that there was no express provision, in the Contract Labour Act, for automatic absorption on abolition, as there doesn’t need to be. The whole purpose and scheme of the Act implies that there will be automatic absorption. The Constitutional Bench, however, held the absolute opposite – that the failure to provide such a right in the Act, not only meant that no such right could be inferred, but that it had been deliberately and consciously left out. The Court gave three broad reasons for reaching this conclusion. The fi rst reason was based on the costs which would be cast on managements by employing permanent workers: “We noticed that it was clear to the joint committee (who drafted the Act) that by abolition of contract labour, the principal employer would be compelled to employ permanent workers for all types of work which would result incurring high cost by him, which implied creation of employment opportunities on regular basis for the contract labour. This could as well be yet another reason for not providing automatic absorption.” Such an argument defeats the very statutory provision for abolition of a contract labour system. The Solicitor General had argued vehemently, before the Court, that if SAIL would not be able to afford the prospect of having to absorb contract labour. He, and the other management lawyers, strongly insisted on “employment generation” which they claim the contract labour system provides. The low costs, incurred by management employing contract labour for work of a regular and permanent nature, are staggering. Almost invariably, and especially in public sector undertakings, prior to unionisation, workers are not even paid the statutory minimum wage, nor given ESI or Provident Fund benefi ts. Before they joined the International Airport Employees Union, for example, trolley workers, at Sahar and Santacruz Airports, were not paid a paisa of wages. Instead, they were forced to collect ‘tips” from the passengers and from these tips actually had to hand over a percentage to the contractor. A “hafta,” from the monthly wages of the other workers (sweepers, loaders, baggage handlers, etc.), was “cut” on pay day and distributed between the contractor and the airport authorities (see ‘Airport Raj’, Lok Shahi Hakk Sanghatana, 1990). It is these ”costs” which employees don’t want to increase, and which they clothe in the phrase ”employment generation.” |184 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

The second reason, given by the Court for holding that there can be no inferred right to automatic absorption on abolition under the Act, seems to be that such a right would be unfair to the contract workers themselves: “ Section 10 is intended to work as a permanent solution to the problem rather than to provide a one-time measure by departmentalising the existing contract labour who may, by a fortuitous circumstance, be in an establishment for a very short time as on the date of the prohibition notifi cation. It could as well be that a contractor and his contract labour who were with an establishment for a number of years were changed just before the issuance of a prohibition notifi cation. In such a case, there could be no justifi cation to prefer the contract labour engaged on the relevant date over the contract labour employed for a longer period earlier. These may be some of the reasons as to why no specifi c provision is made for automatic absorption of contract labour in the CLRA Act (Page.83).” To solve this ”problem,” however, the Court didn’t hold, that in such a situation, the contract workers, who had been employed for a number of years earlier, should be absorbed. The Court, after holding that “...Contract labour working in the concerned establishment at the time of issue of the notifi cation will cease to function,” offered these contract workers the consolation that : “…the contract labour is not rendered unemployed as is generally assumed but continues in the employment of the contractor as the notifi cation does not serve the relationship of master and servant between the contractor and the contract labour. The contractor can utilise this services of the contract labour in any other establishment in respect of which no notifi cation… has been issued.” Far from the example, invariably put forward by managements of huge and sophisticated contractors like Larsen & Toubro or Gammon India, most contractors, in reality, have no work outside of one particular establishment. Many of these contractors are only marginally better off than the workmen they employ, with their ”registered offi ce” being the chawl in which they live. This is true of, say, the contractors in Hawkins Cookers for whom the local provision shop, which is nearest to his residence, is his only “registered offi ce.” These are contractors inducted by the management to deprive the workers of their rights on permanency. Once this contract goes, there is no work in any other establishment for the workers. And even if there was, which worker will litigate at huge expense for ten years or more, only to fi nd that, if he wins, the most he can hope for, if he is lucky, is a fresh employment in a different establishment on the same minimum wage etc., on contract? Only preference – through the Industrial Tribunal The Constitutional Bench has held that what all contract workers can do, once a contract labour system is abolished, is to raise a demand for absorption under the Industrial Disputes Act and litigate the matter before an industrial tribunal. All that the contract workers, even after reaching the industrial court, are entitled to, so far as permanent employment is concerned, is a “preference.” But that too, only if the principal employer “intends to employ regular workmen” for the work and if the contract workers are “otherwise found suitable” by him and they possess the necessary technical qualifi cations. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |185 CHAPTER SIX

Not only will it be very diffi cult for contract workers to achieve anything before an industrial tribunal, it will be very diffi cult for them to reach it at all. A demand, for permanency, will fi rst have to be raised before the labour commissioner and, until the demand is referred to the industrial tribunal, there is no provision for any stay on termination. Further, the demand can only be raised by the permanent workers of an establishment on behalf of the contract workers. The contract workers cannot themselves raise such a demand ( unless they allege a sham & bogus contract) as they are not considered to come within the defi nition of ”workman” under Section 2 (s) of the Industrial Disputes Act, 1947. This was made clear by the Supreme Court in the Gujarat Electric- ity Board case. There it had been held that, to claim permanency after abolition under Section 10, contract workers must follow this path of raising a demand, through the permanent workers, and proceed before the industrial court. A further problem arises in Maharashtra, where, if there is any union of the permanent workers, recognised under the MRTU and PULP Act, 1971 for a particular establishment, then only that union can raise a demand under the Industrial Disputes Act. It was precisely this long-winded and complex procedure, which had been laid down in the Gujarat Electricity case, that prompted Justice Ramaswamy in the Air India Judgement to comment: “The award proceedings as suggested in the Gujarat Electricity Board case are beset with several incongruities and obstacles in the way of contract labour for immediate absorption. Since the contract labour gets into the service of the principal employer, the union of the existing employees may not espouse their cause for reference under Section 10 of the ID Act. Moreover, the workmen are kept out of a job to endlessly keep waiting for award and thereafter resulting in further litigation and delay in enforcement. The management would always keep them at bay for absorption…Moreover, it is a tardy and time consuming process and years would roll by. Without wages they cannot keep fi ghting the litigation endlessly. The right and remedy would be a teasing illusion and would render otiose and practically compel the workmen to remain at the mercy of the principal employer. Considered from this pragmatic perspective, with due respect to the learned judges, the remedy carved out in Gujarat Elec- tricity Board case would be unsatisfactory.” The long and the short of the new procedure, which is laid down in the Gujarat Electicity case, is that basically all contract workers will be out of work the minute a notifi cation, under Section 10, is issued. And even then the chances of getting re-instatement and permanent employment, through the tribunal, are extremely slim. It would depend on whether the principal employer intends to employ permanent workers and if the contract workers are ”otherwise found suitable and possess the necessary technical qualifi cations...” Since the judgement, managements have been openly bragging that they will be the happiest when a notifi cation for abolition is issued. Because thereafter, they will not “intend” to employ government workers for the work, but will appoint casual or temporary workers for the work instead and will never “intend” to employ permanent workers. The consequences of the Constitutional Bench judgement are simply that those contract workers, who have already fi led applications under Section 10 of the Contract Labour Act for abolition, now regret it and will face the fi ght of their lives to hold onto their employment. Only in those cases,

|186 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR where a case of sham and bogus contract can be made out, will there be any strong chance of permanent employment. And no workers will fi le fresh cases under Section 10. Who will demand the abolition of their own employment? The legal path, open to contract workers today, is to allege a sham and bogus contract but that can only be done by raising a demand, under the Industrial Disputes Act, following the procedure outlined above and for which there is no possibility of obtaining a stay order before reaching the tribunal. (ii) 1976 Notification struck down Though the issue of the validity of the 1976 notifi cation of the central government had not been referred to at all, before the Constitutional Bench and it was accordingly not argued, the Consti- tutional Bench struck down the 1976 notifi cation altogether on the ground that, “a glance through the notifi cation” shows that it does not comply with the conditions laid down in Section 10 of the Contract Labour Act. In the Air India case the three-judge Bench actually called for the papers from the central government with regard to the investigation carried out by it under Section 10 before issuing the notifi cation. After going through the papers the Court held that the investigation was proper and therefore the notifi cation was valid. This notifi cation, which covered lakhs of workers throughout the country, been struck down. Apart from this, it seems that no omnibus notifi cations, covering more than one establishment, will be held valid. It is, of course, such omnibus notifi cations which are most effective in abolishing the contract labour system on a large-scale. Contract labour and globalisation The SAIL judgement has come at a time when, in the name of globalisation, the contract labour system is proliferating at a phenomenal pace and eating up permanent employment throughout the world. The contract labour, and casualisation of permanent work forces, has formed a central part of the structural adjustment programmes and agenda of the World Bank and IMF throughout the Third World. The same is true of the multinationals. “Flexibility” (in terms of designation, wages, working hours and of course “hire and fi re”) is the “in” word. The contract labour system lies at the very heart of such “fl exibilities.” In India, it is estimated (1999 fi gures) that around 65 percent of all employment is of a casual nature. The vast majority of contract workers in India come not only from the poorest sections of society, but also the lowest castes. A study in Andhra Pradesh, in 1995, showed that 40 percent of contract labour, in the state, belonged to Scheduled Castes, 45 percent to backward classes and 15 percent to Scheduled Tribes.1 However, with the present Government policies, the contract labour system is now proliferating into entirely new areas of employment – teachers, computer operators and journalists. It is even estimated that around 50 percent of working Americans now provide their services on a freelance basis. And, in a Third World country like India, the backbone, of competing in the global market, is cheap labour, with the emphasis on making it ever cheaper. The Second Labour Commission has recommended the amendment of Section 10 of the Contract Labour Act so that a contract labour system can only be abolished in “core sector” activities – which excludes such work as sweeping and cleaning, security, canteen, transport, gardening

1 Contract Labour – What it means and whence it came;’ by TPVM (2001)). KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |187 CHAPTER SIX

– which have the highest employment of contract workers. However, with the interpretation of the Supreme Court in the SAIL judgement of Section 10, the section has anyway already become largely irrelevant in all sectors, as no worker will ﬁ le a case, which will ensure the loss of his own employment, should he win.

|188 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE SECOND LABOUR COMMISSION REPORT NEVER A MORE ANTI-LABOUR POLICY

n 1969, the ﬁ rst National Commission on Labour, Chaired by Justice Gajendragadkar, made proposals on various issues − like law, dispute resolution, safety, wages, social security, Iunorganised labour and women − in a distinguished report which saw labour as contributing to, and partaking of, the wealth of society. In contrast, the report of the Second National Com- mission treats labour as the dregs of society. These recommendations have apparently been accepted by the government:

 It excludes, from the deﬁ nition of “workmen” and hence from the protection of labour law, a large section of workers designated as supervisors. This goes against the European trend to include, within labour, all categories of employees except senior management personnel.

 It takes away the right to strike by providing for the automatic reference of strike notices for adjudication, rendering the starting of the strike illegal. Should the strike start, the union will be de-registered.

 The counterpart of the strike – the lockout – suffers no such disability. For a lockout to be imposed, all that is needed is the approval of the board of directors. Considering that most disputes today are in respect of lockouts, not strikes, a blanket ban on lockouts is needed.

 It is anti-Dalit in its recommendation that caste-based organisations will not be permitted. A large number of Scheduled Caste associations will cease to exist.

 It attacks basic trade union rights, such as the secret ballot, for the purpose of recognition of trade unions. The feeble reason given is that the secret ballot “disturbs the atmosphere and creates rivalry.” The Commission favours the ”check – off” system which is a veriﬁ cation system vulnerable to manipulation. The secret ballot is used for elections to Parliament, the Assemblies, Panchayats, cooperative societies and company annual general meetings but not for workers!

 Trade union funds cannot be used for political purposes, says the Commission, as if ”political activity” is something contrary to the Constitution. The funds of corporations, on the other hand, can merrily be used for this purpose.

 The Commission recommends changes in the Industrial Disputes Act to enable employers to reduce the wages of workers unilaterally; now prohibited by the LIC vs Bahadur decision of the Supreme Court.

 It recommends that the present restrictions − on lay-offs, retrenchments and closures −

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |189 CHAPTER SIX

be removed giving employers a free hand to remove workers. This will lead to large-scale unemployment and untold misery.

 The Commission recommends taking labour out of the purview of the Judicial System altogether by constructing a parallel system of commissions manned by retired labour commissioners. There is a trend, in recent years, to take sections of poor and working people out of the Judicial System into a second-class alternative such as Lok Adalats and to reserve the High Courts and the Supreme Court for property disputes and for the afﬂ uent. Labour law is now perceived as not deserving the attention of the superior courts. Considering that labour commissioner ofﬁ ces, throughout the country, are perceived as cesspools of corruption, the integrity of the Commission is in grave doubt.

 Even though the Supreme Court once characterised contract labour as an “archaic and primitive system of capitalism,” the Commission approves of contract labour, for “non-core” activities such as canteens, cleaning and security. For the core areas the Commission fails to recommend the one-line amendment, needed in the Contract Labour Act, making regularisation of contract labour necessary in cases where the work is perennial. Thus contract labour will prevail even in core areas. This section of labour is paid below the minimum wage, has no security, is subject to hire and ﬁ re, is not usually unionised and does the most dangerous work. They are rarely paid provident fund, gratuity, accident compensation or even the minimum wage.

 The Commission recommends that welfare schemes − such as maternity beneﬁ t, workmen’s compensation and gratuity − be converted into “contributory schemes” where workers have to pay. Further, the provident fund amount, which presently lies with the provident fund commissioner, will be transferred to companies. Given the numerous instances of industrialists absconding with the employee’s dues, there is every possibility that the provident fund will be misappropriated. To make matters worse the Commission recommends the impounding of provident fund amounts, thereby dis-entitling workers from withdrawing from their own accounts. The provident fund, thus impounded, will probably be loaned to industrialists!

 The inspector’s regime is to be dismantled and replaced by ”self certiﬁ cation” in compliance with labour regulations. The punishment, for false reporting, is a ﬁ ne of Rs. 1000! The enforcement of labour standards will thus cease.

 The commission recommends the closure of ESI hospitals. In cases of accidents and occupational illnesses, workers will be paid certain amounts and then are to fend for themselves. Private hospitals will be thrilled!

 The commission recommends hire-and-ﬁ re with no safety net or social welfare system, by the introduction of a speciﬁ c provision enabling termination of service after a one month notice.

 The 1000-page report is an exercise in betrayal. The commission promises a grand package of new laws. No worker believes this.

 The majority of the members of the commission are members of, or had close links with, the RSS. These include Hasmukhbhai Dave, who was later replaced by Saji Narayanan, an RSS

|190 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LABOUR

leader from Kerala; Jitendra Vir Gupta, Northren Zone Sanchalak of RSS and better known as the Chairperson of the RSS committee which recommended the trifurcation of Jammu & Kashmir on communal lines; Sudharshan Sarin, leader of Laghu Udyog Bharati, an RSS organisation; and the chairperson, Ravindra Varma, known to be close to the RSS, which chose him to lead the satyagraha against Emergency after the arrest of Nanaji Deshmukh.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |191

SPECIAL ECONOMIC ZONES SEVEN CHAPTER

1. SEZs Spell Doom for Workers 2. Nandigram Courtesy: Internet

SEZs have been exempted from s.18 of the Minimum Wages Act, which means that employers, in SEZs, shall not have to maintain registers and records giving the particulars of the employees at work, the work performed by them, wages paid by them, receipts given by them, etc. This will decrease the actual justiciability of the Act.

|194 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SEZS SPELL DOOM FOR WORKERS

Special Economic Zone (SEZ) is “a specifi cally delineated duty free enclave and shall be deemed to be foreign territory for the purposes of trade operations and duties and tariffs.” A SEZs have inspired actual and intended amendments in labour law, generally with a view to exempt such zones from the application of the less fl exible labour laws in India. Apart from relaxed and simplifi ed labour law requirements, the ”developers” of SEZs also benefi t from non- existent environmental clearance requirements and exemptions from taxes, levies, duties, etc. In this write-up on labour law amendments, in the wake of the establishment of SEZs in various states or possibilities thereof, the states, that shall be talked about, are Andhra Pradesh, Karna- taka, Madhya Pradesh, Maharashtra, Uttar Pradesh and West Bengal. Industrial Disputes Act The most prolifi cally altered section is s.2 (n) of the Industrial Disputes Act, 1947, (ID Act), which defi nes “public utility service.” The signifi cance of including establishments in SEZs as public utility services is that, under s. 22 of the ID Act, a 14-day notice has to be given before the employees undertake a strike, or the employers a lock-out. The state government may ban the strike or lock-out. To consider a Gem and Jewellry Park a public utility service is ridiculous: this amended omnibus provision considers all industries situated within these zones, regardless of their actual public utility. It should be invalid to the extent that an industry, that is not a public utility service, cannot be treated as one. An amendment, proposed by Maharashtra, seeks to avoid the application of Chapter V-A to industries in SEZs. The implication, of such a move, will be that in an SEZ:  Even when a workman reports for work, and the employer fails to provide any work, no lay-off compensation shall be payable;  There will be no protection against retrenchment, in the form of notice and compensation;  When an undertaking, or its management, is transferred, no compensation shall be payable;  No compensation shall be payable, nor any notice given when the closure of an undertaking, with less than a hundred workers, takes place;  Employers will victimise trade union activists as the procedure for retrenchment, including the ”last come, fi rst go”’ principle shall not be applicable;

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |195 CHAPTER SEVEN

 There shall be no requirement that retrenched workers be given priority once the employer begins hiring again. A number of states have proposed that SEZs, or at least undertakings in SEZs with less than 300 workmen, be exempted from Chapter V-B of the ID Act. Under Chapter V-B, when the employer considers lay-off, retrenchment or closure, in a factory with more than a 100 workers, the permission of the state government is required. In the absence of such a requirement, it shall be the sole discretion of the employer whether to undertake lay-off, retrenchment or closure. A problematic amendment, that has already been made to the ID Act, is that employers, in the SEZs, no longer have to give workmen, likely to be affected by a change in conditions of service, any notice before making such a change. This means that employers will have the power to affect immediate, unilateral changes in the conditions of service and workmen shall be helpless. Previous to the amendment, if workmen had notice of any change in their conditions of service that would be to their detriment, they could institute legal proceedings and obtain a stay on detrimental changes. Contract labour The Contract Labour (Regulation and Abolition) Act, 1970 (CLA), is an Act that enables persons, working as contract labourers, to approach the contract labour board and the labour court for permanency, or for registration, of their conditions of service. Uttar Pradesh has exempted SEZs from the operation of the CLA, which means that contract workers in an SEZ in NOIDA, for example, will have no status in labour law. Other states seek to limit the application of CLA by declaring certain activities − such as sanitation and running of canteens − as non-core activities, while providing that the prohibition of contract labour is applicable to “core activities” alone. States have also sought to limit the application of CLA by tinkering with s.31 of the Act, to allow for the state government to declare SEZs as exempt from CLA. Trade unions Section 22 of the Trade Unions Act, 1947 has been amended by two states and is proposed to be amended by another two, so as to exclude outsiders from becoming offi ce-bearers of trade unions. This exclusion of outsiders is in breach of the ILO Convention, which does not permit governmental or employer interference with the right of workers to form a union in the manner they deem fi t, and appoint offi ce-bearers of their choice. It is ironic that, while corporations operating in SEZs, may have directors from outside the SEZs; trade unions, in SEZs, cannot have offi ce- bearers who are trade union activists or persons working outside the SEZ. The implication of this amendment is that the trade union movement will become further fragmented and, as as a rule, general trade unions will not be possible. It will lead to establishment-wise unions. Weekly hours Amendments to various provisions of the Factories Act, 1948, have been affected and proposed. The essence of these amendments is that: There will be no restriction on the number of hours that a worker is required to put in on an |196 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SPECIAL ECONOMIC ZONES

SEZ on a daily or weekly basis. A worker will thus not be able to challenge any amount of overwork. In keeping with these amendments, s.13 of the Minimum Wages Act, 1948, has also been amended so that the appropriate government no longer has the power to fi x the hours in a normal workday. There will be no guaranteed weekly holiday. There could thus be seven working days a week. There will be no restrictions on the employment of women. It is an amendment that has been proposed by Madhya Pradesh, Maharashtra and Uttar Pradesh. This is the only amendment that is not problematic in the least, as long as women have transportation to and from work during night time. Minimum Wages Act SEZs have been exempted from s.18 of the Minimum Wages Act, which means that employers, in SEZs, shall not have to maintain registers and records giving the particulars of the employees at work, the work performed by them, wages paid by them, receipts given by them, etc. This will decrease the actual justiciability of the Act, as the allegation − of wages below the minimum basic wage − cannot be proved in the absence of records. Andhra Pradesh has made this amendment. It has also exempted SEZs from s.11. This provides for wages being paid wholly or partly in kind and authorises the supply of commodities at conces- sional rates. Madhya Pradesh has made the most shocking proposal of all: It proposes to exempt SEZs from the operation of the Act, under s.26. Such a proposed amendment should not be passed under any circumstance, for it opens up the possibility of gross human rights abuse. Provident fund Maharshtra and Madhya Pradesh have proposed that the principal employer be exempt under the Employees Provident Fund and Miscellaneous Provisions Act. By these means, the principal employer will not have to give permanent and regular workmen a provident fund. Employee insurance Maharashtra and Madhya Pradesh have also proposed that principal employers, in SEZs, be exempt from any liability under Employees State Insurance Act, 1948, towards employees employed indirectly. This will mean that contract workers shall not be able to avail of the Act in cases of accident, illness or occupationally induced diseases. Employment exchange Madhya Pradesh has proposed the amendment of the Employment Exchanges (Compulsory Noti- fi cation of Vacancies) Act, 1959 so as to exempt SEZs. Under the Act, unemployed persons are to be called for interviews. The Act does not compel the employer to take on a person who is unsuit- able for employment. It is strange that such a proposal has been made though the Act causes no inconvenience to the employer whatsoever and should not pose a “problem” even in the liberal, fl exible labour environment of an SEZ. This proposal has been made despite the millions who seek and fi nd employment through employment exchanges. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |197 CHAPTER SEVEN

Apprentices Madhya Pradesh has also made a proposal to exempt SEZs from the application of the Ap- prentices Act, 1991. The Act makes it mandatory for the employer to provide regular training for apprentices. The Act creates a distinction between trainees and regular workmen. In the absence of the Act, the employer may keep regular workmen in the guise of trainees/apprentices and pay them only a pittance. Or the employer may keep trainees without really providing them with any formal training. Development commissioner Previously, the labour commissioner, and various boards, had the power under various labour law Statutes. There has been an actual and proposed delegation of these powers to the development commissioner. The development commissioner is expected to be an agent of the corporations. It is he who grants them the permission to operate and all the benefi ts and exemptions under the various Statutes. One cannot expect such an offi cer to play an impartial role while adjudicating disputes between employers and workmen. Yet in all the states studied, the powers of the labour commissioner have been delegated to the development commissioner. In some SEZs, he has also been appointed as the conciliation offi cer. Conclusion The proposed, and actual, amendments studied are very disturbing. They have huge potential to facilitate human rights abuse, especially with respect to contract labour. The argument − that may be made out in a favour of it being a “free market” and workers’ capacity to contract − is fallacious because there is no level playing fi eld upon which the free market model is based. Thus, the changes in the law discussed shall prove, by and large, to be to the detriment of workers in SEZs; are likely to weaken the trade union movement; will further jeopardise the position of contract workers; and will allow “developers” free reign in exploiting workmen.

– With input from Pragya Freya Mehrotra Combat Law March-April 2007

|198 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NANDIGRAM

he move − to take the land of the people of Nandigram − probably began a long time ago with negotiations between the chief minister and the Salim Group in secrecy. It appears that Tonly a small group of very senior persons, within the CPM party and the administration, knew of the details of this negotiation. In May, 2006, the land reforms minister, Abdul Rassak Mollah, said that, with acquisition of land, people will get thousands of jobs and so much money for compensation that the people would not know what to do with the money. But apart from this grand deception there was not even a hint that the people would be forced to part with their lands. So when the Haldia Development Authority issued a notice, indicating the land would be acquired for the Salim Group, there was justifi ably surprise, anger and indignation all round. This was exacerbated by the fact that on December 29, 2006, Lakhan Seth, the chairperson of the authority and a CPM Member of Parliament, aggressively told the people of Nandigram, in a meeting, that lands would be forcibly taken. “It is my challenge. I will take it.” According to the people attending the meeting, he beat his chest to emphasise his point. “We will build industry with our blood; if necessary with CPM blood.” Another senior CPM functionary, Binoy Konar, said that the CPM would surround Nandigram from four sides and fi ght this out and bring in cadres from other areas and make life hell for the people. “We have bullets and arms to subdue these people.” Biman Bose said that Nandigram was a conspiracy by Medha to create violence. This statement was later withdrawn. These provocative statements caused panic and confusion. People wanted to know how much land was to be taken, but there was no information to be had at all. On the Nandigram, the Pradhan, a prominent local CPM leader, told the people who came to see her at the Gram Pan- chayat offi ce on January 3, 2007 that she did not know anything of the acquisition. This probably heightened apprehension that there was a conspiracy afoot to take the entire land of Nandigram. Shouting slogans, they were returning home when the police followed them and, after throwing stones at them, engaged in a furious and unprovoked lathicharge. The police, of course, have their own version of what happened. We were told the sequence of events by Ansar Hussain, Shaha Alam Shah, Mir Kilafat Ali and other villagers from Bhutarmore village, who gave their account in a spontaneous and unrehearsed fashion and we have no reason to believe that they have been tutored to tell a false story. In response to the lathicharge, the people surged forward and the police began to run. Two policemen apparently fell and were mildly hurt. They were rescued by the people themselves, made to change into civilian clothes in view of the anger against the police and sent home. Their lives were protected by the people. A rifl e, that lay discarded in the confusion, was returned to the police. Recounting the incident, the people said that most of them were CPM members and activists and had been so for a long time. “Thirty years in the CPM

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |199 CHAPTER SEVEN and yet I am not able to get any information about my land being acquired” they lamented. “We will never surrender our lands. We were born here. Where will I get my ponds, my snails and my burial ground?” All of them complained bitterly “the police had become cruel criminal elements.” After this, in utter panic and fearing the reprisal from the CPM and the police, the people dug deep trenches in the roads, in hundreds of places, broke the bridges so that jeeps could not pass over them and placed trees, bricks, boulders, cement poles and other barricades everywhere. On the January 4, 2007, according to the people’s account, the CPM brought cadres from outside and set up four camps in the area. The people have had earlier experiences of such camps and began guarding their areas. On the January 6, 2007, Benoy Kunal and Lakhan Seth once again made provocative statements to the press. “If they throw stones, will we throw rasogullas? We will make their lives hell” they said. On the January 7, 2007, these outsiders began fi ring on the people. Bharat Mandal was the fi rst to die of a bullet injury. The people retreated. The outsiders then gathered in the house of Shankar Sawant, the local CPM leader and zamindar. Firing began on the people from his house. Vishwajeet and Salim, residents of the village, were shot dead. Fourteen persons were injured. In fury, a large gathering of people stormed the house of Shankar Sawant. He was killed and his house destroyed. It is quite clear, from the account given by the people, that he was a terror in the area. The CPM account is that he was a loyal leader of the party and an innocent victim. Seeing the mass mobilisation against the CPM leadership, by the CPM rank and fi le and every person from the village, the CPM and the police withdrew. The night vigils continue and the people are constantly on guard. From the CPM leadership side, the provocative statements continue. Even as we were visiting the areas between the 26-28 January 2007, the newspapers reported threatening statements. All the people interviewed, when asked what they thought of the promise of employment if the SEZ were to come up, felt that the promise of jobs was illusory. “Haldia has come up” they said. “How many of us have been given jobs?” We were told by Nishikanto Mandal, the convener of the Nandigram Committee, that for the Jellingham project the people had surrendered 650 acres. Although the government said that only 450 acres were acquired, the actual acquisition was of 2,500 acres. Much of this land remains vacant. Till today, according to them, 20 percent of the compensation remains to be paid. Sixteen families, who lost their homestead, have not been rehabilitated. All of them were to get jobs but only one was provided employment and he too ultimately was forced to accept VRS. One hundred forty two families lost their lands but only six got employment. Out of the 132 permanent jobs created, only seven local people were employed. Most of them were forced out in the VRS. In 1993, this project was closed. “Why not use this land for the SEZ instead of acquiring farmland,” the people asked. Sixty thousand factories are lying closed throughout West Bengal. The government should use this land for its projects, felt the convener. We were told that in the Gram Panchayat board, there were seven CPM members and four TMC (Trinamool Congress) members. Five of the board members, joined the movement. It appears, from the account of the people, that the Nandigram incident is one of class struggle within the

|200 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SPECIAL ECONOMIC ZONES

CPM where a small coterie of senior leaders are attempting to push through land acquisition proposals with the intention of handing over these lands to industrialists at throw away prices. They are being opposed by the rank and fi le, most of whom are small farmers, of the CPM in Nandigram. Nandigarm is therefore simultaneously a failure and a success or, put differently, a betrayal of not only Marxist values but also democratic principles by the leadership and a courageous fi ght back by the rank and fi le of the party. We went over to Bangabera village in Kejuri Block and saw the place where the outsiders had as- sembled with arms to attack Nandigram. Standing in the market place, we received, once again, a spontaneous and unrehearsed account of what had happened. From where we were standing, we could see the launches carrying people and their goods. We were told that the outsiders came on these launches and opened fi re from them on 7th of January. We were also told that the CPM cadres, who set up the camp, had said that they had come there to engage in a war (yudh). Even as late as 25 January, 18 motorcycles, with armed outsiders, came to Balibasti, Sahebnagar to force the people to withdraw from the movement opposing the land acquisition. One villager told us: “The party which said those with the plough would have land is now saying that the ploughs should be burnt [sic].” We were then given a rough picture of the administration’s plan for SEZs in the state of West Bengal. It reads like the fantasies of an ageing male! In Haldia, 14,136 acres were taken but only 7,000 acres were used and the rest remained unused. Out of the 7,000 acres, used for setting up factories, much of the land is available because many of the factories have been closed. The land was acquired in Haldia in 1964 at Rs. 2,600 per acre and is being sold today for Rs. 1.5 crores per acre. In Kolaghat, for a thermal power station, 1,700 acres were acquired but only 700 acres were used even after seven years. In Singur, 997 acres are being taken, though only 300 acres were required for the factory. Rest is for real estate development. In Kulpi, 3,200 acres are being acquired to be handed over to the Sultan of Dubai for the construction of a port. In North, 24-Parganas 5,000 acres are proposed to be handed over to Salim. 11,000 acres are being acquired for a by-pass road to Bangladesh border. Five thousand fi ve hundred sixty acres are being acquired for the Dhankuni township. Thirty fi ve thousand acres are proposed to be acquired for nuclear power station near a densely populated town in Haripur. Eight hundred fi fty acres are to be taken at Kharagpur for the Tata Telecom factory. Five thousand fi ve hundred acres are to be acquired for the Jindal steel plant at Salboni. One thousand acres will be acquired for the Katwa thermal power station. One thousand three hundred acres are to be acquired for the Reliance plant at Panskure. The Videocon SEZ, at Phulbadi, will require 5,000 acres according to Reliance. Three thousand fi ve hundred acres are being taken at Purulia for a cement factory. In Kharagpur, Century Textiles has been given a large area of land, which has been fenced off for years but not used, and compensation has not been paid. The large newspapers have been given impressive plots of land near the by-pass which probably accounts for why news of the struggles of the people is hardly reported any more. On the contrary, negative and misleading information − about the weakness of the people’s movement − regularly fi gures in the West Bengal media. In Nandigram, it is said that 96,000 people will be affected overall. In all, three lakh acres are to be acquired from the poor in West Bengal for a pittance and handed over to the industrialists for a variety of projects, most of which have nothing to do with the public interest. All these projects

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |201 CHAPTER SEVEN are being negotiated at the highest possible level by a core group surrounding the chief minister. This core group includes Benoy Konar, Lakhan Seth and others. The district magistrates and the staff of the revenue department and all other offi cials, who would normally be involved in land acquisition matters, are being kept deliberately out of the loop. Muslims appear to be particularly hard hit by the Nandigram acquisition. Twenty fi ve percent of the West Bengal population is that of Muslims. In Nandigram Block, we were told that 40 percent of the population includes Muslims. In Kejuri 35, percent are Muslims. We were told that 60 percent of those affected by the acquisition are Muslims. This is an angle worth investigating. This could also explain why the Jamat-e-Ulema Hind has become very active in opposing the land acquisition. The moment the Jamat joined the movement, the chief minister accused the Jamat of being communal. He withdrew that slur the next day. He appears to be in the habit of making reckless allegations and then withdrawing them through the media. The Jamat, though a deeply religious body, appears to be secular and there seem to be no record of the Jamat being involved in communal activities. The statement, of the chief minister, is therefore, reprehensible because it seeks to communalise what is essentially a land issue. A few more words on this point are necessary at this stage. The CPM, at the national level, plays a progressive role on issues relating to the poor and on labour and particularly on the issue of communalism. At the national level, it has deep and consistent secular credentials. Though communal feelings are not dormant in the state of West Bengal, it must be said to the CPM’s credit that the state has not allowed communal activities to fl ourish. In this context, it is particularly worrying to see the chief minister attack a secular Muslim organisation, with historic roots going back to the freedom struggle and Congress movement, as being communal merely because the organisation has stridently attacked state policies relating to the acquisition of land. We met a CPI Member of Parliament. Although he was kind enough to give us time and expressed his personal view, against the acquisition of land at Nandigram, we could not help noticing the weak response of the CPI party to the acquisition process. The state apparently enacted the West Bengal SEZ Act in 2003 but the Member of Parliament did not know whether the Act had been passed and confi rmed that the CPI did not object when it was passed in the Assembly. “We did not give serious thought to it,” he said. He also made an amazing statement to the effect that the CPI did not protest in Singur because the land owners had a right to give their land!” When asked a pointed a question, as to the stand of the CPI today, he said that the CPI has not yet said that the land should not be taken. “We are discussing,” six SEZ projects are sanctioned and 22 are awaiting sanction. He came out in strong support for the handing over of the land for the Jindal steel Plant. He said that the CPI had not yet decided on the Haripur nuclear Plant and the Kulpi Port. He confi rmed that one lakh acres were to be taken from the farmers all over West Bengal. All in all it appears that, apart from token protests, the CPI is not in a position to take a clear stand on principles and join the people’s movement in West Bengal. If this ambivalence continues, the CPI runs the risk of being alienated from the people’s struggle. As it is, at least in Nandigram, the CPI leadership fi nds it diffi cult to hold meetings inside the area. But the impression gathered, from the people, is that the CPI could possibly recover some ground should they now take a clear stand on the acquisition issue.

|202 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SPECIAL ECONOMIC ZONES

We attended a meeting organised by the Jamat-e-Ulema Hind, another organisation, on January 27, 2007. It was fairly widely attended and there was a substantial Muslim presence. It appears that the Jamat has a network throughout the state and may be a signiﬁ cant force in the agitation against the SEZs, provided it stays the course. Speakers, in the meeting, pointed out that though Muslims were 28 percent of the population, their representation, in public employment in the state, was only two percent which was worse than in Gujarat where the state was openly communal. Siddikula Choudhary, when interviewed, complained that the chief minister had said, in 2002, that Madrasas, in Siliguri, were places of terrorism. He denied that statement the very next day. “We disbelieve the CPM because of the gap between what they say and what they do. We will oppose all SEZs.”

–February 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |203

CHILD RIGHTS EIGHT CHAPTER

1. India Shining? Child Rights & the Law 2. Juvenile Injustice: Bill Against Child Marriage Full of Loopholes 3. Children: Emaciated and Abused Courtesy: Internet

Child marriage is a euphemism for child abuse. The little girl is sent to her husband’s home immediately after marriage where she becomes a sexual slave. The girl suffers profound psychological disorders.

|206 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation INDIA SHINING? CHILD RIGHTS & THE LAW

owhere is the chasm between the letter of the law and its implementation so clear than in the enforcement of the rights of the child. Despite the decision of the Supreme Court in NMC Mehta’s case holding that the State ought to intervene to enforce the provisions of the Child Labour Act and remove children from hazardous employment, have them sent to schools and pay compensation for breaches of the Act, this decision is by-and-large ignored. Despite the decision of the Supreme Court in Vishal Jeet’s case and Gaurav Jain’s case, traffi cking of minor girls continues unabated. Although there are thirteen decisions of the Supreme Court in respect of child sexual abuse, a perusal of the decisions will show that the Judiciary has been unable to get to the heart of the matter. The practice is widespread and if one were to look inside the family, one would perhaps fi nd a shockingly high incidence of child sexual abuse by family members. We have no law on child sexual abuse. Cases are done relying on a section here and a section there. The child suffers such harassment and indignity in the judicial process that it is far better for the parents to withdraw the case. Despite the Immoral Traffi cking Prevention Act, traffi cking of minors has increased while pimps and brothel owners are rarely punished. In Unikrishnan’s case, the Supreme Court held that free and compulsory education is to be read into Article 21 of the Constitution of India. However, instead of moving in that direction, the privatisation of education is accelerating and children are going in the opposite direction from the schools to the streets and the factories. Disabled children are even worse off. To add to this misery, the Union and state budgets in respect of children are decreasing year after year. Existing budgets are never fully spent and money is returned to the treasury. The central government has enacted the Juvenile Justice Act, 2000. Yet the statutory bodies and authorities such as the child welfare committees and the juvenile justice boards, required to be set up in every state often do not exist. Putting a juvenile to death is prohibited by law, yet juveniles have been put to death by courts by placing the onus of proving the age of the accused on the accused himself. Our population policy does not speak of the two child norm, yet when the panchayats enacted laws which disqualifi ed persons having more than two children from standing for elections and the matter went to the Supreme Court by way of appeal in Javed’s case, the Supreme Court incorporated the two-child norm in the population policy itself with the encouragement of the central government. Thus the two-child norm has become now a part of our population policy. It was

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |207 CHAPTER EIGHT not pointed out to the Supreme Court that such an incorporation would spur sex selection and determination and female foeticide, and that the disincentives would mainly impact poor women. There was perhaps more interest in curbing the abhorrent practice of child marriages during the pre-Independence period when the Child Marriage Restraint Act, 1928 was enacted. Today, child marriages are celebrated with collectors and policemen and ministers blessing the ‘couple.’ Child marriages lead the girl child directly into bondage and sexual slavery. Despite the direction given by the Supreme Court in Lakshmikant Pandey’s case aimed at curbing the menace of sending indian babies abroad for monetary consideration, trafﬁ cking in little babies is now on the increase. We were involved in petitions where little babies were taken from Lambada Tribals in Andhra Pradesh and sold to foreign couples for huge amounts of money. We found destitute Tribal women cheated of their babies with the lure of sacks of grain. The Convention on the Rights of the Child guarantees every child the right to form associations. Yet, when a petition was taken to the Supreme Court asking for the registration under the Trade Unions Act of the Bal Mazdoor Union, an association of children working in the markets in Delhi who sought to organise to increase their wage rate per trip carrying groceries, they were told by the judge that the unions were now trying to mislead the children! In PUCL vs UOI the Supreme Court intervened actively on the issue of the Right to Food and directed Mid-day Meals be provided to all primary school children. Yet, if one were to go to Uttar Pradesh and Bihar and many of the Northren states, one would ﬁ nd that this order is being disobeyed with impunity. Half of the nations across the globe have children malnourished.

–Editorial, Combat Law April-May 2004

|208 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation JUVENILE INJUSTICE: BILL AGAINST CHILD MARRIAGE FULL OF LOOPHOLES

he UPA government has drawn up The Prevention of Child Marriage Bill, 2004, which repeals The Child Marriage Restraint Act, 1929. Unfortunately, the Bill has too many loopholes for Tone’s liking. The 1929 Act was a queer piece of legislation rendering all child marriages illegal but not void. A child marriage remained valid in the eyes of the law. As a result child marriages continue unabated. Today, thousands of child marriages are solemnised during the Hindu festivals like Akshaya Tritiya, Akha Teej, Ram Navami, Basant Panchami and Karma Jayanti festivals. Tribals and minorities also have similar customs. Instead of plugging the loophole in the law, Section 3, of the Bill, lays down that a child marriage will be rendered void only if the children fi le legal proceedings for this purpose. However, given the social pressure surrounding such marriages, it is unlikely that any case will be fi led. The 1929 Act was a non-starter. A UNICEF study, published in 2001, found that the number of prosecutions, under the Act, did not exceed 89 in any year. How many of these ended in convictions and what was the sentence imposed, is not known. The fact is that thousands of child marriages are “celebrated” openly with ministers, senior policemen, district magistrates and collectors attending to “bless” the couples. A provision for the punishment of offi cials, when child marriages are openly solemnised in their areas, is conspicuously absent in the Bill. Lack of accountability has caused a boom in child marriages. The National Family Health Survey of 1998-99 found 65 percent of girls are married by the time they are 18. A 1993 survey of women in Rajasthan found 17 percent of all girls married before they were 10; three percent were married before they were fi ve years old! Child marriages are wrongly understood as merely being formal. It is thought that the consumma- tion takes place much later after puberty. In reality this tradition is rarely observed. The little girl is sent to her husband’s home almost immediately. There she becomes not only a slave but also a sexual plaything for the males of the family. According to a survey, conducted by the social welfare department of Bihar in 2002, 57 percent of all child brides become mothers within the fi rst three years of their marriage. They suffer profound psychological disorders. Pregnancy-related deaths are the leading cause of mortality for 15 to 19-year-old girls in India. In contrast, Sri Lanka has raised the age of marriage signifi cantly to 25 years, partly through legislative reforms requiring that all marriages be registered. Sri Lankan courts have also taken a different approach, ruling that marriages, arranged by parents on behalf of their children, are

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |209 CHAPTER EIGHT invalid. Legislative changes, supported by social policies on health and education, have created an environment in which the practice of early marriage is in steep decline. While recognising that child marriages can continue to remain valid, though illegal, the Union Government is in breach of Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which lays down that “the marriage of a child shall have no legal effect.” India is also in breach of Article 16 of the Universal Declaration of Human Rights which requires that “marriages shall be entered into only with the free and full consent of the intending parties.” The Bill is silent on registration of marriages. The national consultation of NGOs recommended that all adult marriages be registered and certifi cates given, and all child marriages be recorded without the issuing of certifi cates. No doubt, registration has its own problems. But surely a national debate was called for before such a half-baked Bill was drafted. No notice has been taken of the state legislation in force. Karnataka has a Marriages (Registra- tion and Miscellaneous Provisions) Act, 1976, making registration of all marriages compulsory. The procedure is so simple that registration can be sought by post. Maharashtra has enacted the Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998, making gram sevaks the registrar. Rajasthan has in the pipeline a Rajasthan Compulsory Registration of Marriages Bill, 2002. The Tripura Recording of Marriage Bill, 2003, was passed in the legislative assembly and is awaiting the assent of the governor. Under the laws of marriage, in Goa, a civil registration is mandatory and only registered marriages are considered valid. Child marriages are refused registration. Should a new law insist that all illegal marriages would also be invalid, it would be necessary, by Statute, to introduce protection, particularly for the child bride, so that her right to maintenance and her right to a household are not undermined on the declaration of her marriage as being invalid. No doubt the Bill contains certain welcome provisions. It provides for the intervention of courts to prevent child marriages through stay orders. It also provides for the appointment of government offi cials as child marriage prevention offi cers. A carrot and stick approach is required – carrot for the poor who are often forced by poverty into marrying their children at a very tender age often to reduce the burden of dowry; and stick for government offi cials who disobey the mandate of the law. Poor communities, traditionally engaging in child marriages, ought to be given incentives to avoid this practice. The Bill fails on both counts.

–The Times of India May 6, 2005

|210 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CHILDREN: EMACIATED AND ABUSED

he Supreme Court of India and the High Courts of the states have made enormous and innovative interventions using Article 21 of the Constitution of India – the Right to Life to Tconsolidate and expand the human rights of children. Notwithstanding the court’s interventions, children in India continue to live and work in the most abysmal conditions and all the State pronouncements regarding affi rmative programmes for children remain on paper as sanctimoni- ous intent. Over 50 percent of Indian children are malnourished according to the National Family Health Surveys. A sizeable proportion of these are severely malnourished with stunted growth and shrunken brains – a whole generation of Indians growing up disabled! The Indian government has told the UN time and again that it proposes to progressively abolish child labour and to transfer children gradually from the factories and the fi elds to schools. Nevertheless despite an eight percent growth in GDP, the movement is in the opposite direction with children increasingly dropping out of schools to become child labour. In Bihar, 60 percent of Scheduled Caste and Scheduled Tribe children leave school by the eight standard. The government hides the statistics regarding the growth in child labour for the simple reason that it will show that the movement around the Millennium Development Goals (MDGs) have turned out to be an utter failure. The newspapers have been full of reports of the juveniles escaping from their institutions. Even a cursory look inside will show that these places are worse than police lockups. Hygiene is missing, food is deplorable, scope for rehabilitation does not exist and the administration behaves like sadistic policemen sexually abusing the children and beating them at will. No wonder that we have in Delhi at least 50,000 children on the streets determined not to go to the State institutions. A study of the government budget will explain why conditions inside are so awful. Generally, the total amount available to be expended per capita per day comes to Rs. 17 and that includes not only food but healthcare, recreation, education and a host of other items. None of the pious programmes announced so proudly by the central government were implemented during the last decade and it took the fi ling of a series of petitions in the High Courts and the Supreme Court to correct the situation somewhat. For example, the Juvenile Justice Act, 2000 as amended in 2006, requires the establishment of a juvenile justice board and a child welfare committee in every one of the 600 plus districts of the country. When a case was fi led in the Supreme Court fi ve years ago to enforce these statutory provisions, there were hardly 50 juvenile justice boards and child welfare committees in the country. By the Supreme Court’s energetic intervention, these institutions have now been established all across the country. It took the death by fi re of 50 children in a school in Tamil Nadu for the government to wake up to

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |211 CHAPTER EIGHT the reality of schools as fi re hazards. Then the Supreme Court delivered judgement in the Avinash Mehrotra’s case directing all state governments and Union Territories to restructure the buildings and to obey regulatory fi re precautions. One year later, the situation was about the same with schools and colleges making formal compliances by the buying of fi re extinguishers! The privatisation of education energetically pushed by the Supreme Court itself in TMA Pai’s case was then extended to elementary education by the enactment of the Right to Education Act. The government abdicated its constitutional responsibility to establish neighbourhood schools of good quality, the private sector received increased government funding at a time when government schools were starved of resources, these elitist private schools were then expected to educate children coming from slums, and overall the state introduced a two tier system with top class education for the rich and third rate education for the poor. Traffi cking in little children and juveniles carried on unabated with the National Human Rights Commission severely criticising the central and state governments for not doing anything to prosecute the brothel keepers, pimps and traffi ckers. Instead, the police, throughout the country, treated the victims of traffi cking as criminals and arrested them in large numbers. The provisions of the Prevention of Immoral Traffi cking Act remained almost entirely unimplemented. Major cities of India became the hubs of intra national and international traffi cking in children with policemen providing traffi ckers and brothel keepers with protection and politicians, businessmen and people in power providing the traffi ckers with political muscle and fi nancial clout. Though many judgements of the Supreme Court were delivered admonishing the State for keeping juveniles in prisons, policemen routinely put the age of the juvenile offender as 18 by guess work and then kept them in police lockups and jails. Judges before whom accused persons are to be produced also paid little attention to the apparent juvenility of the offender and without enquiry sent them off to prison. Sexual abuse continued unabated in this land of Gandhi and non-violence where Eastern spiritualism is supposed to prevail. Child abuse in the homes by relatives and friends is not even acknowledged though widespread and the victim child would invariably be scolded for daring to suggest abuse. Sexual abuse of juveniles in institutions meant to protect and rehabilitate them has been the topic of a fi lm made by the Human Rights Law Network. Though the Supreme Court has laid down special procedures in cases relating to sexual abuse of children, very few cases are taken up or reach the Court. By Statutes, the central government established national and state commissions for the implementation of child rights but, once again, the drafting of the Statute was so casual that the commissions had all bark and no bite. Moreover, the functioning of the commissions were undercut by the appointment of the government stooges many of whom had no history of any work done in the area of child rights. A case is currently pending in the Delhi High Court where it is alleged that the government has appointed a banker who was a superior of the husband of the minister responsible for appointments and that though he is, under Statute, expected to be a person reputed in the fi eld, has no experience at all and has worked all his life as a banker. Lack of transparency, political interference and nepotism undermine the integrity of the appointment process and sometimes brings into disrepute these institutions.

|212 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CHILD RIGHTS

The one ray of light in this otherwise gloomy situation is the series of decisions of the Supreme Court following Hari Ram’s case where the Supreme Court held that the claim of juvenility can be raised at any time in any court, that the Act has retrospective effect and that juvenility is to be determined strictly in accordance with the Rules and not by existing practices. As a result, many serious cases of juvenile incarcerations in prisons have been successfully contested and juveniles released. Children are the soul and future of this country. Looking at their emaciated and abused bodies one can only reﬂ ect sadly on the moral and spiritual decay in this country’s leadership. Perhaps, one day they will rise and revolt against a system that punished them only because they had no voice and no political representation. When that day of anger comes, we will have only ourselves to blame.

–Supreme Court on Children, Volume II August 2011

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |213

DALITS NINE CHAPTER

1. Barriers Impossible to Overcome 2. Misused? Or Not Used At All? Photo: Hilaans Nautiyal

After over decades of In- dependence, casteism is more entrenched and widespread today than it was at Independence. The modern Indian civilisation is, in this regard, one of the most barbaric, backward and uncultured societies that exists in the 21st century.

|216 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation BARRIERS IMPOSSIBLE TO OVERCOME

fter over fi ve decades of Independence, casteism is more entrenched today than it was at Independence. We have seen cases where the upper castes have thrown excreta into the Awells of the Scheduled Castes, with neither the police nor the Judiciary caring to intervene. Temples, being constructed by the Scheduled Castes, have been demolished on the pretext that the dust from the construction was “polluting” the areas where the upper castes lived. Terrifying instances have been recounted to us where Dalits have been brutally beaten and have had their neighbourhoods razed to the ground only because they dared to bathe in the common village pool or draw water from the well of the upper castes at times of drought. Filthy abuse is common. Forcing Dalits to vote against their will, for an upper caste candidate, is common. Recently, in Punjab, Dalits were forced to drink urine from a shoe for not showing “proper deference” to the upper castes. Instances of stripping and parading Dalit women are regularly reported. Cutting trees, owned by the Dalits, or stealing their cattle is routine. In Uttar Pradesh and Punjab, a large number of encounter deaths, on closer scrutiny, turn out to be nothing other than the murder of Dalits in land dispute cases. Even abject hunger and malnutrition do not diminish the crippling power of the caste. After the Supreme Court made it mandatory for the Mid-day Meal to be served in every primary school, the upper castes were most unhappy that their children would have to sit and eat together with the Scheduled Castes and were even more offended when the cooks and helpers, appointed under the orders of the Supreme Court, were Dalits. A number of anti-discrimination Statutes and positive-benefi t provisions exist in Indian law for the protection and benefi t of the Dalits, Tribals and other backward classes of society, but the implementation and enforcement of these laws is poor. Dalit lawyers and activists face social, linguistic and systemic barriers that become virtually impossible to overcome in the face of an often hostile Judiciary and civil administration. The entire system is designed to exclude and ostracise the Dalits. The primary piece of legislation, designed to provide a measure of protection to the Dalits and to enforce their rights, is the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Act was passed by Parliament when it became clear that existing laws had done nothing to alleviate the suffering of the Dalits by upper castes and the state apparatus even 40 years after Independence. The Prevention of Atrocities Act is a marvellous piece of legislation, but it is seriously underuti- lised, despite all the talk among upper-caste lawyers and judges. In fact, as we have found and documented over the last few years, the Act is hardly being used.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |217 CHAPTER NINE

The Dalits, who try to register a fi rst information report (FIR) about an offence, are faced with insurmountable obstacles. The police are arrogant and offensive. A majority of the criminal cases do not get registered at all. When the complaints are written by the police, these materially depart from the story orally communicated. The names of the accused are often missing. The description of the atrocity is diluted. The actual words of abuse are usually omitted. Finally, the police will threaten the victim with a counter case. On the fi ling of a chargesheet, bail is almost always granted. Immediately on their release, the accused begin to threaten the complainants and force them to withdraw their complaints or to turn hostile in court. If a Dalit persists with a criminal case, a social and economic boycott begins. The services of the Dalit labourers, connected with the complainant, are terminated and they cannot fi nd employment anywhere. Shops will not sell them goods. Ultimately, they are forced to leave the village or face terrible physical reprisal. Then come the prosecutors to mess up the litigation further. Drawn mainly from the upper castes, they immediately identify with the accused and begin to sabotage the criminal trial. They do not summon the relevant witnesses. They advise witnesses to make statements that will weaken the prosecution case. They do not produce relevant forensic evidence available to them. Finally they argue the case with such lack of conviction that the judge concludes that the case lacks merit. Truly the entire Judicial System, where Dalits are so under-represented, operates unequally against the victims of these most heinous crimes. As a result, the Prevention of Atrocities Act remains unimplemented. Judges, lawyers, prosecutors and policemen are not much interested in the implementation of the Statute. Studies, done by People’s Watch in Tamil Nadu and by Sakshi in Andhra Pradesh, show that the rate of conviction is less than one percent. A social audit, by the government, is sorely needed, as are reservations for the Dalits in the Judiciary. In fact, the Dalit lawyers, throughout the country, have repeatedly made the demand for reservation in the Judiciary, but this has been unanimously and uniformly rejected. It is no wonder then that this section of society, oppressed a hundred times over with no sign of any redressal possible within the democratic framework, should in large numbers join the ranks of the Naxalites and pick up arms against the state. Particularly in the Northren belt, fl eeing brutal social and economic oppression, they join the militants by the thousands. Treated by society as less than humans, they fi nd a new sense of dignity and purpose in the ranks of the dispossessed. Violence can never be justifi ed. But when one studies the miserable lives of the Scheduled Castes in our country, and their struggle for a humane existence, one cannot help but sympathise with the choices that they are forced to make. And we have only ourselves to blame. It is our hope that the Dalits will not despair and will work to make the legal system more responsive to their needs. Towards this end, this book is an attempt to fulfi l a widely-felt need for a single published source that brings together the legal material relevant to the civil and human rights of the Dalits. Although the text of most national legislations, court decisions containing

|218 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation DALITS case laws and International Covenants and Treaties are available in law libraries and via online sources, the Dalit rights activists and lawyers, working on Dalit issues, rarely have access to law libraries or to online resources. We hope to translate this book into multiple languages and distribute it widely so that every Dalit community can educate itself about its rights under the law, and use this book as a resource to make the state fulﬁ ll its duties and enforce Dalit rights.

–Dalits and the Law June 2005

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |219 MISUSED? OR NOT USED AT ALL?

ccustomed, as we are, to lawyers and judges saying that the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is being misused, I was amazed to Afi nd and document over the last few years that, in fact, the Act is not being used at all. Right across the country after the commission of the most barbaric atrocities and repeated instances of practices of untouchability the Act was found to be virtually defunct. Dalits who try to register a fi rst information report about an offence are faced with insurmountable obstacles. The police are arrogant and offensive. A majority of criminal cases do not get registered at all. When the complaints are written by the police, these materially depart from the story orally communicated. The names of the accused persons will be found missing. The description of the atrocity will be diluted. The actual words of abuse will be omitted and apart from Section 3 (x) of the Act no other section will be invoked. Activists estimate that less than one percent of cases in the country are actually registered. Under the Act, the investigation is to be done by a police offi cer not lower in rank than a deputy superintendent of police. However, in many cases, the investigation is done by junior offi cers and these trials are invariably quashed. In criminal trials generally, breach of such a provision would be viewed as a mere irregularity not vitiating the trial save when prejudice can be shown, but in the case of the Atrocities Act, the Supreme Court held this irregularity goes to the root of the matter and renders the entire prosecution invalid. As a result of this, erroneous decision, hundreds of cases, where accused persons have been convicted, have been quashed and the accused roam free. This is truly a grave miscarriage of justice. On the fi ling of a chargesheet, bail is invariably granted and lawyers appear to be reconciled to this. As a result, persons accused of grave social crimes with respect to atrocities and practices of untouchability, roam free. Immediately on their release they begin to threaten the complainants and force them to withdraw their complaints or to turn hostile in the court. In rape and dowry death cases, the Supreme Court has held that bail ought not to be granted. Perhaps the time has come for a modifi cation in the principle “bail not jail,” and in cases of grave social crimes the accused ought to be kept in jail and not granted bail as a matter of course. Of course, in such circumstances, the trial ought to begin as quickly as possible. Then justice will be seen to be done. When a Dalit persists with a criminal case repercussions follow almost immediately, often with consequences even more serious then the original offence. A social and economic boycott begins. The services of the Dalit labourers connected with the complainant are invariably terminated and they can fi nd no employment anywhere. Shops will not sell them goods. Vendors will be prohibited from selling vegetables and essential products to the Dalits. Ultimately, they will be forced

|220 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation DALITS to leave the village or face terrible physical reprisal. There is almost an immediate connection between the making of a case and the complainant leaving the village for good. The police are a good for nothing lot. Almost immediately on the making of a complaint they will advise the complainant to withdraw it insinuating in a threatening manner that if the complaint is not withdrawn a counter complaint would be fi led by the accused resulting in the arrest of the complainant. All through the country, Dalits uniformly complain of policemen threatening them with dire consequences were they to pursue their cases. Then come the prosecutors to mess up the litigation further. Drawn mainly from the upper castes they immediately identify with the accused and begin to sabotage the criminal trial. They will not summon the relevant witnesses. They will advise witnesses for the prosecution to make such statements as will weaken the prosecution case. They will not produce relevant forensic evidence available to them. Finally, they will argue with such lack of conviction so as to indicate to the judge that the case lacks merits. Truly the entire Judicial System where Dalits are so underrepresented, operates unequally against the victims of these most heinous crimes. It is no wonder that Dalit lawyers throughout the country have repeatedly made the demand for reservation in the Judiciary. It is equally no wonder that judges throughout the country have uniformly rejected this demand. As a result, the Act remains unimplemented with judges, lawyers, prosecutors, and policemen hardly interested in the implementation of the Statute. Studies done by People’s Watch in Tamil Nadu and by Sakshi in Andhra Pradesh show that the rate of conviction is less than one percent. A social audit by government is sorely needed. But if the Act is hardly being used why does the legal fraternity propagate the myth that the Act is being misused. The answer to this lies in the deep rooted nature of casteism in our country. After over fi ve decades of Independence casteism is more entrenched and widespread today than it was at Independence. The social and moral fabric of Indian society is rend asunder. I have seen cases enumerating such horrifi c social crimes that it may truly be said that modern Indian civilisation is, in this regard, one of the most barbaric, backward and uncultured societies that exists in the 21st century. I have seen cases where the upper castes have thrown excreta into the wells of the Scheduled Castes with neither the police nor the Judiciary caring to intervene. Temples being constructed by the Scheduled Castes have been brutally demolished only because the dust from the construction is “polluting” the areas where the upper castes live. Terrifying instances are recounted in place after place where Dalits have been brutally beaten and have had their villages raised to the ground only because they dared to bathe in the common village pool or draw water from the well of the upper castes at times of drought. Filthy abuse is common. Forcing Dalits to vote against their will for an upper caste candidate is common. In Punjab, Dalits were forced to drink urine from a shoe. Instances of stripping and parading Dalit women are regularly documented and reported. Cutting their trees or robbing their buffaloes is a routine.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |221 CHAPTER NINE

In Uttar Pradesh, where I went to investigate encounter deaths, on closer scrutiny I found such instances to be none other than the murder of Dalits in land grabbing cases. Case studies from Punjab similarly indicate that the majority of the persons killed in encounters are Dalits and in situations unrelated to militancy most often in tussles over property. Even abject hunger and malnutrition does not diminish the crippling power of caste. In the Right to Food Campaign, after the Supreme Court made it mandatory for the Mid-day Meal to be served by government in every primary school, complaints from the Scheduled Castes came in everywhere. The upper castes were most unhappy that their children would have to sit and eat together with the Scheduled Castes and they were even more offended when the cooks and helpers appointed under the orders of the Supreme Court were Dalits. This was an instance where the order of the Court touched not only the issue of nutrition but also impacted positively on social discrimination. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is truly a marvelous piece of legislation. So too is the Protection of Civil Rights Act, 1955. The drafting of Section 3 of the Atrocities Act was done in an innovative manner by a senior IAS offi cer who painstakingly recorded the various instances of atrocities against Dalits prevailing at that time. It is a fi ne example of a Statute being factually informed by the practical realities of the sufferings of the people for whom the Statute was intended. But the sub sections of Section 3 which set out the atrocities are never used by the police save Section (x) which deals with insults in the public place. It is my impression that the provisions relating to the forfeiture of the property of accused persons, the removal of persons likely to commit an offence from the area and the imposition of a collective fi ne have never been used. Under Section 18 of the Act, anticipatory bail cannot be granted. Nevertheless, the courts have got around this provision. Collusion between the police and the prosecutor in the drafting of the faulty chargesheet often enables the court to conclude that the incident had nothing to do with the caste question and hence, since normal criminal law applied, anticipatory bail could be granted. In training after training of Dalit lawyers, we found lawyers and social workers unaware of the precautions to be taken while lodging a complaint or registering an FIR. Victims would invariably, particularly in the presence of hostile police offi cers, leave out a detail here or there while the men in khaki would make their own cleaver improvisations thus rendering the complaint incomprehensible and impotent, thus inevitable acquittal. Under the rules, the authorities are to take proactive steps to prevent atrocities from taking place. They are required to visit the area, cancel the gun licences of the upper castes, seize fi re arms, if necessary provide arms licences to the Dalits to protect themselves and their property, set up vigilance committees and deploy special police forces. After the atrocity takes place the authority are to draw up a list of victims, prepare a detailed report of the loss and damage to the property of the victims, provide protection to the witnesses, provide immediate relief in the form of cash, food, water, clothing, shelter, medical aid, compensation and transport facilities. Under Rule 15, every state government is required to prepare a model contingency plan which is to be followed in every instance of atrocity. This plan is to provide for relief as above-mentioned, allotment of agricultural land and house sites, rehabilitation packages, employment in the government, pensions

|222 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation DALITS for widows and other dependents, houses, healthcare facilities and so on. None of these provisions have ever been followed. The rules provide for compensation to be paid but compensation is never paid. In a Punjab training, we were told that the Government of Punjab had applied to the Centre for these amounts and had not paid a rupee for all these years. It is no wonder then that this section of society, oppressed a hundred times over with no sign of any redressal possible within the democratic framework, should in large numbers join the ranks of the Naxalites and pick up arms against the State. Particularly in the Northren belt, fl eeing brutal social and economic oppression, they join the militants in the thousands. Treated by society as less than human they fi nd, in the ranks of the dispossessed, a new sense of dignity and purpose. Violence can never be justifi ed. But when one studies the miserable lives of the Scheduled Castes in our country and their struggle for a humane existence, one cannot help but sympathise with the choices that they are forced to make. And we have only ourselves to blame.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |223

TRIBALS TEN CHAPTER

1. Judicial Tyranny of Land Acquisition 2. Saving Tribals, Trees and Tigers Photo: Harsh Dobhal

Distaste for the poor, and the innate belief that the Tribals are basically wildlife hunters and tree cutters, dominates the mindset that has seen certain groups suggest to the government that forest areas be secluded by prison–wall- like structures with barbed wire and sentry posts. |226 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation JUDICIAL TYRANNY OF LAND ACQUISITION1

o Statute, in colonial or Independent India, has been used against the interests of the poor as much as the Land Acquisition Act, 1894. From Independence upto 1995, millions of Npeople were displaced from land due to a variety of reasons including forcible displacement for public projects. The Judiciary has played a signifi cant role in executing this Statute without investing the least care for the effects of land acquisition on small and medium landholders and on agricultural labourers. This is an article which talks about how the Judiciary has remained oblivious to the suffering of the rural people. But this is just one part of the story. The entire story is diffi cult to comprehend and requires careful research and analysis. But this one chapter will probably shed light upon how blind the legal system is to the plight of the working people. The article also focuses on land acquisition, under Part II for the state and instrumentalities and agencies of the state, and compares this with Part VII of the Act, which is acquisition for a company. At the time of enactment of the Land Acquisition Act, 1894, the Second Select Committee, in its report dated 24.1.1894,2 submitted to the Council of the Governor General of India, gave an explanation regarding the proviso to Section 6 of the Act. The proviso is as under: “Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.” The explanation given by the Select Committee was as follows: “The object of the amendment we have suggested in the proviso to Section 6 is to enable land to be acquired under the Bill for the purposes of colleges, hospitals and other public institutions which are in some cases only partly supported out of public revenue or the funds of local authorities.” Mr HW Bliss explained the difference between the two parts of the Land Acquisition Bill thus: “Part VII of the Act lays down the procedure to be adopted when it is sought to acquire land for companies. It indicates, though perhaps not so clearly as desirable, that it is not intended that the law shall be put in force for the acquisition of land for all companies. It is not intended, that is to say that the Act shall be used for the acquisition of land for any company in which the public has merely an indirect interest and of the works carried out by which the public can make no direct use. The Act cannot therefore be put into motion for the benefi t of such a company as a spinning or weaving company or an iron foundry, for although the

1 This article is substantially based on submissions made in the Special Leave Petition (Civil) No. 17461 of 2006, Leela Nagesh Mandke vs State of Maharashtra, pending in the Supreme Court of India. 2 Bombay Government Gazette Part VI, and dated 01.02.1894 pp. 18 – 29 : Gazette of India Part V, 27.1.1894 pp. 23 & 24. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |227 CHAPTER TEN

works of such companies are distinctly ‘likely to prove useful to the public’ (to use the words of Section 48), it is not possible to predicate of them ‘the terms on which the public shall be entitled to use’ them, a condition precedent to the acquisition of land laid down in Section 49. It is important both that the public should understand that the Act will not be used in furtherance of private speculations and that the local governments should not be subject to pressure, which it might possibly sometimes be difﬁ cult to resist, on behalf of enterprises in which the public have no direct interest.”3 Constitutional Bench decisions of the Supreme Court in 1961 and 1962 decimated this difference. These cases are: Pandit Jhandu Lal and Others vs The State of Punjab and Another [(AIR.1961.SC.343)]; RL Arora vs The State of Uttar Pradesh [(AIR.1962.SC.764)]; and Smt. Somawati and Others vs State of Gujarat [(AIR.1963.SC.151)]. In Pandit Jhandu Lal and Others vs The State of Punjab and Another [(AIR.1961.SC.343)], agricultural land of farmers was taken for the construction of houses for the workers of a company under a government sponsored housing scheme. No attempt was made by the government to comply with the requirements of Part VII of the Act. Holding that the construction of residential quarters for industrial labourers is a public purpose, and noticing that a large proportion of the compensation money was to come out of public funds, the Supreme Court began the obliteration of the difference between Part II and Part VII in the following terms: “In the case of an acquisition for Company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition for a public purpose is that the cost of the acquisition should be borne, wholly or in part, out of public funds. Hence, an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds.” There was a backlash in the RL Arora vs The State of Uttar Pradesh [(AIR.1962.SC.764)]. In this particular case, agricultural land was acquired, for an industrialist in Kanpur, for the construction of a textile machinery-parts factory. No action was taken under Part VII. Though this decision is generally favourable to the person opposing acquisition, a complication arose, according to the observations made in paragraph 6, over the issue of whether or not “the entire compensation” had to be paid by the corporation. Since the entire compensation came from the corporation, Chapter VII was said to apply and, since the procedures were not followed, the acquisition was set aside. It is no doubt true that there are some progressive observations in paragraph 13 to the following effect: “it seems to us that it could not be the intention of the legislature that the government should be made a general agent for companies to acquire lands for them in order that the owners of companies may be able to carry on their activities for private proﬁ t. If that was the intention of the legislature it was entirely unnecessary to provide for the restrictions contained in Ss. 40 and 41 on the powers of the government to acquire lands for companies. If we were to give the

3 Proceedings of the Council of the Governor General of India: Gazette of India Part VI, 12/03/1892, pp. 25 at p. 28. |228 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS wide interpretation contended for on behalf of the respondents on the relevant words in Ss. 40 and 41 it would amount to holding that the legislature intended the government to be a sort of general agent for companies to acquire lands for them, so that their owners may make profi ts.” The Court then dealt with the submission that the acquisition would come under Part II as the company was producing goods that were useful to the public and that therefore the acquisition was for a public purpose. The Court held: “It can hardly be denied that a company which will satisfy the defi nition of that word in S. 3 (e) will be producing something or other which will be useful to the public and which the public may need to purchase. So on the wide interpretation contended for on behalf of the respondents we must come to the conclusion that the intention of the legislature was that the government should be an agent for acquiring land for all companies for such purposes as they might have provided the product intended to be produced is in general manner useful to the public, and if that is so there would be clearly no point in providing the restrictive provisions in Ss. 40 and 41. The very fact, therefore, that the power to use the machinery of the Act for the acquisition of land for a company is conditioned by the restrictions in Ss. 40 and 41 indicates that the legislature intended that the land should be acquired through the coercive machinery of the Act only for the restricted purpose mentioned in Ss. 40 and 41 which would also be a public purpose for the purpose of Section 4. We fi nd it impossible to accept the argument that the intention of the legislature could have been that individuals should be compelled to part with their lands for the profi t of others who might be owners of companies through the government simply because the company might produce goods which would be useful to the public.” The Court concluded: “There is in our opinion no doubt that the intention of the legislature was that land should be acquired only when the work to be constructed is directly useful to the public and the public shall be entitled to use the work as such for its own benefi t in accordance with the terms of the agreement which under Section 42 are made to have the same effect as if they form part of the Act.” In paragraph 21 of the decision, the Court gave the example of the construction of hospitals and libraries as works satisfying Sections 40 and 414 and held that agreements have to be entered

4 S. 40. Previous enquiry: (1) such consent shall not be given unless the appropriate government be satisfi ed, either on the report of the collector under Section 5A, sub Section (2), or by an enquiry held as hereinafter provided- (a) that the purpose of the acquisition is to obtain land for the erection of dwelling-houses for workmen employed by the company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or (b) that such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public. (2) Such enquiry shall be held by such offi cer and at such time and place as the appropriate government shall appoint. (3) Such offi cer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure, 1908 (5 of 1908) in the case of Civil Court. S.41 Agreement with appropriate government – If the appropriate government is satisfi ed after considering the report, if any, of the collector under Section 5A, Sub-section (2), or on the report of the offi cer making an enquiry under Section 40 that the proposed acquisition is for any of the purpose referred to in clause (a) or clause (aa) or clause (b) of Sub-section (1) of Section 40, it shall require the company to enter into an agreement with the appropriate government, providing to the satisfaction of the appropriate government for the following matters, namely: the payment to the appropriate government of the cost of the acquisition; KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |229 CHAPTER TEN into so that the public may directly use such facilities. The majority decision in Smt. Somawati and Others vs State of Gujarat [(AIR.1963.SC.151)] put the fi nal nail in the coffi n and whatever slim chances existed, for a pro-poor orientation of the Statute, evaporated. This was a case where the government sought to acquire agricultural land for the purposes of setting up a factory for the manufacture of compressors and other equipment. The Punjab Government sanctioned the unbelievably piffl ing amount of Rs. 100 for the purpose of acquisition. The government admitted that the requirements of Part VII had not been complied with. It was contended, by the writ petitioners, that the token amount itself indicated that the acquisition was not for a public purpose. It had been used for a private company, in defi ance of Part VII. The Constitutional Bench upheld the acquisition in the following manner: “We would like to add that the view taken in Senga Naicken’s case, ILR 50 Mad 308 : [(AIR.1927.Mad.245)], has been followed by the various High Courts in India. On the basis of the correctness of that view the state governments have been acquiring private properties all over the country contributing only token amounts towards the cost of acquisition. Titles to many such properties would be unsettled if we were now to take the view that ‘partly at public expense’ means substantially at public expense. Therefore, on the principle of stare decisis the view taken in Senga Naicken’s case, ILR 50 Mad 308 : [(AIR.1927.Mad.245)], should not be disturbed.” Subba Rao, J. set out a sterling dissent referring to Section 6(1).5 He held that: “a reasonable construction of this provision uninfl uenced by decisions would be that in the case of an acquisition for a company, the entire compensation will be paid by the company and in the case of an

the transfer, on such payment, of the land to the company; the term on which the land shall be held by the company; where the acquisition is for the purpose of erecting dwelling-houses or the provision of amenities connected therewith, the time within which, the conditions on which the manner in which the dwelling houses or amenities shall be erected or provided; (4A) where the acquisition is for the construction of any building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, the time within which and the conditions on which, the building or work shall be constructed or executed; and where the acquisition is for the construction of any other work the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. 5 S. 6(1) Declaration that land is required for a public purpose – (1) Subject to the provisions of Part VII of this Act, when the appropriate government is satisfi ed after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a secretary to such government or of some offi cer duly authorised to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notifi cation under Section 4, Sub-section (1) irrespective of whether one report or different reports has or have been made whenever required under Section 5A, Sub-section (2): Provided that no declaration in respect of any particular land covered by a notifi cation under Section 4, Sub-section (1)- published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967) but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984) shall be made after the expiry of three years from the date of the publication of the notifi cation; or published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notifi cation. Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some found controlled or managed by a local authority.

|230 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS acquisition for a public purpose the government will pay the whole or a substantial part of the compensation out of public revenues. The underlying object of the section is apparent; it is to provide for a safeguard against abuse of power. A substantial contribution from public coffers is ordinarily a guarantee that the acquisition is for a public purpose. But it is argued that the terms of the section are satisfi ed if the appropriate government contributes a nominal sum, say a pie, even though that total compensation payable may run into lakhs. This interpretation would lead to extraordinary results… The idea that in one case the compensation must come out of the company’s coffers and in the other case the whole or some reasonable part of it should come from public revenues. This idea excludes the assumption that practically no compensation need come out of public revenues. The juxtaposition of the words ‘wholly or partly’ and the disjunctive between them emphasise the same idea. It will be incongruous to say that public revenue shall contribute rupees one lakh or one pie. The payment of a part of compensation must have some rational relation to the compensation payable in respect of the acquisition for a public purpose. So construed ‘part’ can only mean a substantial part of the estimated compensation.” He then concluded: “We think that the Legislature, when they passed the Land Acquisition Act, did not intend that owners should be deprived of their ownership by a mere device of private persons employing the Act for private ends or for the gratifi cation of private spite or malice.” It may be noted that at the time of enactment of the Land Acquisition Act, 1894, the Second Select Committee in its report dated 24.1.18946 submitted to the Council of the Governor Gen- eral of India explained the second proviso to the declaration under Section 6(1) in the following terms: “The object of the amendment we have suggested in the proviso to Section 6 is to enable land to be acquired under the Bill for the purposes of colleges, hospitals and other public institutions which are in some cases only partly supported out of public revenue or the funds of local authorities.” Legislature fights back The anguish of the legislature was immediately obvious. Shri SK Patil, speaking in the Lok Sabha7 proposing the Land Acquisition (Amendment) Act, 1962, complained: “what happened after this Aurora case? After this Aurora case when the judgement was against those words, a similar case arose in Punjab only last month or three or four months back, in May. They had to acquire some land for air-conditioning. I do not know out of the two, machinery for textile or air-conditioning, which is a larger public purpose. According to me the fi rst is. The textile machinery is surely a larger public purpose. Even then, I do not go into that but the government saw that they were likely to be attacked if they acquired lands under Chapter VII or Part VII. Therefore, they were wise enough and they went to Part II. Part II puts no obligation on the government of any type. Not only they could acquire but they have got to pay some money. Therefore, do you know, how much they paid? They paid Rs. 100 for the land. Technically they have to pay some money. In the other part, when it is acquired for a company, the money is to be paid wholly by that company. Therefore in

6 Bombay Government Gazette Part VI, and dated 01.02.1894 pp. 18 – 29 : Gazette of India Part V, 27.01.1894 pp. 23 & 24. 7 Lok Sabha Debates, 3rd Series, Vol. 7, and dated 30.08.1962, cols. 5129 & 5130. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |231 CHAPTER TEN order to satisfy the requirement of law, they paid Rs. 100 and acquired the land for themselves which they have a right to do and then they gave it for the air-conditioning plant, etc. The case went to the Court and this judgement of Aurora versus the UP Government was quoted in that court also and the judgement of the fi ve judges of the Supreme Court said: ‘Whatever it might be, once the state government, in its wisdom, acquires the land for a public purpose, its decision is fi nal and unchallengeable. We have no right to challenge the decision of it because the wording of Section 4 of Chapter II does give us any loophole that we might go through it and change the meaning of it. They are competent and the compensation is also not justiciable.’ You can see. Therefore we are trying to prevent these, that hereafter the state governments should not go to the length of acquiring land under Part II even for companies. Therefore, my friend opposite will see that I am restricting the law in order to take away the liberty of the states to acquire lands under Part II in which the fi nal decision is only what they decide and not as is given here and many other things might happen. Here I am making it under Part VII so that all those restrictive measures that have been put including the compensation should be applied to it and it should not be very easy for the state government to acquire it for anything and everything. This is the distinction that is sought to be made.” The proposal to amend the Act did not materialise and Shri SK Patil told the Lok Sabha that a more comprehensive Bill would be placed before the House. It took 22 years for the new amendment to be placed before the Lok Sabha. On August 6, 1984, Bill No. 63 of 1984 was introduced in the Lok Sabha to amend the Land Acquisition Act, 1894. In the statement of objects and reasons it was set out that the “promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the state or an enterprise under it… The main proposal for amendment is as follows:.. (ii) Acquisition of land for non-government companies under the Act will henceforth be made in pursuance of Part VII of the Act in all cases.” Piloting the Bill through the Lok Sabha and the Rajya Sabha the minister, Mohsina Kidwai, said: “I would now like to draw the attention of the Honourable Members to some other provisions of the Bill …The scope of the term ‘public purpose’ has been revised so as to provide for acquisition of land for all socially important purpose, but at the same time to obviate the possibility of misuse of this provision….”8 This is how the Act was amended and a new Section 3(cc) was introduced and a new Section 3(e) was substituted thus separating companies from government entities. The most important change came in 3(f) where an exclusionary clause was introduced to the expression public purpose making it very clear that acquisition of land for companies was excluded from the expression public purpose in Section 3(f). It appears that in some publications the exclusionary rider is shown as a continuation of clause

8 Lok Sabha Debates, 7th Series, Vol. 51 No. 24, dated 25.08.1984. Rajya Sabha Debates, Vol. 131, No. 26, dated 28.08.1984.

|232 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS

(viii) above. However, in the Bill9 and subsequent gazette publications of the amended Act the exclusionary rider is set apart from clause (viii) and has a different intend showing that it is exclusion to the entire sub-section. This is the only way to read this exclusionary clause by reading it together with the statement of objects and reasons. The rider is correctly set out in HMT House Building Cooperative Society vs Syed Khader [(1995.2.SCC.677)] and Jnanedaya Yogam vs KK Pankajakshy [(1999.9.SCC.492)]. Judiciary ignores the amendment There are several decisions of the Supreme Court with regard to land acquisition done after the 1984 amendment. These may be divided into 4 categories. First, where the decision relies on pre-1984 judgements of the Supreme Court and do not notice the critical amendment in Section 3(f). The second, are those decisions that reproduce Section 3(f) incorrectly as if the rider is connected to Section 3(f) (viii) alone. The third are those that correctly set out 3(f) and then proceed on the assumption that the amended section makes no difference at all. The fourth categories are those cases that correctly interpret the amended Section 3(f). Dealing with the third categories of cases; in Pratibha Nema vs State of MP [(2003.10.SCC.626)] land was acquired under Part II for the establishment of a diamond park. The Supreme Court relied on Smt Somawanti’s vs State of Punjab,10 Jage Ram vs State of Haryana,11 Manubhai Je- htalal Patel vs State of Gujarat,12 Indrajit C. Parikh vs State of Gujarat,13 Bajirao T Kote vs State of Maharashtra,14 R.L. Arora vs State of UP,15 Srinivasa Co-op House Building Society Ltd vs Madam Gurumurthy Sastry16 and Pandit Jhandu Lal vs State of Punjab17 and upheld the acquisition under Part II in the following terms: “One thing which deserves particular notice is the rider at the end of clause (f) by which the acquisition of land for companies is excluded from the purview of the expression ‘public purpose.’ However, notwithstanding this dichotomy, speaking from the point of view of public purpose, the provisions of Part II and Part VII are not mutually exclusive as elaborated later.” This observation is utterly wrong and the decision is in utter disregard of the amendment and deserves to be set aside by a larger Bench. Every one of the decisions relied upon were in respect of pre amendment acquisitions though the decisions may have been rendered after 1984. The conclusion of the Supreme Court in this case is utterly retrogressive and is set out below: “Thus the distinction between public purpose acquisition and Part VII acquisition has got

9 Bill No. 67 of 1982: Gazette of India (Ext.), Part II, Sec. 2, dated 30.04.1982, pp. 14 – 23, in the Bill No. 63 of 1984: Gazette of India (Ext.), Part II, Sec 2, No. 41, dated 06.08.1984, pp. 1-14, and also the Land Acquisition (Amendment) Act, 1984: Gazette of India (Ext.), Part II, Sec 1, No. 86, pp. 1-11, dated 24.09.1984, pp. 1-14. 10 (AIR 1963 SC 151). 11 (1971 1 SCC 671). 12 (1983 4 SCC 553). 13 (1975 1 SCC 824). 14 (1995 2 SCC 442). 15 (AIR 1964 SC 1230). 16 (1994 4 SCC 675). 17 (AIR 1961 SC 343). KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |233 CHAPTER TEN

blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the decisive distinction lies in the fact whether the cost of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the government was held to be suffi cient compliance with the second proviso to Section 6 as held in catena of decisions. The net result is that by contributing even a trifl ing sum, the character and pattern of acquisition could be changed by the government. In ultimate analysis, what is considered to be an acquisition for facilitating the setting up of an industry in the private sector could get imbued with the character of public purpose acquisition if only the government comes forward to sanction the payment of a nominal sum towards compensation. In the present state of law, that seems to be the real position.” The decision in Somawanti’s case,18 to the effect that even a nominal contribution by the government would convert an acquisition for a company into a public purpose acquisition under Part II was taken to absurd levels in Indrajit C Parekh vs State of Gujarat19 where it was held that even a nominal contribution of one rupee would validate the acquisition. Similarly in Manubhai Jehtalal Patel vs State of Gujarat20 the Supreme Court held that “the contribution of one rupee from the public exchequer cannot be dubbed as illusory so as to invalidate the acquisition.” These utterly irrational decisions eventually decimated the crucial difference between acquisition for companies and acquisition for public purposes. This deplorable trend continued with Pratibha Nema’s case.21 Thus the explicit intention of Parliament not to permit state governments becoming agents for companies and misusing the Land Acquisition Act by pretending that acquisition of lands for companies was for a public purpose, was thwarted by the Supreme Court. Dealing with the fourth categories of cases; though there was a feeble attempt by some Benches of the Supreme Court to restrict acquisitions for companies using the guise of public purpose; these were very few and could be easily distinguished. In Jnanedaya Yogam vs KK Pankajakshy,22 a registered society sought the intervention of the government to acquire land for a religious procession celebrating a festival in the Jagannath Temple. The Supreme Court held that such an acquisition would be governed by Part VII and would not fall within defi nition of “public purpose” as defi ned in Section 3(f) of the Act. In Devinder Singh vs State of Punjab23 where the State initiated Part II proceedings to acquire land for a tractor manufacturing company, the Supreme Court after noticing the amended Section 3(f) correctly held as follows: “When a request is made by any wing of the state or a government company for acquisition of land for a public purpose, different procedures are adopted. Where, however, an application is fi led for acquisition of land at the instance of a ‘company,’ the procedures to be adopted therefore are laid down in Part VII of the Act.”

18 (1963 2 SCR 774). 19 (1975 1 SCC 824). 20 (1983 4 SCC 553). 21 (2003 10 SCC 626). 22 (1999 9 SCC 492). 23 (AIR 2008 SC 261). |234 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS

Though the Court is shown the decision in Pratibha Nema’s case24 the Court declined to follow that ratio and held as under: “Expropriatory legislation, as is well known, must be strictly construed. When the properties of a citizen is being compulsorily acquired by a state in exercise of its power of Eminent Do- main, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are principal requisites therefor. In the case of acquisition of land for a private company, existence of a public purpose being not a requisite criteria, other statutory requirements call for strict compliance, being imperative in character.” The Supreme Court then relied on the decision of the Supreme Court in General Government Servants Cooperative Housing Society Ltd Agra vs Sh Wahab Uddin25 and concluded that Rule 4 was mandatory and companies were required to negotiate with farmers and avoid acquisition of agricultural land. In that case, the Supreme Court held: “The above consideration shows that Rule 4 is mandatory; its compliance is no idle formality; unless the directions enjoined by Rule 4 are complied with, the modifi cation under Sec- tion 6 will be invalid. A consideration of Rule 4 also shows that its compliance precedes the notifi cation under Section 4 as well as compliance of Section 6 of the Act.” This decision, however, could easily be distinguished on facts as payment by the government for acquisition came after the Section 4 notifi cation. It can therefore be argued that this was a case where the entire contribution for acquisition was to come from a company and that the subsequent payment by government was to cover up for what was essentially acquisition for and paid for by a company. In Chaitram Verma vs Land Acquisition Offi cer,26 acquisition was started for construction of a railway siding for a cement plant of TISCO. The High Court held: “The last part of the defi nition i.e. ‘it does not include acquisition of land for companies’ is important and brings out the obvious fact that even though a ‘public purpose’ may be served by acquiring land for companies, the expression ‘public purpose’ as used in the Act does not include such acquisition… But the use of exclusionary sentences as the end would make the difference and indicate that except for acquisitions for companies which cannot be treated as acquisition for public purpose, all other purposes are included within it… Under the circumstances whatever may the extent of purpose included within the defi nition of ‘public purpose’ acquisition for company is excluded from it. Clearly therefore, an acquisition for a company is to be distinguished from acquisition for a public purpose, and an acquisition for a company even though serving public purpose, cannot, in the context of S.3(f) of the Act, be accepted as an application for a public purpose… Legal position was different before the amendment of the defi nition in 1984 by Act No. 68 of 1984. The defi nition of ‘public purpose’ in S.3(f) of the Act before this amendment did not have any exclusionary clause and was inclusive. Similarly S.4(l) of the Act permitted issue of notifi cation only for a ‘public purpose’. It was therefore possible to then submit that if ‘public purpose’ is served by a company, there

24 (2003 10 SCC 626). 25 (1981 2 SCC 353). 26 (AIR 1994 MP 74). KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |235 CHAPTER TEN

would be no illegality in the acquisition for a company on the basis of notifi cation mentioning acquisition for a public purpose.” In State of Punjab vs Raja Ram,27 land was acquired for the construction of godowns for the Food Corporation of India. The acquisition was set aside in the following terms: “The Corporation being a ‘company’ compliance with the provision of Part VII of the LA Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case.” The elitist approach: How articulated The tilt towards corporations and away from the poor was legally articulated in the following way. First it was said that public purpose is incapable of being defi ned. Second, that benefi t must come to some part of the population (not necessarily the vast majority of the poor: even the rich are part of the public). Third, that the doctrine of eminent domain gives the state vast powers to take people’s land. Fourth, the government is the best if not the only judge of what constitutes public purpose. This body of case law develops in a situation where the state is only too anxious to help corporations for kickbacks. Extensive corruption surrounds land acquisition proceedings. It is the lands of the poor that are invariably taken. Rich farmers and others are able to adroitly avoid acquisition by political lobbying. It is in this situation that the courts develop a hands-off policy thus inadvertently legitimising the expropriation of small farmers landholdings to facilitate corporate profi teering. One could speculate as to what direction the courts would have gone if a government had come to power that began the appropriation of the lands of rich farmers for genuinely socialistic purposes such as education and health. It is entirely possible that a new jurisdiction would have emerged. The decision in RL Arora’s case,28 has conveniently been forgotten. The ratio that public purpose should be directly useful to the public and the public shall be entitled to use the work as such for its own benefi t has never been followed thereafter. This was a pro-people interpretation of Section 3(f) of the Act. If rich persons and corporations wanted land for any purpose it was open to them to buy land from the open market on the basis of negotiation with farmers. Only if land was required for a project which was directly useful to the public and which the public could use as of right, would the Land Acquisition Act come into play. But this was not to be. An interpretation was given and followed for decades thereafter, which would allow for corporate takeover of agricultural land with a court’s not intervening at all. In Somavanti’s29 case, the Supreme Court upheld acquisition for a company manufacturing refrigeration compressors and held such an acquisition to be for a public purpose. In Jage Ram vs State of Haryana,30 relying on Somavanti, the Supreme Court upheld acquisition for a factory manufacturing China-wear and porcelain-war. Thus, in Somavanti, in an action relating to the taking of lands of farmers the Supreme Court set the bar so low as to make it almost impossible

27 (1981 2 SCC 66). 28 R.L. Arora vs The State of Uttar Pradesh (AIR 1962 SC 764). 29 (I963 2 SCR 774). 30 (1971 1 SCC 671). |236 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS to challenge acquisition proceedings. The acquisition could only be challenged if it was “not a public purpose but a private purpose or no purpose at all.” Thus the courts could not play any balancing act between the stated public purpose and the detriment to the public. Proportional- ity could not be assessed at all. After that everything under the sun met the standard of public purpose. In Sooraram Pratap Reddy vs District Collector31 the Supreme Court relied on the dissent in RL Aurora’s case32 where it was said “I think it would unduly restricting the meaning of the word “useful” to say that a work is useful to the public only when it can directly be used by the public.” Aurora’s case was not followed by reference to a series of American decisions on the point that public interest need not mean that every member of the public should benefi t. The American decisions were therefore not relevant at all. In the same decision (Sooraram) reference is made to Motibhai Vithalbhai Patel vs State of Gujarat,33 (which was for the expansion of Sarabhai Chemicals as if this corporation could not buy land on the open market paying market rates!) where public purpose was seen in such a cir- cular and indirect sense as to include saving in foreign exchange! The Court held “that even if the acquisition of land is for a private concern whosesole aim is to make profi t, the intended acquisition of land would materially help in saving foreign exchange in which the public is also vitally concerned in our economic system.” On this logic acquisition for a tax-paying corporation would also be in public interest, as the corporation would pay increased taxes on the transactions. The legal logic, by which the superior courts began to allow all kinds of unkind acquisitions that caused untold misery to the rural poor, was by adopting an almost complete hands off attitude in acquisition proceedings. In Sooraram’s case, the Supreme Court held that “government is the best judge.” In Daulat Singh Surana vs Collector,34 the Supreme Court went to the extreme extent of holding that “government has the sole and absolute discretion in the matter.” In Dhampur Sugar (Kashipur) Ltd vs State of Uttaranchal,35 the Supreme Court undercut its own role by saying that courts were “ill-equipped to deal with these matters,” because acquisition cases dealt with complex social, economic and commercial matters. “It is not possible for courts to consider competing claims and confl icting interests and to conclude which way the balance tilts. There are no objective, justiciable or manageable standards to judge the issues nor can such questions be decided on a priority considerations.” This is a point of view that is completely untenable. The superior courts deal with complex commercial matters day in and day out. They draw a balance between competing interests. They laid down justiciable standards where none exists. For the Supreme Court to avoid adjudication of competing interests in land acquisition matters shows that the court was by and large in line with the government’s policy of uncontrolled land acquisition. At root lay the uncritical reliance on the doctrine of “eminent domain” which has its origin in the

31 (2008 9 SCC 552). 32 (1962 SUPP (2) SCR 149). 33 (AIR 1961 Guj 93). 34 (2007 1 SCC 641). 35 (2007 8 SCC 418). KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |237 CHAPTER TEN colonial period and justifi ed colonial land grabbing all over the world. There is a sizeable and erudite body of literature situating this doctrine in imperial ideology and criticising it for its use as a foundation for government forcible acquisitions particularly of the lands of indigenous people. In Sooraram’s case the Supreme Court affi rmed this obnoxious doctrine by reference to Charanjit Lal Chowdhury vs Union of India,36 and followed thereafter in a series of cases.37 Conclusion The Judiciary appears to have misread the mood in the country particularly after the 1984 amendment. Prior to that the mood of nation building probably made judges feel that development was not possible unless acquisition was done freely and with public purpose given the widest possible scope. But to continue with such an approach in the period of globalisation where land acquisitions were done to promote corporate interests with the state becoming an estate agent of the companies, is quite another thing. To disregard, in the manner done, the intent of the 1984 amendment indicates how powerful the urge was among industrialists to grab the lands of farmers. As a result, large tracts of lands throughout the country mainly of small farmers, have been forcibly acquired and people displaced. There were mass protests against displacement everywhere but the superior Judiciary remained unmoved, doggedly anchored to their notions of “development” unresponsive to the distress of farmers, tenants and agricultural labourers and the decline of agriculture. During this period of globalisation from 1990 onwards the Union Gov- ernment withdrew credits from agriculture and followed conscious anti-farmer policies rendering agricultural production un-remunerative. In this context the compulsory acquisition of lands using this draconian Statute was the cruelest blow of them all. The way forward is for the Judiciary to compel all acquisitions for companies to follow the Part VII route and to reverse the decision in Somawanti’s case and hold that irrespective of the contribution by government, all acquisitions for companies must follow Part VII. The reason for this approach is not diffi cult to comprehend. State governments today have come under corporate control so completely that they are only too eager to spend large sums of state funds to assist corporations in the acquisition of lands using the Act. The Judiciary must understand that there is grave unrest in rural India and if it is to relate to the rural poor at all it cannot go by the Con- stitutional Bench’s decision of the earlier period. Times have changed. The rural economy is in ferment. With rural ferment everywhere, the time has come for the Supreme Court to heed the dissent of Subba Rao, J. in Somawanti’s case as set out above and the observations of the Su- preme Court in National Textile Workers Union vs PR Ramakrishnan;38 “we cannot allow the dead hand of the past to stifl e the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values.”

–Economic & Political Weekly Vol XLV, No 32, August 2010 Titte: Judicial Failure on Land Acquisition for Corporations

36 (AIR 1951 SC 41: 1950 SCR 869). 37 ComMr & Collector vs Durganath Sarma (AIR 1968 SC 394: 1968 1 SCR 561), (Coffee Board vs CCT (1988 s SCC 263: 1988 SCC (Tax) 308) & Scindia Employees’ Union vs State of Maharashtra (1996 10 SCC 150). 38 (1983 1 SCC 228). |238 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SAVING TRIBALS, TREES AND TIGERS

he debate − over the rights of Tribals, and other forest dwellers, to continue to reside in the forests of India − took place at a time when displacement from land, particularly of Tribals Tand Dalits, had reached a never–seen-before magnitude in the history of India. P Sainath, the lone voice writing in The Hindu, has documented the scale of the agrarian crises. Walter Fernandes has come to the conclusion that more than 50 million people have been displaced since Independence. He is of the view that another 50 million people will be displaced in the next ten years. Of the 82 million Tribal people in India, 10 million have been displaced by projects and fi ve million by urbanisation. Sixty seven million Tribals live in and around forest areas. Fifty million of these have been “settled” under the provisions of the Indian Forests Act. Seventeen million − many of them primitive tribes in Chhattisgarh, Orissa, Andhra Pradesh, Madhya Pradesh, Gujarat, Rajasthan and Jharkhand − are considered illegal and have been hunted down like animals by the police and forest guards. The slaughter of these Tribals did not fi nd mention in the newspapers. The killing of tigers saw a somewhat warped debate emerge and forest dwellers were blamed for the decline in the number of tigers in the country. Distaste for the poor, and the innate belief that the Tribals are basically wildlife hunters and tree cutters, dominates the mindset that has seen certain groups suggest to government that forest areas be secluded by prison–wall-like structures with barbed wire and sentry posts. It was suggested that the areas be patrolled by helicopter gunships. Everyone inside must be thrown out lock, stock and barrel. The Wildlife Protection Act was drafted with this narrow minded, sectarian, anti-people approach. This approach was doomed to fail for the simple reason that, while the walls were built to create a pretence of protection, the main doors of the fortress were opened by those paid to protect the forest, allowing the timber mafi a to remove, under offi cial patronage, protection and support, the nation’s forest wealth and to hunt endangered wildlife. The forest guards, and not the Tribals, are the true enemies of the forest. It is they who allow cricketers, fi lm stars and the wildlife mafi a to roam at will the national parks and sanctuaries. It is they who wine and dine with these people after night falls. Every Tribal knows this. On the other hand, the draft Forest Rights Bill, 2005, though promoted by certain Tribal organisations, is now clearly unacceptable to most groups representing Tribals and other forest dwellers. Apart from the fact that the Bill excludes non-Scheduled Tribes and other forest dwellers, the most obnoxious provisions of the Bill is the cut-off date of 1980 for the recognition of Tribal rights. Underlying this provision is the notion that all Tribals, since they have no written title to land, are

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |239 CHAPTER TEN basically encroachers and are required to be evicted. The State may grant some sort of relaxation and regularise Tribals who have lived in forests for a very long period of time. This notion is but- tressed by the old English law of trespass which is now universally recognised as inappropriate for the relationship that governs indigenous people and the forests they live in. Of all the countries, in the common law tradition, India is perhaps the most backward in its understanding of the rights of indigenous people. It is now a well-settled part of contemporary international customary law that indigenous people have a right to reside in forest areas and have access to fi shing rights and non-timber forest produce even in the absence of a written title to land. This right is subject to the restriction that the land cannot be alienated, the land is used in common, the live trees cannot be cut, wildlife cannot be hunted and mining cannot be done. The emerging principle in the common law tradition − from Australia, New Zealand, Canada, USA and South America − is that communal rights in land are not dependent on legislation or administrative orders (Calder). They are based on the natural right to domicile, the main feature being a historic use of land (Paulette). The fact, that such a right to occupancy fi nds no mention in any Statute or formal Executive Order − is not conclusive (Cramer). There is no need for this right to be formalised thus (Naragansett). This right may have been suppressed historically by colonial rule but has never been extinguished. The traditional forest dweller is entitled to a legitimate expectation that this right be respected (Symonds). This right, to reside, includes sustenance practices (Delgamuuku) and to an equal allocation of resources. It imposes a duty on the government to conserve resources (Washington). The State can exercise jurisdiction over a natural resource used by Tribal people only to the extent necessary for conservation (Sparrow). To this extent, it is a dual or shared interest. Internationally these rights have been recognised in the UN Resolution on the Rights of Indigenous People, the ILO Conventions No. 107 and 169 and the Convention on Biological Diversity. Community control of common resources existed widely in India in the pre-colonial era. It was suppressed during British rule. It has been restarted for the fi rst time in the Panchayats (Extension to the Schedule Areas) Act, 1996. If one recognises the Tribal and traditional forest dweller as part of the solution to the problem, then a plan of action can emerge. The Tribals have an organic relationship with nature. In normal circumstances they would protect not destroy. They live at near subsistence levels and do not seek commercial exploitation of forest wealth. Others do. It is the tragedy of India that the poorest live on lands with the greatest material wealth which, in the era of globalisation, attracts international exploitation. Biju Patnaik’s mega deal with multinational corporations − to throw out the Tribals, fi nish of the forests and exploit Orissa’s bauxite wealth − is now well documented. Therefore, the Tribals must be trusted because they are the only social force interested in, and capable of, protecting India’s forests. What must be done? Tribal organisations throughout India must be made to enter into a social contract with governments for the protection of forests and its wildlife. They will work out col- laborative strategies so that they too continue to reside in the forest, perhaps moving to different parts of the forest, to accommodate wildlife. These forests will be carefully monitored by environmental organisations. The ground rules will be that live trees cannot normally be cut; nor can

|240 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRIBALS mining be done; nor can wildlife be hunted. In return, they will be recognised as the original collective occupiers of the forests, as of right, and will have the right to subsistence through agriculture in certain areas and access to non-timber forest produce and fi shing. To enable subsistence and, in recognition of the invaluable services performed. the state should employ them as forest guards, for conservation work such as tree planting, fi re fi ghting and watershed management. Some can also be employed as tourist guides, as has been done in many of the national parks and sanctuaries of Africa. Only then will we save the Tribals, the trees and the tigers!

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |241

WOMEN ELEVEN CHAPTER

1. Law Discriminates Against Women 2. No Country Burns its Women Photo: Harsh Dobhal

The Constitution of India, one of the ﬁ nest in the world, prohibits discrimination on the ground of gender and guarantees equality. Yet women are routinely discriminated at work forming a miniscule and even decreasing part of the organised labour.

|244 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LAW DISCRIMINATES AGAINST WOMEN

he discriminatory nature of the Statutes enacted and sharp divergence − between the grand language of judgements and the actual implementation of the law − is evident in Tseveral decisions. Matrimonial property: All matrimonial laws, in India, are silent on the issue of matrimonial property. Property is presumed to belong to the person in whose name it stands. This formal equality of property ownership does not produce equal results as, in India, property generally stands in the name of the husband. The concept of joint community property, or property held in Trust, has never been used by lawyers and judges although this is a common law development and India is part of the common law tradition. It is high time lawyers in India begin to use foreign judgements in Indian courts. These new concepts apply to companions as well. In some cases, again drawing from common law, courts have ousted husbands from the matrimonial house, as in Shankar Wadhva’s case. Hindu law: Hindu law discriminates against the woman in respect of right of residence and partition, although courts have tried to moderate this discrimination as in the Janabai, Susheelabai and Jankibai cases. Male heirs were prevented from frustrating the woman’s right of residence by creating third party rights. Although the Hindu Succession Act was a step forward in giving women equal rights it did not go far enough and the discrimination continued in matters related to coparcenary property, the woman’s share and partition. Moreover, she could be deprived by a will. The Supreme Court generally interpreted the law in favour of women. Tulsamma’s case established the right of a Hindu woman to maintenance from the husband’s property; Deshmukh’s case, that the woman continues to be a member of a joint family even after her husband’s death; Kalavatibai’s case, the absolute ownership of inherited property under Section 14 of the HSA; Sushilabai’s case, the obligation of the male heirs to keep the property well arranged and available for the female heirs to enforce right of residence; Masilamani’s case, that CEDAW has become an integral part of In- dian law; and Madhu Kishwar’s case that Tribal female heirs continue to have right of livelihood. Muslim law: The Supreme Court missed the bus (or chose not to catch the bus) in the Avadesh and the AWAG cases. In both cases, the Court, saying that the matter pertained to the legislative ﬁ eld, refused to strike down the discriminatory provisions in the Muslim Women’s Act 1986 and other laws. The refusal of the Supreme Court to curb the evil of polygamy, talaq and other obnoxious anti-women practices is a historic failure. Shah Bano, however, remains the lone shining star, notwithstanding the pathetic capitulation by the government in enacting the Muslim Women’s Act 1986.

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Inroads were made into the otherwise oppressive nature of Muslim law by progressive judges. In Shah Banu’s case, the Supreme Court held that, though it is legal for a Muslim to take a second wife, it is a valid reason for the wife to lie apart and claim maintenance, In Shah Bano’s case it was held that a divorced wife can claim maintenance if she has not remarried. In Quamarun- nissa’s case it held that the phrase “within the Iddat period” refers to the period within which Meher must be paid and that maintenance was a separate concept and could not be limited to the iddat period. This judge law-making also could be seen in matters relating to custody and guardianship. Though Muslim law gave the father a dominant position, courts supplanted this by the common law principle that the paramount concern was the welfare of the child. With this, custody was at times given to the mother notwithstanding that, under Muslim law, the father was the natural guardian. Violence against married women covering dowry: Section 498A and Pratibha Rani’s case and Rashmi Kumar’s case put an end to the controversy regarding Streedhan with the Supreme Court holding that it was the absolute property of the wife. The defi nition of dowry was also given full effect to. In Jadhav’s case demands prior to marriage and, in Nikku Rani’s case, after marriage, constituted an offence. In Madhusudhan’s case the mere furnishing of a list of items amounted to a demand for dowry. Gopal Reddy’s case established the proposition that the demand need not be made in terms of money or valuable items. Pawan Kumar’s case established that a formal agreement for dowry was not needed. Circumstantial evidence: A series of decisions of the Apex Court then elaborated on the circumstantial evidence that was suffi cient to secure a conviction. In Kailash Kumar’s case, these were letters written by the deceased to relatives about dowry demands, harassment and her apprehension of danger to her life; in Umadevi’s case, a statement made by her to the police after she was burnt coupled with the indifferent attitude of the in-laws; in Shanti’s case, the hurried cremation of the body by the relatives; in Balvde’s case, the fact that the accused gave a concocted story of what had happened; Ganeshlal’s case established the point that the accused is obliged to give a plausible explanation for the death in his Section 313 statement; and Jagtap’s case, that it was not essential for the prosecutor to establish the actual participation of the accused. Dying declaration: Dying declarations of women implicating the in-laws and husbands have generally been relied upon. They were not to be questioned merely because they were not in question/answer form (Om Prakash); because it was brief and did not contain details (paniben); or because of minor discrepancies in two dying declarations (Govardhan). Jose’s case held the conviction could be based solely on the dying declaration and corroboration was not essential. The test of consistency, used in murder cases, was held inapplicable in dowry death cases (Medabai). Casual investigation: Casual investigations by the police came in for sharp criticism by the Supreme Court in Bhawant Singh’s case. Young women do not set fi re to themselves unless compelled by misery and mental torture and suffocating circumstances. Senior female offi cers ought to be entrusted with these investigations from the inception. Police inaction, and mere technicalities, should not allow the real culprits to get away (Sita Devi). In Lilabai’s case the

|246 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WOMEN police was castigated for changing the case from murder to suicide. In Bhola kumari’s case the Court held that the prosecution evidence ought not to be disbelieved merely because a defective investigation had been carried out by a negligent offi cer. Though the establishment of a motive is often essential for proving a crime, in bride burning cases, this is not so. Motive need not be established (Bhole Kumar) even in cases based on circumstantial evidence (Ganeshlal). Most important, anticipatory bail should not be granted in dowry death cases (Samunder Singh). The Supreme Court held, in Kailash Kaur’s case, that courts must award the death sentence in bride burning matters. I, however, do not agree with the imposition of the death sentence, no matter what the circumstances are. In Ravindra’s case, 10 years after Kailash Kaur’s case, the Supreme Court cast doubt on the effi cacy of the death penalty. Police investigation: Social remedies, in addition to the imposition of life imprisonment, were proposed. In the Joint Women’s Programme matter, the Supreme Court directed that the investigation be conducted by an offi cer not below the rank of superintendent of police. The states of Punjab and Haryana were directed to create a special jury cell in the Stree Atyachar Virodhi Parishad matter and the investigating agencies were told to display greater sensitivity and to avoid soft justice on all counts. In Ashok Kumar’s case, the Supreme Court recommended social boycott of the offender making him ineligible for the marriage market. In Kundula’s case the court called for a wider movement to educate women in their rights, particularly in rural areas where women are uneducated and fall an easy prey to exploitation. Though there were cases of misuse of Section 498A as is often the case with all progressive laws, and men were quick to use this to agitate for the deletion of this section, Section 498A still remains an important statutory weapon in women’s rights. In Vazir Chand’s case, it was held that minor inconsistencies, in the preventions case, were not signifi cant. In Madhuri’s case, the husband was sentenced for suspecting his wife of infi delity and for indulging in mud-slinging and character assassination. This case ought to deter husbands who feel they can slander their wives and get away with it. In Madhuri’s case, the vexatious litigation, instituted against the wife out of a sense of vindictiveness, was held to constitute an offence under this section. The abetment of suicide section was also used in favour of women. The mother-in-law driving the daughter-in-law to suicide was held to fall within the ambit of this section in Anjanaben’s case. So too was a constant demand for money and beating of the wife as in Brijlal’s case. Repeated demands likewise, as in Pavankumar’s case. In Protima Datta’s case, the Calcutta High Court held that letters, written by the deceased to relatives and friends, were admissible as evidence to prove ill-treatment. In Chandulal’s case, the Gujarat Court held that if there was a prima facie case against the accused, under Section 306, bail should be refused. There is an interesting decision of the Supreme Court in the AIDWA and Janwadi Samiti’s cases wherein an interim order was made by the Supreme Court prohibiting the chunri ceremony under the Commission of Sati Prevention Act 1987. Two foreign judgements also deserve mention. The fi rst being Rv/s Reid where the court held that a crime of kidnapping can be committed by a husband against the wife; and the second of Rv/s Thornton which deals with the battered wife syndrome.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |247 CHAPTER ELEVEN

Sexual offences: Such as those of rape, molestation and obscenity. The Tukaram and Bhanwari Devi cases show how judges can be biased against women while dealing with rape cases. In Priya’s case, where a swamy was involved in the rape, the Supreme Court held that the court ought not to be swayed by the submission that the accused is a saintly old man. Most important, from Rafi que’s case onwards, is the consistently held opinion that absence of injuries on the victim is not fatal to the prosecution. The decision in Rafi que’s case was repeated in the Balwant Singh and Prakash cases. The slightest of penetrations suffi ced and instance of spermatozoa was not necessary. In Babulnath’s case, even an attempted penetration was suffi cient to attract the section. Narayanamma repeated the proposition, that the absence of spermatozoa, was not fatal to the prosecution. On the whole, however, rape continued to be defi ned in these technical terms relating to penetration and the notion of rape − as physical violation of a women − has not yet been developed. In Gajanand’s case, the Supreme Court held that even if the prosecutrix was used to, and familiar with, the idea of sexual intercourse there can be no presumption of consent. In Santanu’s case, it was held that if a woman consents to sexual intercourse, because of a marriage assurance, that consent will not come in the way of a conviction under Section 376 IPC. The fact that a woman does not raise an alarm, and does not inform others, is not suffi cient to conclude that she consented (Vijayan’s case) and involuntary surrender, under police threats, does not show consent. Similarly, there was no scope of consent merely because the woman was simple enough to repose confi dence in the accused and stay with him in a hotel room. The inference − that if a woman is habituated to sexual intercourse, there can be no rape − was decisively put an end to in the Gurmeet and Raghubir cases where the trial court was cautioned not to allow indecent and scandalous questions, relating to the moral character, of the witness. In the Pramod gang rape case, it was established that it was not necessary, for conviction of all, that each of the accused should have raped the victim, once it is established that the accused had acted in concert. The disputes, relating to the fi rst information reports, were to some extent soothed by the Apex Court. The omissions in the FIR in Gajanand’s case were held to be of no importance. From Pirate’s case upto Gurmeet’s case it was held that the delay, in the lodging of the FIR, was understandable particularly in the Indian society where victims are hesitant to approach the police since rape involves questions of morality and chastity and the honour of the family. Once again defective investigation, by the police, in the Karnel Singh and Balwant Singh cases was held, not good enough, for acquittal of the accused. The Supreme Court approached the issue of evidence in rape cases fl exibly. The Indian woman’s inherent bashfulness, innocent naivety and feminine tendency to conceal the outrage are factors to be taken into account (Krishenlal’s case). Backward people do not make false charges because violation of laws, or social norms, is not their culture (Gajanand). Corroboration is not necessary (Damburu Naiko). Minor defi ciencies are immaterial (Nathuram). Conviction could be based solely on circumstantial evidence (Laxmi). In Rampali’s case, where a woman was raped by a police offi cer, conviction was upheld even though it was based on the sole testimony of the woman. In Vishnu Pandit’s case, the court said that, since offences against women are on the rise, judges

|248 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WOMEN should be careful in granting bail. As far as the sentence is concerned, the approach of the court has been erratic. The Supreme Court, on several occasions, has reduced the severity of the sentence in rape cases. This, however, is not true of all cases. In exceptional cases, the Supreme Court has dealt with rape cases very harshly. To take an example, in Laxmi’s case, the death sentence was imposed for rape and murder of the seven year old by her uncle; in Dhananjoy’s case, the death sentence was awarded for the rape and murder of an 18-year old girl by a security guard; in Babulnath’s case, the Supreme Court came down heavily on unmerited acquittals, particularly in crimes against girl children, which the court said encouraged criminals. The Supreme Court has, however, not functioned consistently. In Prakash’s case, where a rustic woman was raped by a police constable in uniform, the sentence imposed was that of a three year imprisonment period; in Raju’s case, because of the young age of the accused, the sentence was reduced from seven years to three years; Suresh’s case was that of the rape of a minor. No question of consent could be allowed scope for and yet the court held that the sexual intercourse was consensual and that compensation was good enough. This contrasted sharply with Naval’s case, where a medical student raped an eight year old girl and was sentenced to seven years imprisonment and a ﬁ ne of Rs. 25,000. The Court held that severe punishment should be awarded to those who sexually assault female children. Guidelines were laid down by the Supreme Court in respect of assistance to rape victims. In the Delhi Domestic Working Women’s Forum, the Court suggested that, from the police station to court, the same person ought to legally represent the woman. Legal assistance must be given readily. Anonymity must be maintained in rape trials. Financial compensation ought to be given. In Gurmeet Singh’s case, the Court held that sexual molestation matters must be handled with utmost sensitivity, to see that the victim is not humiliated. The trial should be held in-camera. Cases of sexual assault should be tried by lady judges. The victim’s identity ought not to be disclosed. From Rattinam’s case onwards, the courts began awarding compensation to the victims of rape including interim compensation. In the nun’s rape case, the state government was directed to pay Rs. 2.5 lakh to each of the rape victims and Rs. one lakh to the sisters who were assaulted and maidservants who were manhandled; in Subhra’s case, Rs. 1,000 per month was directed to be paid to a rape victim as interim compensation; in Narayanan’s case, a woman, travelling in the ladies’ compartment, was raped and killed. The railways were held vicariously liable and a direction was made to pay Rs. 2 lakh as compensation. In Rejina V/S R. a superior court, in England, held that a husband could be convicted of rape or attempted rape of his wife where she has withdrawn her consent to sexual intercourse. It is about time that a similar decision is now made by the Supreme Court. Indian men believe that if they are married they can subject their wives to sexual intercourse without their consent. The sooner this notion is got rid of the better. On Section 354 IPC Rupani’s case remains the leading decision on the scope and ambit of the term − “outraging the modesty of a woman.” Obscenity remained a vexed question with the Bandit Queen judgement improving the situation somewhat. In 1965 in Ranjit’s case, Lady Chatterley’s Lover was banned as obscene by the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |249 CHAPTER ELEVEN government and this was upheld by the Supreme Court. But fi ve years later, in the Chandrakant and Abhas cases, a change in the attitude was discernible and the difference, between sex and obscenity, was sought to be made. In the Bandit Queen’s case, the scenes of nudity and rape, and the use of expletives, were permitted as they were not intended to arouse “lascivious” thoughts but revulsion. On the whole, however, judge law-making remains quite puritanical. The Sexual Assault Draft Bill, 1993, has been submitted by the National Commission on Women and has been included in this volume. The Bill seeks to consolidate the various provisions relating to rape, assault and so on, as well as the sexual abuse of children. The defi nition of rape is sought to be broadened so as not to be restricted to the fact of penetration. Marital rape is also sought to be included. Other forms of violence against women: In Sammoon’s case the court held that a man who deceitfully causes the woman to believe that she is lawfully married to him, and on that basis to have sexual intercourse, can be punished even for an offence of rape; in Madhukar’s case, the Supreme Court held that even a woman of “easy virtue” is entitled to privacy and is equally entitled to the protection of law and her evidence cannot be disregarded; in Arvinder’s case, the Supreme Court directed compensation to be paid to a woman who was illegally detained and subjected to torture. Women at work covering the Maternity Benefit Act, 1961; the Factories Act, 1948; the Equal Remuneration Act, 1976; the Plantation Labour Act, 1951; the Mines Act, 1952; and the Beedi and Cigar Workers Act, 1966: In Audrey’s case, the Supreme Court directed that equal remuneration, for male and female stenographers performing the same work or work of the same nature, be paid. But till date, the notion of comparable work has not yet been fully accepted. The legal approach appears to be one based on the work being exactly the same. Thus if the work is different, but all the other relevant factors taken together make the work similar in law, the courts have permitted discrimination to continue. In the Irene Fernandes case, for the fi rst time, relevant considerations were set out as skill, effort and responsibility. But these principles have yet to be developed. The majority of the beedi workers are women; the Mangalore case being the leading case on the Beedi and Cigar Workers Act, 1966, it has been reproduced herein. The leading judgement, in this section, is Vishakha’s case where, in the absence of statutory law, the Supreme Court laid down guidelines and norms in respect of sexual harassment which were directed to be observed at all work places until legislation is enacted. One of the rare instances, when an offi cer was removed from service for sexually harassing a subordinate woman employee, led the Supreme Court to observe that those, who indulge in sexual harassment, should not be treated with sympathy and physical contact was not necessary to establish sexual harassment. Shehnaz Hussain was sexually harassed by her boss and, since she did not respond favourably, her services were terminated. The labour court, as well as the High Court, concluded that she was victimised and directed that she be taken back on the job with full service benefi ts. Prostitution: The leading judgement is an unreported one from Bombay where, on the orders of the High Court, 400 prostitutes were arrested. The follow-up thereafter was truly shameful. They were kept in conditions worse than prisons, huddled together in rooms with overfl owing toilets.

|250 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WOMEN

The food given to them was awful. They were tested for sexually transmitted diseases and particularly for the HIV virus. The results were disclosed and the girls ostracised. Forty percent of those arrested were minors. Those, who were pregnant and sought an abortion, were taken to a hospital after a negligent delay, as a result of which, in some cases, abortions were not possible. Then they were forcibly deported against their will to Nepal and other places where they were tested again for the HIV virus. The state government budget for the rehabilitation of these women was Rs. 500 per month per woman! These mistakes should never be repeated. Firstly, the rehabilitation facilities for the prostitutes should be put in place and only then should the “rescue” be attempted. Secondly, the issue of prostitution cannot be resolved by such “rescue measures” unless the whole issue is understood and the commitment − to genuinely care for and rehabilitate prostitutes who seek to leave the profession − exists. The state budget, of Rs. 500 per month per woman, indicates the level of state concern. Forced deportations are against the Fundamental Rights guaranteed under Article 19(1)(d). Over all, the judgement shows that society is not willing to address the problem seriously and is interested only in cosmetic remedies. What is, therefore, needed is a charter of rights for sex workers so as to insulate them from forced deportations and compulsory testing and to ensure that they be treated with dignity so that rehabilitation is truly meaningful. The prostitution per se is not an offence though the running of a brothel is and soliciting in a public place is punishable. Kalyani’s case is on the proposition that no person can be kept in a protective home unless the law permits such detention. The adult prostitutes, arrested on the orders of the High Court in the Bombay case, should not have been kept in custody as they had not committed an offence. Though in Vishal Jeet’s case the Supreme Court held that severe and speedy action should be taken against pimps and brokers and brothel keepers, nowhere in the country have such vermin been prosecuted. It is always the women who bear the brunt of the perverse legal system. First they are trafﬁ cked in. Then, they are made to become sex workers. Then, they are required to service the policemen who will, in addition, take bribes from the brothel keeper. Then, they will be subjected to ultra moralistic “rescue measures” where they will be brutalised once again, as in the Bombay case. Perhaps the prostitutes were right in saying, in the Bombay case, that if the State was unable to look after them they were perhaps better off in the brothel. The decision of the Supreme Court, in Baxi’s case, is important because guidelines have been laid down to protect human rights in protective homes throughout the country. Such homes today are worse than most prisons are. Miscellaneous: The leading decision is of AIDWA where the Supreme Court banned female sterilisation with the drug quinacrine. With this the guinea pig testing of women, which goes on throughout the country with pharmaceutical companies and multinationals being the biggest culprits, received its ﬁ rst major setback. In Geeta Hariharan’s case, the Supreme Court gave rights of natural guardianship to mothers. Though the decision improves upon the earlier situation, which treated only the father as the natural guardian during his life time, the Court could have gone much further and granted inherent joint guardianship to both parents.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |251 CHAPTER ELEVEN

A recent retrograde decision of the Supreme Court, in the case of Mr X vs Hospitals Z, has robbed HIV positive patients of the right to get married. A number of fraudulent marriage bureau had come up in Bombay giving fake marriage certiﬁ cates. In Majlis Manch, the High Court directed this state government to close down these bureau.

–Women and the Law II 2000

|252 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NO COUNTRY BURNS ITS WOMEN

ow does one write on law when the law hold so much theoretical promise and yet has such limited practical effi cacy? Judges, who in their narrow confi nes, try to do their best are Hworthy of praise and emulation. But these judges have only themselves to blame for failing to take the law to its logical conclusion in speedy and effective implementation. India is one country where the difference between appearance and reality is like night and day. In the land of Gandhi and non-violence, the most horrifi c crimes are perpetrated against women. No country burns its women for dowry and kills female foetuses, like India does. India has the fi nest and most extensive system of labour law. Yet no country keeps such a large part of the female labouring population in servitude and bondage. The Constitution of India, one of the fi nest in the world, prohibits discrimination on the ground of gender and guarantees equality. Yet women are routinely discriminated at work forming a miniscule and even decreasing part of organised labour. Religion is said to foster respect for women but the country is full of religious fanatics who make use of personal laws to debase and dominate. And the female form, by religion rendered inviolate, is subjected to guinea pig testing for the most dangerous drugs. Laxmi is the goddess of wealth but all property lies in the hands of men. The condition of a nation’s jails is the the true test of a country’s worth in terms of progress and refi nement. Now perhaps one should say that the sorry state of women in India is the truest indication of its decay and degeneration. The plight of women in India is well worth documenting. The plight of the sex worker is perhaps the sharpest indicator. Driven by penury to sell their bodies, and notwithstanding that prostitution is not per se an offence, sex workers have been rounded up like cattle, kept in prison-like conditions, forcibly tested for HIV, publicly humiliated and deported. The State budget for these unfortunate women is meagre 20 rupees a day which includes clothes, food, medicines, rehabilitation costs, counselling and recreation. In the rural areas, where children and lactating mothers die of starvation, the State budget for nutrition allows for a rupee a day. Women naturally become the fi rst victims of hunger and ill health. What signifi cance do our laws and judgements have? They make fi ne reading but do they touch the poor? The last 25 years have witnessed a transformation in the law. Progressive Statutes − such as the Equal Remuneration Act, the Indecent Representation of Women Act, the Sati Abolition Act and the Dowry Prohibition Act − have been enacted. Family courts and the Women’s commission have also been established. Judicial decisions have generally veered in favour of women despite the three seminal decisions

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |253 CHAPTER ELEVEN that went awry—Mathura, Manjushri Sarda and Bhanwari Devi. In a case where the decision was a shade too fi ne for the government, as in Shah Bano’s case, Parliament bent over backwards to enact the Muslim Women’s Act. In a way, this furthered the discriminatory aspects of Personal Law. Judicial reforms require many things. The transformation of Statutes, the assertion of its spirit and intent through judgements, the recruitment of women judges and care taken with the minutest details regarding enforcement. India did reasonably well in the fi rst part and failed miserably in the second. Women and the Constitution: The forensic struggle, against discrimination in matters of employment, began in 1979 in Muthamma’s case with the Supreme Court striking down a provision requiring women government employees to take permission from the government before getting married. Also, married women could no longer be denies employment. But the start was a hesitant one and there are very few judgements dealing with women in service. Meerza’s case, relating to the retirement age of air hostesses, received partial and half-hearted treatment. Equal pay for equal work was established as a legal principle but was rarely practiced. Women employees, prevented from working at night by certain provisions of the Factories Act, were ultimately permitted to work in certain states. Declarations, regarding information relating to personal matters from women seeking employment, were struck down. On the whole, however, women continue to be routinely discriminated against in public employment; the percentage of employed women still remains very low; and women generally are given jobs of lesser importance. Substantial gains were made by courts upholding preferential rights for women. Reserva- tions for women − in Panchayats, municipal elections, in education and other institutions − were upheld. Despite the initiation of the long overdue call for a uniform civil code by Judiciary in Sarla Mudgal’s and Jorden’s case, the Supreme Court appeared hesitant to strike down personal laws even though they clearly collided with constitutional provisions. From the decision of the Bombay High Court in 1952, in Narasu Appa Mali’s case to the recent decision of the Supreme Court in the Ahmedabad Women Action Group’s case, Judges have upheld, on one pretext or another, the proposition that changes in personal law came under the purview of the legislature. Thus obnoxious personal laws remained impervious to a constitutional challenge and merciless anti-women practices continued with judicial sanction. Fear, and not jurisdiction, was the heart of the issue and the courts were much too scared to touch personal laws. Indirect challenges were however mounted, as in Shah Banu’s case, where it was held that a Muslim woman is justifi ed in wanting to live apart from her husband and can claim maintenance if a second wife is taken. Marriage: Bigamy and child marriage show the hiatus between law and reality. While Stat- utes proscribed bigamy and child marriage, there were hardly any court decisions to the effect. This legislative initiative remained a theoretical clause. The same holds true for cohabitees. Gokalchand’s case created a presumption of marriage if there was continuous cohabitation as husband and wife. But apart from this, there was no progress and there was nothing further on cohabitee rights in the case of matrimonial property. On the matrimonial home issue, progress came tangentially in the fi nding that a wife is entitled

|254 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WOMEN to insist that she not be exposed to the unpleasantness of her husband’s relatives and therefore the issue of the matrimonial home has to be decided amicably between the spouses. Divorce and other matrimonial problems: Dating from the Chilikiri case in 1954, the Courts have tended to lean in favour of upholding marriages when allegations of infi delity are made against the wife. Subsequent intercourse means condoning infi delity. Courts have also generally leaned away from DNA testing (Mathew’s case) and have generally not encouraged compulsory blood testing (Gautam Kundu’s case). Likewise TB, epilepsy, ”bad” character of the wife, mental illness and weakness of intellect cannot be used as pretext clauses to dissolve marriages. The declaration in Devi’s case settled the issue that all children are legitimate for all practical purposes. Divorce, on the grounds of cruelty, was made favourable for women by courts defi ning cruelty broadly to include anything which caused a reasonable apprehension that it would be harmful to live with the husband. Intention to cause harm was not a necessary ingredient. Inordinate sexual demands, cruelty of in-laws, husband’s infi delity, mental cruelty, impotence, refusal to have sex, a unilateral decision to have a vasectomy and dowry demands were all seen as constituting cruelty. And though irretrievable breakdown of marriage was not a ground in the Statutes, in Bhagat’s case extraordinary jurisdiction was invoked by the Supreme Court to dissolve the marriage on this very ground. While judges made it somewhat easier to get rid of a husband – and correctly so – they made it correspondingly more diffi cult for the husbands to get rid of their wives – again, correctly so. A wife refusing to cohabit with her husband and refusing to leave her job were no grounds for divorce and did not constitute cruelty. Judges were generally reluctant to allow divorce on the ground of adultery of the wife and a stray incident of adultery was not enough to justify divorce. In Meena’s case, desertion by a wife was held justifi ed on the basis of just cause. When the husband made it diffi cult for the wife to stay, desertion was justifi ed. In Prabhakar’s case, the Bombay High Court held that the concept cannot be static and must take note of reforms and changes in society. After Rohini’s case, constructive desertion as a legal concept came to be well established. Maintenance: Courts leaned heavily in favour of maintenance including interim maintenance and even a ”guilty” wife, accused of a matrimonial offence, cannot be denied this. Maintenance is to be paid even when the fact of marriage is itself disputed. It must take into consideration all factors including food, clothing and shelter (Punni Devi’s case) and must be paid to the wife even if the wife’s relatives are wealthy. It must be pegged at such a level that the wife can live in reasonable comfort considering her status and mode of life and must allow for her to contest her matrimonial cases (Jasbir’s case). The restriction, found in the Indian Divorce Act limiting alimony to one-fi fth of the income of the husband, was frowned upon in several cases. Main- tenance was to take into consideration children including illegitimate children (Sumitra Devi’s case). Maintenance can also be claimed by step mothers (Kirtikant’s case). Despite these progressive decisions, the economic partnership theory was never considered. As a result, the wife’s economic contribution to the matrimonial house was ignored. Here too, while the law developed, the ground reality remained unchanged and millions of women were denied

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |255 CHAPTER ELEVEN maintenance or received paltry amounts despite court orders. These were routinely violated as there exists no effective system for enforcement despite Surinder Singh’s case where the Su- preme Court held that sending the husband to jail, for non-payment of maintenance, was in addition to, and not in lieu of, payment. Proving the husband’s income is extremely diffi cult and the limit of Rs. 500 under Section 125 of the CrPC is ridiculous in this day and age. Yamunabai’s case caused tremendous problems because now only those who could prove that they were legally married could claim maintenance. The cohabitee was thus excluded. Guardianship and custody: The Statutes make the father the natural guardian. Here again, a tangential attack was mounted against personal laws by courts holding that irrespective of the natural guardian, the welfare of the minor should be paramount. This made inroads into personal laws in favour of women. Chandralekha’s case established the proposition that custody was to be decided on the sole criterion of the interest and welfare of the minor. In Dhanavanti’s case it was held that custody was not to be denied to a woman merely because the husband was fi nancially sound. The Statute, enabling adoption, exists only for Hindus and does not cover Christian and Muslims. These were enacted keeping in mind destitute, orphaned and abandoned children with an emphasis on the Hindus’ need for a son from the inheritance and the performance of funeral rites. These Statutes are discriminatory when it comes to women. As far as inter-country adoptions are concerned, guidelines have been laid down in the Laxmikant Pandey case which, have served, to some extent, to curtail the trafi cking of children in foreign adoptions. Though the history of women and the law has been a mixed bag, the brighter side shows that an increasing number of women, from all classes, are now beginning to fi ght for their rights. A number of them have effectively begun using the law.

–Women and the Law I 1999

|256 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO INFORMATION TWELVE CHAPTER

1. RTI : Miles to Go 2. To Know is to Be Courtesy: Parivartan

The RTI Act is being enforced in a manner that gives rise to grave concern. The bureaucracy appears to be staging a counter attack and using all kinds of ingenious methods to evade providing information... The lack of Judicial training has resulted in autocratic functioning with commissioners ... dismissing applications without hearing the applicants.

|258 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RTI : MILES TO GO

he Right to Information Act, 2005, which came into force on June 21, 2005, was to provide for and promote “transparency and accountability” in the working of every public authority. TThe Preamble sets out that transparency of information is vital to the functioning of every democracy and in a way contain corruption and hold governments accountable. It recognises that the revelation of information is likely to confl ict with the effi cient operations of government and the optimum use of limited resources and also the preservation of confi dentiality of sensitive information. Notwithstanding this confl ict, the Statute has been brought into force in order to preserve “the paramountcy of the democratic ideal.” Under the Act, the Central Information Commission (CIC) and the State Information Commissions (SICs) have been constituted. They can be a maximum of 10 commissioners in the commissions. Every public authority is required, within 100 days of the enactment of this Statute to designate central public information offi cers (CPIOs) and State Public Information Offi cers (SPIOs). It is to these offi cers that a request has to be made for information. The request can be made in writing or by email in any of the offi cial languages and in case the request cannot be made in writing the offi cer is required to assist the person making the request orally. As expeditiously as possible but in any case within 30 days, the offi cer must provide the information or reject the request specifying the reasons. In the case of life or liberty of a person, the time limit is 48 hours. If the decision is not given within the specifi ed period it is deemed to have been refused. In the case of a rejection, the offi cer is required to communicate the particulars of the appellate authority and the time period for the appeal. Section 8 sets out the information which is exempted from disclosure. A point of concern was the wrong application of Section 8 (e) which reads as under: “Information available to a person in his fi duciary relationship, unless the competent authority is satisfi ed that the larger public interest warrants the disclosure of such information.” Almost everything under the Sun is sought to be brought under this Section. In the interaction with the CIC, Delhi, it was clear that he was equating a fi duciary relationship with a concept of privacy and confi dentiality. In the case of a person who tells a government offi cials that he is providing some information confi dentially, the CIC was of the opinion that such information cannot be disclosed. If he is right then all information where it is alleged that the offi cer or the persons providing the information sought for or promised confi dentiality, would fall outside the purview of the Act. Nothing could be further from the truth. The Act is precisely a statutory invasion in the public interest into areas traditionally considered private or confi dential. The Preamble to the Act makes this amply clear:

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |259 CHAPTER TWELVE

“And whereas revelation of information in actual practice is likely to confl ict with other public interests including…the preservation of confi dentiality of sensitive information.” That the Central Information Commissioner, Mr Wahajat Habibullah, was hopelessly confused on this issue is obvious from the discussion that took place in the public hearing with respect to cases where the CIC had upheld the order refusing to divulge information on the basis that Section 8 (e) was applicable. The fi rst was a case where an offi cer was not promoted because he was “unfi t.” Subsequently, he was promoted. An application was made seeking information including the medical records relating to this unfi t status. The application was rejected. Though it is possible to say that the medical records of an employee is information governed by the fi duciary clause. Information could certainly be provided as to whether or not promotion was earlier denied on the ground that the employee was unfi t. The next batch of cases related to corruption cases including matters relating to disproportionate assets, vigilance cases and fraud cases where details of income tax returns and other information was sought for. Resort to the fi duciary clause in such cases was laughable. A fi duciary relationship is one where a party stands in a relationship of trust to another party and is generally obliged to protect the interest of the other party. Apart from the fact that the government is not obliged to protect corrupt offi cers, it is doubtful whether the mere request of the party providing information to government that the records be kept confi dential, can ever give rise to a fi duciary relationship. It is equally doubtful whether any offi cer can assure a party that records statutorily required to be produce on demand by government, will be kept confi dential. Even if such an assurance has been given, the Act will override the assurance. The next category of cases related to examinations where students had asked for details relating to the “cut-off marks,” the marks obtained in the examinations and in particular subjects and so on. Though it may be possible to hold that the name of the examiner may not be disclosed, it is certainly incomprehensible why a large number of applications asking for the above mentioned innocuous details should fail on the ground of the fi duciary relationship. Only time will tell whether this Statute, like so many social Statutes enacted in the past, will also go the same way and be mired in bureaucracy, red tape and delay or whether the will of the public will prevail so that nothing stands in its way. Every public authority is required to designate an offi cer senior to the public information offi cers (PIOs) and appeals from the orders of the PIOs are to be fi led and heard by such senior offi c- ers. The time period from fi ling the appeal is 30 days but this can be condoned on the showing of “suffi cient cause” for the delay in fi ling the appeal. A second appeal within 90 days can be made before the commissions. The commissions also have the power to directly enquire into any complaint. Penalties At a public hearing organised by Parivartan, a leading organisation on the Right to Information, at Delhi on September 25, 2006 participants were particularly aggrieved by the fact that despite order after order the CIC was not imposing penalties on the defaulting offi cers. Section 20 (1) of the Act is as under:

|260 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO INFORMATION

“Where the central/state information commission at the time of deciding any complaint or appeal is of the opinion that the central/state public information offi cer has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time limit: malafi dely denied the request for information, knowingly given incorrect, incomplete or misleading information, destroyed information which was the subject of the request, obstructed in any manner in furnishing the information, it shall impose a penalty of Rs 250 each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed Rs 25,000.” The general consensus amongst the participants appeared to be that the commissions were too lenient in the imposition of penalties and, as a result, were creating an impression amongst offi cials that they could fl out the law and get away with it. Offi cials were not turning up for hearings. Letters and notices of the commissions were getting lost in the bureaucratic labyrinth of the government offi cers. In some cases, the commissions had not imposed penalties because it was a fi rst time default. This was impermissible because the section mandates the imposition of a penalty and no such exception has been made for a fi rst time default. Participants in the meeting quoting from commission’s orders pointed out that penalties were not imposed even in cases where the commission had concluded that the case was indeed one for the imposition of a penalty. Arvind Kejriwal, the head of Parivartan, pointed out that out of 1,500 cases disposed off, there were only three instances where penalties were imposed. Apparently, even in those cases the penalties were subsequently sought to be withdrawn. The Central Information Commissioner Wahajat Habibullah, during the proceedings, said that it was his view that while imposing penalties or withdrawing penalties imposed it was not necessary to give notice to the complainant. This appears to be a position in law ill thought of. The commissioner then mentioned that penalties can only be imposed under Section 20 of the Act to the public information offi cers, and where no such offi cer had been appointed, no penalty could be imposed. This is a narrow technical reading of a section without reference to the Act as a whole. Section 18 refers to a recourse to a senior offi cer in a situation where the public information offi cer has not been appointed. The duty is cast on the public authority under Section 5 to designate the PIOs. Section 20, therefore, ought to be read as empowering the commissions to impose a penalty either on the PIOs or the senior offi cers specifi ed where the PIOs have not been appointed. By such an interpretation the Statute will be given its full meaning and defaulting offi cers can be punished. While the orders of the commission are put up on the website, it was rather strange that the orders setting aside the penalties have not been put up on the website. This together with a fact that the complainants are not given notice of the penalty proceedings gives rise to grave doubts in the minds of the public as to the fairness of the proceedings. The SIC, Punjab, at this stage mentioned that apart from the imposition of the penalties the issuing of strictures against offi cers is another way of punishing erring offi cials. The mood of the participants in the public hearing could be summed up in the words of one of the participants “the commissioner has referred to teething problems. However, if the law is not enforced it will lose its teeth!”

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |261 CHAPTER TWELVE

Natural justice and a personal hearing The CIC was also of the view that it was not necessary to hear the parties personally. He said the hearing could be given either personally or in writing. This stand was contrary to the Central Information Commission (Appeal Procedure) Rules, 2005 which is as under : (2) The appellant or the complainant, as the case may be, may at his discretion at the time of hearing of the appeal or complaint by the Commission be present in person or through his duly authorised representative or may opt not to be present. On this issue, there is widespread indignation and allegations were leveled against the commission that they were dealing with matters without doing justice to the parties. The statement of the CIC to the effect that this procedure was followed in order to push up the rate of disposal was countered by Mr Arvind Keijriwal by saying that what was required was that justice be done. The table given below shows that in a substantial number of cases the applicants were not called at all for the hearing of the case. This is a gross miscarriage of justice. This is particularly true in the case of Commissioner MM Ansari who appears not to need anyone for the disposal of a case. One wonders what kind of justice is being done! Equally worrying is the fact that cases are being disposed off by the commissions without given a copy of the reply fi led by the offi cer concerned to the applicant. The applicant suddenly notices that his case is shown as rejected on the website. Table given below shows the case disposal summary. Once again Commissioner MM Ansari appears to be conducting matters without any care for the parties before him. It is possible that a lack of judicial training results in individual commissioner’s functioning in a highly erratic fashion. This manner of conducting cases without informing the applicants of the stand of the offi cials and without even telling them of the dates when the cases are likely to come up for hearing indicates a very arbitrary approach. Participants in the seminar repeatedly suggested that the entire progress of a case ought to be up on the website and an applicant ought to be able to know from the website as to when the case was likely to be heard and the stand of the opposite parties. Out of 1500 cases dealt with by the CIC, 781 cases are posted on the website. 359 of these 781 cases are ex-parte decisions. The remaining 719 cases are not to be found on the website. Ap- plicants therefore, understandably, have no idea as to the status of their cases. The closure of cases without notice to the parties can have several adverse effects. The obvious worst case scenario is where the application is rejected without notice to the applicant and without a hearing. But even in cases where, as the CIC indicated during the public hearing, an order is made directing the authority to provide certain information, this order ostensibly in favour of the applicant may never be obeyed. If the case is closed merely on such an order being passed the applicant will be forced to repeat the entire procedure all over again. The appropriate thing to do, when orders are passed by the CIC directing the providing of information, is to keep the case pending for a compliance report to be fi led by the authority. This is the procedure followed by the State Information Commission, Punjab as stated by Mr Rajan Kashyap, the chief information commissioner, Punjab. What if the person making the application is too poor to repeatedly travel to the commission?

|262 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO INFORMATION

What if the person is too poor to engage a lawyer? The answer is obvious. Legal aid must be provided to such persons by the state and central legal services authorities. Apparently this is not being done anywhere. A study of the second appeals before the CIC shows that out of a total of 781 cases decided, 455 cases resulted in rejection of the appeals. This is an overall rejection rate of 57 percent from the entire CIC consisting of fi ve commissioners. If one looks at the record of commissioner Ansari, out of 256 cases decided by him, 206 cases were rejected which is a rejection rate of 80 percent. Such an arbitrary manner of functioning is unacceptable. Commissioner Ansari needs to be trained in quasi-judicial functioning. The scheme of the Act shows that the commissions and the PIOs have to function in a quasi- judicial manner. Section 18 invests the commissions with certain powers of the code of civil procedure. The entire frame of the Act requires the commissions and offi cers to adjudicate disputes between the public and the authorities. Undoubtedly, the principles of natural justice apply. These principles apply whether or not specifi c reference is made to them in the Statute. A study of the second appeals fi led before the CIC as on the September 8, 2006 shows that 3,059 appeals were received. Out of these 1,531 were dealt with and the number of cases pending were 1,528. On an average, the CIC received 2,000 cases per month. Maharashtra state has 10,000 appeals fi led. This has caused concern relating to the lengthening backlog of cases. With the current rate of disposal, it is apprehended that as time passes it will take longer and longer for cases to be completed. Delhi, for example, has a waiting period of seven months. The answer to this lies not in refusing to inform litigants of the stage of their case and certainly not in refusing to hear them, but in the appointment of more offi cers and commissioners. Delhi, for example, has fi ve commissioners though the Act provides for a maximum of ten. Education and training Section 26 of the Act requires the government to develop and organise educational programmes so that the public and disadvantaged communities can learn how to use the Act. public authorities are also required to participate in such programmes and undertaken such programmes. The government is required to “promote timely and effective dissemination of accurate information.” The PIOs and public authorities are required to be trained. Nothing of the kind is taking place and, as a result, offi cers are developing a hostile siege mentality. Sub-judice An interesting point made by the commissioners was that merely because a matter was sub- judice is no reason for the commission to disallow disclosure under Section 8 of the Act. It is hoped that the commissions throughout the country will take this view. Infrastructure Commissioner OP Kejariwal said that the infrastructure in some of the commissions was quite pathetic. In many places accommodation was not provided, staff were not appointed, seats for the litigants were not available and the staff was not trained, as a result of which they were insensitive and secretive. He said the great sensitivity was called for. In the case when an ap-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |263 CHAPTER TWELVE plicant called a public information offi cer a “thief” and a “liar” the commissioner remarked that even in such circumstances one must always remember that the voice of the applicant is one of “neglect and frustration.” Conclusion The public hearing at Delhi showed that the Right to Information Act, 2005 was being enforced in a manner that gives rise to grave concern. The bureaucracy in general appears to be staging a counter attack and using all kinds of ingenious methods to evade providing information. The standards of the public information offi cers and commissioners is most uneven with offi cers and commissioners holding widely divergent and sometimes wholly irrational views. The lack of judicial training has resulted in autocratic functioning with commissioners not giving notice to the applicants and dismissing applications without hearing the applicant. The desire to push up the rate of disposal has resulted in increased injustice. There is anger and resentment among members of the public who perceive that an Act brought into force due to public opinion to stem the cancer of corruption of society, is being sabotaged by offi cials. On the other hand, there are some very fi ne offi cers who are using the Statute in an innovative way, always aware of the fact that the anger and resentment they can see is the sign of “neglect and frustration” over many years. These commissioners and public information offi cers strive despite the opposition that they face in the bureaucracy, to give the Statute full force.

|264 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TO KNOW IS TO BE

itting in on a meeting − organised for the public, to interact with the chief information commissioner, appointed under the Right to Information Act − one could not help but no- Stice the robustness with which members of the public took on the commissioner. It almost seemed as if the Indian middle class (a creamy layer, albeit) had come of age. The commissioners present had a fresh approach admitting to mistakes at times and pleading with the public to be patient since the Statute was relatively new. But the participants did not appear to have much patience and there were, at times, angry exchanges between the citizens and the commissioners. The underlying anger and frustration of the public at large is an important development to take note of. For years, citizens have been kept totally in the dark and the Right to Information, though an integral part of Article 19(1)(a), i.e., the freedom of speech and expression, has remained very often a formal right. What makes the RTI so special is that it has the backing of the public, which is now trying to make use of the Statute in myriad ways. The interpretation and implementation of the Statute will, to a considerable extent, be either enhanced or obstructed by the attitude judges take towards it. There is no doubt that a large part of the legal system, and its operation, lies beyond the gaze of public scrutiny even though it has had a tremendous impact on the lives of ordinary people. It is true that judges are particularly vulnerable to scurrilous attacks, but it is equally true that the system has become rather opaque in its functioning. The rumours of misconduct are now so widespread and rampant that there is clearly need for introspection. The initial reactions of the Judiciary, in claiming immunity from the Statute, did not go down well with the public. They perceive the legal system as being pre-eminently of the kind where transparency ought to come ﬁ rst and accountability thereafter. Information has always been power. The babus in India, like our colonial masters, have always used control over information to dominate citizens. This, in turn, has led to unbridled corruption. The RTI, is therefore, a powerful tool for checking corruption. Its use in the initial stages, not only by the middle classes but also by grassroot organisations, has achieved remarkable success. This is what the bureaucracy really fears. Make no mistake. If the Right to Information Act is used well, it could be a revolutionary instrument in the hands of the working people.

–Editorial, Combat Law March-April 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |265

COMMUNALISM THIRTEEN

1. Communalism and the Indian Legal CHAPTER System 2. The Structure of the Nation-State under Threat 3. Communal Violence Bill: More Teeth to Police, not the Victims 4. Godhra 5. Rewards for Rioting Courtesy: Internet

The Judiciary itself has become a victim of the dominant ideology of Fascism. This can be noticed from the trend in the decisions coming from the courts and almost complete inability of the Judiciary to stand up to communal parties and the violence and discrimination they unleash.

|268 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM AND THE INDIAN LEGAL SYSTEM

n a workshop on communalism and the law, the participants began with their recollection of what happened in certain incidents in Uttar Pradesh. They described the happenings in the IHissar incident. There was a long discussion on the Gujarat riots, which focused on how the entire legal system had collapsed. Participants spoke of how the police had sabotaged the prosecutions right from the beginning − by either not registering FIRs or by recording them wrongly. The public prosecutors were also communal elements who assisted the accused persons. False counter cases, and also different forms of coercion, were used by the accused persons to threaten the victims and their witnesses and to force them to withdraw the prosecutions. Participants from Bombay said that, after the Bombay massacres in 1992, the legal system had collapsed. There was a general feeling that the legal system was an engine of oppression and that the entire Judiciary needed to be reformed if public center law and the legal system was to operate in the country. Analysing the various decisions of the Supreme Court since Independence, 1994 appears to be a dividing line between decisions that speak of secularism and the post-1994 decisions which appear to dilute the principles of the secular state. A number of decisions were cited starting with Babu Rao Patel’s case where the Supreme Court ordered the prosecution of a person who wrote about Muslims in a communal way. In 1986, in Emmanuel case, the Supreme Court exonerated students who were Jehova witnesses and stood up respectfully when the National Anthem was being played but refused to sing because it was against their religious beliefs to have a national anthem. The Court said their actions were protected by the Freedom of Religion clause. 1994 was a watershed, because in this year, important decisions − that both upheld the principle of secularism as well as decisions that undermined this principle − were proclaimed by the Supreme Court. In the two Babri Masjid cases, the Supreme Court was naive in not passing orders for the protection of the mosque and in relying upon an undertaking given by the Chief Minister Kalyan Singh. The latter had no intention of keeping his assurances and the state government permitted the mosque to be demolished. When the matter came up the Supreme Court had a very weak response and, for a very serious crime, punished Kalyan Singh with a token imprisonment of one day till the rising of the Court and a ﬁ ne of Rs. 2000! 1994 also saw the historic decision of the Supreme Court in SR Bommai’s case where an eleven- Judge Bench of the Supreme Court laid down the principle that “the State has no religion.” It “stands aloof from religion.” However, participants wanted to know why State dignitaries − like the President, Prime Minister

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |269 CHAPTER THIRTEEN and offi cials − use their offi cial cars and security personnel when they privately visit religious places? How do offi cials conduct pooja and other religious ceremonies in public places such as police stations and railway stations? How are the images of gods displayed in public buildings? The practices of the State offi cials are directly contrary to the decision of the Supreme Court to the effect that the State must stand aloof from religion. Participants enquired if a public interest petition could be done to prevent religious objects from being displayed on public property such as government buildings and religious ceremonies being performed in public spaces owned by the government. In 1996, there were two decisions of the Supreme Court, both by Benches presided over by the then Chief Justice, Mr JS Verma. Both these cases related to the call by the Shiv Sena for its members to vote for their candidates because the party was campaigning for the establishment of a Hindu nation. This was the meaning of the electoral plank of Hindutva. In the petition, relating to Bal Thakeray, the Supreme Court upheld the disqualifi cation of the candidate, Suresh Pradhu. However, in the petition relating to Manohar Joshi, the Supreme Court did an amazing about-turn and set aside the decision of Justice Hosbet Suresh who had held that anyone, who campaigned on such a plank of Hindutva, was bound to be disqualifi ed. The Supreme Court held that there was nothing wrong with the campaign on the basis of “Hindutva.” Subsequently the contradiction − between these two decisions − were noticed by a three-judge Bench and the issue was referred for a decision by a larger Bench. In 2005, in the case relating to migrants illegally entering Assam from Bangladesh, the Supreme Court used exceptionally harsh language while dealing with poor Muslims entering India mainly for economic reasons. The Supreme Court categorised the migration as akin to an enemy invasion designed to undermine the unity and integrity of India. Two other decisions of 2005 by the Supreme Court also merit attention from the point of view of studying the manner in which the Supreme Court is today looking at the issue of secularism. The fi rst is the cow slaughter case where the Supreme Court set aside its earlier rulings and held that a Gujarat law banning cow slaughter was valid thereby affecting the livelihoods of thousands of Muslim butchers. The second decision was the one relating to the long-standing practice of the sale of eggs in public places. The Supreme Court upheld the order of the state government prohibiting such sale in certain places on the grounds that the sale of eggs offended Hindu sentiments! The 2005 decision of the Supreme Court in Zahira Sheikh case − where the trial was transferred to Bombay from Ahmedabad − was a landmark decision where at least two judges of the Su- preme Court stood fi rm against the communal onslaught against Muslims in Gujarat. The discussion then turned to the new Bill on communal violence prepared by the central government, which had received the support of a prominent NGO − Communalism Combat. After discussion it was generally agreed that the Bill was utterly unsatisfactory for the following, among other, reasons. First of all, the new law will only come into force in extreme situations where the unity and integrity of the nation is under threat. Communal massacres − such as the Bombay Riots, Sikh Riots or the Gujarat Riots − which only affect particular states may not be severe enough for the law to be used. Secondly, the Bill requires a notifi cation − in respect of a com-

|270 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM munally disturbed area − for the law to apply to that area and also a notifi cation by the state government for the law to come into force in that state. Thirdly, a communal crime is nowhere defi ned and, since the Bill requires deaths to have occurred for the law to be enforced, crimes − such as rape, the insertion of objects, social ostracism and the like − do not qualify as communal crimes. The Bill provides for sanction by the state government as a prerequisite for the prosecution of police offi cers engaging in such crimes. This is an unwarranted clause because sanction is never given. There are no provisions for witness protection. The sections − relating to relief and rehabilitation − do not create any rights in favour of the victims. The central government has not allocated, in its fi nancial memorandum, even a single rupee for this purpose! For all these reasons, the participants decided to unequivocally reject the Government Bill. All the participants felt that a comprehensive Act was necessary because communalism was raising its ugly head in state after state. Participants, from Rajasthan, pointed out that criminal elements are roaming scot-free in spite of the grievous crime they have committed. This is because they have the support of the police and the administration. When FIRs are lodged, against communal elements, no action is taken. On the contrary, false cases are fi led against anti- communal and peace activists. For example, Bhanubati’s paintings were said to have offended the freedom of religion of the Bajarang Dal. She was arrested and, after the people protested, she was set free. The Bharat Mata Temple is the meeting place of all these nefarious elements. In Awadh there was a communal riot and many false cases were fi led against Muslims. A Muslim teacher was beaten up outside her school by RSS people and her brother committed suicide. Many false cases are being fi led against Muslims in Bhilwara in Udaipur district. Their property is being seized. The police are refusing to accept complaints by Christians. After Praveen Togadia distributed 1000 trishuls (tridents) and made hate speeches everywhere, the Arms Act was amended and trishuls were included as a weapon. In Gujarat, the communal preparations are going on. The police are not only communal but are also elitist and anti-Dalit. The Durga Vahini, promoted by the BJP and the Bajrang Dal, is training young women in the use of arms. In Lucknow, as in many parts of India, Muslims have been told to shift their slaughterhouses out of the cities. The Judiciary is also insisting on the shifting. There is rise of communalism in Uttar Pradesh. In Gorakhpur, lands, belonging to the Muslims, are sought to be taken over. In Luc- know in all the government offi ces, including the Central Secretariat, on Tuesdays and Thursdays prayer meetings are held and all persons are forced to contribute money. In Haryana Agricultural University, the Sangh Parivar dominates the mass communication department and hold classes to indoctrinate the young students. Participants from state after state, including surprisingly a Southern state in Karnataka, spoke of the increasing level of communal crimes and the total ineffectiveness of the Judiciary in enforcing the law.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |271 THE STRUCTURE OF THE NATION-STATE UNDER THREAT

hen the National Democratic Alliance, which governed at the Centre, was swept from power in the 2004 parliamentary election and the United Progressive Alliance was Wformed, many felt that the days of communal frenzy were over. But as time passed the anti-communal organisations realised that the communal build-up was as steady as before. No political party was really interested in opposing the fascist Hindutva forces. Secularism was only a shade of communalism. True, riots did not take place with the ferocity of the Gujarat riots of 2002 but the build-up, and the preparation for a fascist onslaught, was formidable. In the states, controlled by the Bharatiya Janata Party, communalism and communal violence hovered just below the level of naked violence. Hate speech, particularly in schools, spread the ideology of communalism everywhere. In state after state, discrimination against minorities, social and economic boycotts, residential segregation and downright denigration were the order of the day. It was as if, despite a self-avowed secular party coming to power, communalism was growing rapidly. The link − between the spread of Fascist ideology and the economic advancement of the upper middle classes – is not clear. But it is certain that they feed off each other. As globalisation makes the rich richer and the poor poorer, Hindutva ideology increases the spread of capitalist domination and brings, within its sphere of infl uence, sections of the population that suffer globalisation. One would have thought that, with basic survival becoming so diffi cult for over seventy percent of the population, issues, relating purely to religion, would fade in signifi cance. But this is not so. Despite hunger, unemployment and despair, these ideological issues tend to dominate the political landscape. Perhaps, it is the lack of a viable political alternative, but that is another story. As things stand today, hatred and venomous practices of discrimination against minorities operate at a heightened level, needing hardly any excuse for the onslaught of violence. That the Judiciary itself has become a victim of the dominant ideology of Fascism can be noticed from the trend in the decisions coming from the Apex Courts and the almost complete inability of the Judiciary to stand up to communal parties and the violence and discrimination they unleash. Almost all cases, relating to hate speech in the media, have been unsuccessful. The victims, of all communal riots, have remained without redressal. The Sikhs, who were massacred on the streets of Delhi in 1984, have repeatedly protested about the failure of the Criminal Justice Sys- tem to prosecute the assailants. So too the victims of the 1992 genocide of Muslims in Bombay and the 2002 killings in Gujarat. Some High Courts, within whose jurisdiction communal riots took place, remained silent while the violence and discrimination spread through the state.

|272 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM

Justice BN Srikrishna, then a judge of the Bombay High Court and heading a commission of enquiry that looked into the Bombay Riots, observed that the police force had become communal as an institution. He said then what everybody knows now – that the principal force, authorised by law to maintain order in society, is incapable of acting when communal crimes are committed because it is communal in orientation and identifi es with the majority view. In all the massacres, that have taken place, policemen have actively participated in riots, diluted cases against the accused persons and fi led false counter cases against minorities. It is this unfl inching support of the police for the Fascist forces that has contributed enormously to the growth of Fascism in India. It is probably the single most important factor contributing to the expansion of the armed wings of the fascist groups. They know that they cannot and will not be touched. The preparation for violent attacks on minorities − particularly Muslims and Christians and perhaps also Dalits and Tribals − is frightening. In Gujarat, prior and during the genocide, the production of bombs and other arms became a household industry. Gujarat was, in that sense, a grand laboratory for the perpetration of communal violence. It is said that these techniques and skills are being used in other states in preparation for similar acts of genocide. Through all this, the central and state governments are silent. The preparation − for communal violence − goes on undisturbed. The Fascist build-up carries on unchallenged. Signifi cant attacks, that take place from time to time, appear as separate and disjointed ventures. Nothing could be further from the truth. There is a complex and insidious network of communal organisations spanning the country. Their enemies are the leftists, the trade unions, the Dalits, the Adi- vasis, the minorities, rights-based organisations and all those who oppose their narrow bigoted view of the world. Who are these people? Who are they, who in the name of god actually seek the destruction of all that is spiritual and peace loving not only in Hinduism but in other religions as well? One has only to view the media recordings of riots to understand that they are truly the scum of this earth. Crude and violent people, given to violence and the suppression of women, they seek both political power as well as fi nancial might in the name of religion. A time will no doubt come when the people of India will recognise these criminals in religious garb for what they truly are, but in the meanwhile there is confusion everywhere. The war against terror has come to India as well and with it the stigmatisation of Muslims as terrorists. That the persons and political parties − who slaughtered men, women and children and destroyed their properties during the riots − are not terrorists but crusaders is an indication of how upside down things are in India. India stands at a critical period of its history where the basic structure of the Nation-state – secularism – is under threat... Together with the terrorists from Pakistan, who seek to undermine the Indian States, these communal parties stand on par. This is therefore the contemporary history of these terrorists who dress in religious garb and speak in the name of god but perform acts of incredible violence and greed. They occupy positions of power and prestige within the Indian State. They operate the Criminal Justice System. They openly spread hate. As things stand today, it does not appear that these terrorists will ever be apprehended or punished. Shabnam Hashmi, the head of ANHAD, felt that nevertheless it was important to document

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |273 CHAPTER THIRTEEN this critical phase of history where there is a lull before the storm. At this time, when the nation has grown so complacent with its economical growth, it is important to record and report on the dark clouds of Communalism and Fascism building up on the horizon.

–Rise of Fascism in India: Victims of Communal Violence Speak January 2008 With input from Shabnam Hashmi

|274 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNAL VIOLENCE BILL MORE POWER TO THE POLICE, NOT THE VICTIMS

he UPA government has done it again! The Communal Violence Bill is astonishingly poor, having been drafted in ignorance of the two draft Bills proposed by civil society groups Tafter extensive consultations with NGOs. The focus is on increasing police power instead of empowering civil society to initiate and control prosecutions when communal crimes occur. Given that the government is the principal wrongdoer in many instances the thrust of the legislation is misplaced. Fatal flaws The Act is that it cannot come into force in a state unless the state government issues notifi cation to that effect. Once notifi ed, the Act cannot be invoked even when communal crimes take place unless the state or the central government decides to declare an area “communally disturbed.” Therefore, if the state government refuses to issue a notifi cation bringing the proposed Statute into force or if the state government refuses to declare an area communally disturbed, the Act will not apply. All opposition governments could ignore this Statute completely. Moreover, a state government may issue a notifi cation bringing the Statute into force in the state and yet render it sterile by not issuing notifi cations declaring certain areas to be “communally disturbed areas.” The Act fundamentally misunderstands what the term “communal riot” has come to signify in the Indian context, which is precisely why it cannot adequately provide for the prevention or allevia- tion of communal riots. Communal riots in India are not mutual violence between two communities analogous to a miniature civil war. They are the attack of one community by another with substantial collusion of the government at the local, district and state levels. If one understands a communal riot to be a mutual clash, then the natural response is to increase the discretion and power of the state government in order to control and mediate the confl ict. However, if one understands communal riots to occur with the complicity of the state government, then the aug- mentation of State power simply puts more weapons into the hands of communal forces, creating the possibility for increasingly violent attacks and increasingly unjust State response. This Bill does exactly that, and as a result, must be wholly rejected. Law is often created in ignorance of existing power relations in a society, particularly between the sexes. Communal violence in the prevention, commission and rehabilitation stages is always framed in the power relation, and is especially cruel in its use of the woman’s body as a bat- tlefi eld. Women are particularly targeted and intimidated by the hate speech that precedes a riot, they are subject to most brutal violence during the riot, and they face the greatest diffi culty in

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |275 CHAPTER THIRTEEN the rehabilitation stages. This Bill relegates their suffering to an afterthought, and even then is woefully inadequate in fulfi lling its insuffi cient objectives. In terms of fl aw 1, Section 1 (4) is the culprit for the fi rst fl aw, which is as under: “The provisions of this Act, except Chapters II to VI (both inclusive) shall come into force in the states on such date as the central government may, by notifi cation in the offi ce gazette, appoint… and the provisions of chapters II to VI (both inclusive), shall come into force in a state as the state government may by notifi cation, appoint…” The principal issue is Parliament’s legislative competence to make a law in respect of communal crimes, which according to some, is covered by Entry 1 (Public Order) of List II of the Seventh Schedule of the Constitution framed under Article 246. Only the state governments, it is contended, have the legislative competence to make laws in respect of communal crimes. However, the “public order” question is confi ned to disorders of a lesser gravity than communal crimes and is necessarily restricted disorders whose impact is felt only at the state level. Article 245 (I) restricts the legislative power of state legislatures to laws having application within the territorial limits of the state. Communal crimes have grown enormously in their nature and geographical spread. Apart from riots that have taken place on an ever increasing scale, often bordering on genocide; the spread of hate in educational institutions throughout the country, the social and economic boycotts, ghettoisation, stigmatisation and victimisation, all indicate that communal crimes have reached such a stage that they undermine the secular fabric of the Indian State. A similar argument was used by the central government to justify the enactment of what was called “anti-terrorism legislation” - TADA and POTA. It may be recalled that even the possession of a weapon in a notifi ed area, as in fi lm actor Sanjay Dutt’s case, could attract charges under these Statutes. Communal crimes are arguably as grave as “terrorist crimes” in today’s situation. The same logic could, therefore, apply to the effect that the control of communal crimes falls within the legislative competence of the central government. If this is correct, the concurrence of the state government for the enactment of legislation and the punishment of communal crimes is not necessary. In Kartar Singh vs State of Punjab (1994.3.SCC.569) - the Supreme Court held: “Having regard to the limitation placed by Article 245 (I) on the legislative power of the legislature of the state in the matter of enactment of laws having application within the territorial limits of the state only, the ambit of the fi eld of legislation with respect to ‘public order’ under Entry 1 in the State List has to be confi ned to disorders of lesser gravity having an impact within the boundaries of the state. Activities of a more serious nature which threaten the security and integrity of the country as a whole would not be within the legislative fi eld assigned to the states under Entry 1 of the State List but would fall within the ambit of Entry 1 of the Union List relating to defence of India and in any event under the residuary power conferred on Parliament under Article 248 read with Entry 97 of the Union List.” (Para 66) There is a feeble attempt in Chapter XI to assert the primacy of the central government where a

|276 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM situation exists corresponding to Section 3 above mentioned, i.e., where communal violence is taking place on such a large-scale that there is an imminent threat to the secular fabric, unity, integrity or internal security of India. Then and only then, is the central government empowered to direct the state government to take measures. If the state government does not take such measures, the central government may issue a notifi - cation declaring any area within the state as a communally disturbed area. Even then the central government cannot deploy armed forces without the request of the state government! Section 55 (3) is critical: “(3)Where the central government is of the opinion that the directions issued under Sub- section (2) are not followed, it may take such action as is necessary including: (b) the deployment of armed forces, to prevent and control communal violence, on a request having been received from the state government to do so.” Narrow definition The proposed Act can only be invoked in the most extreme circumstances where there is criminal violence resulting in death or destruction of property and danger to the unity of India. There is a myriad of serious communal crimes which may not result in death, such as rape, and which are not considered to endanger to the unity of the country. All these crimes fall outside the ambit of the Bill. Even if such circumstances do exist the section only prescribes that the government ‘may’ act. On the face of it, the duty to act is not mandatory. The offending part of the Bill is Chapter II, the relevant parts of which are set out below: “3. (I) Whenever the state government is of the opinion that one or more scheduled offences are being committed in any area by any person or group of persons– a. in such manner and on such a scale which involves the use of criminal force or violence against any group, caste or community resulting in death or destruction of property and; b. such use of criminal force or violence is committed with a view to create disharmony or feelings of enmity, hatred or ill-will between different groups, castes or communities; and c. unless immediate steps are taken there will be danger to the secular fabric, integrity, unity or internal security of India. It may, by notifi cation: i) declare such area to be a communally disturbed area (3) Where any area has been notifi ed as communally disturbed area under Sub-section (l), it shall be lawful for the state government to take all measures, which may be necessary to deal with the situation in such area… (2) If the state government is of the opinion that assistance of the central government is required for controlling the communal violence, it may request the central government to deploy armed forces of the Union to control the communal violence.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |277 CHAPTER THIRTEEN

Sexual violence The Bill contains no special provision for the prosecution or rehabilitation of offenders and victims of sexual violence. The bill fails to be cognisant of the radically different nature of sexual assault during peacetime and during communal riots. The particularly brutal sexual violence committed en mass during communal riots testifi es to the genocidal intent of the crime, and thus should be treated appropriately by any legislation seeking to address communal violence. The Bill must further recognise the specifi c types of sexual violence seen during communal violence, including genital or mammary mutilation, insertion of objects into the women’s body, cutting out of the uterus, etc., that are not covered under the existing IPC provisions for rape (Section 375). These offences must be held in equal standing with the other types of sexual violence already covered by the IPC. Finally, there is no special provision for women in the rehabilitation section of the Bill, despite pervasive evidence of their continuous and abject suffering as a result of communal violence. There are no special provisions that allow survivors of sexual violence to more easily record FIRs, avail of counselling or medical treatment among other things. There are no specifi c standards of proof laid out by the Bill that take into account the unique obstacles women face in the aftermath of communal violence. Communal crimes Section 2(l) read with the Schedule indicates that crimes covered by this Bill are offences as set out in the Indian Penal Code, the Arms Act 1959, the Explosives Act, 1884, the Prevention of Damage to Public Property Act 1984, the Places of Worship (Special Provisions) Act, 1991, and the Religious Institutions (Prevention of Misuse) Act, 1988. The Bill does not propose to include any of the communal crimes so frequently noticed in riot after riot. Gender violence including the insertion of objects in the genitals, social and economic boycotts, forcible evictions, restraint on access to public spaces, residential segregation, deprivation of access to food and medicines, enforced disappearances, interference with the Right to Education, using religious weapons and ceremonies to intimidate, interference with police work, advocating the destruction of a religious structure, are woefully absent in the Bill. All that the Bill provides for in chapter IV, is for enhanced punishment for the commission of already defi ned offences under other Statutes. A special section on communal crimes against women and children is sorely needed to cover sexual violence, penetrative assault, sexual slavery, enforced prostitution, forced pregnancies, enforced sterilisation and other forms of sexual violence. The rules of evidence need to be modifi ed so that the victim is not further victimised during the trial. Unnecessary sections Chapter III deals with the prevention of communal violence. Chapter V deals with investigation of offences. Chapter VI deals with the setting up of special courts. Apart from minor changes, these provisions already exist in the Criminal Procedure Code and, in any case, it is doubtful whether it is necessary at all to include these provisions in this proposed special Act. Chapter III, for example, relates to the prevention of communal violence and appears to empower the district magistrate to prevent the breach of peace by, inter alia, curbing processions, externing persons, |278 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM regulating the use of loudspeakers, seizing arms, detaining persons and conducting searches. This is largely a cosmetic section because the police, in any case, have the powers to do all these things under the Criminal Procedure Code and various other Criminal Statutes in force today. A chapter on preventive action to be taken by the authorities along the lines of the SC/ST Atroci- ties Act is certainly needed. Immediately on receiving information, the offi cials should visit the area, establish a police outpost, begin patrolling with special police forces and form vigilance committees. Victims’ rights There are, of course, the wishy-washy Chapters VII and VIII requiring government to plan and coordinate relief and rehabilitation measures through the setting up of state and district communal disturbance relief and rehabilitation councils but these chapters fall far short of enunciating victim’s rights enforceable in court. Chapter X of the Bill deals with compensation to be paid to the victims but restricts the compensation to the amount of fi ne payable under the Code, which is generally very small. In the Communal Crimes Bill, 2007, submitted by the Human Rights Law Network (HRLN) and ANHAD to the government, the suggested sections made it mandatory for the government to set up relief camps, pay subsistence allowance, pay substantial compensation and provide reasonable rehabilitation including alternative sites and housing and to reconstruct the destroyed places of worship at government’s expense. All these victims’ rights are missing in the present Bill. When the state does not protect the lives and properties of the minorities during communal carnages, should the victim not have a right to compensation and alternative livelihoods at the cost of the State? An answer to this was expected in the Statute. Is a relief camp to lie at the discretion of government and NGOs with shabby provisions being made on a temporary basis, or is it a right of the victim to be provided immediate relief according to well-established norms? Once again, had government cared to look at the Atrocities Act, it would have noticed the provisions relating to the collective fi ne where the community harbouring the aggressors could be substantially fi ned and the money used for the payment of compensation. There is no provision in the Bill relating to the duties of authorities after the riots take place. A section is necessary requiring the authorities to provide immediate relief and protection from further acts of violence, to prepare a list of victims and their losses, and to provide for legal aid, allowances, and facilities during legal proceedings. Likewise, provisions are required to enable the arrest and detention of people engaging in hate speech and to enable the court to shift the investigation to the CBI in cases of involvement of the local police in the communal crime. The Supreme Court has recently held that social Statutes must be accompanied by a fi nancial memorandum. This is to ensure that government puts its money where its mouth is. The Govern- ment of India is accustomed to enacting grand legislation without allocating resources for its implementation. In this regard, the fi nancial memorandum of the Bill makes for interesting reading: “As involvement of expenditure depends mainly on the occurrence of communal violence, it is diffi cult to make an estimate of the expenditure, both recurring and non - recurring, from the Consolidated Fund of India.”

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |279 CHAPTER THIRTEEN

It is thus clear that the Government of India intends to make no fi nancial provision whatsoever for the relief and rehabilitation of the victims of communal crimes. Witness protection The witness protection provision—Section 32—has been drafted without application of mind as to the Law Commission’s recommendations. The usual pathetic provisions reappear, covering only the holding of proceedings at protected places and the shielding of the identity of the witnesses. The main aspects of modern day witness protection, which include the shielding of the witness from the accused, compensation of the witness for the trauma suffered during the crime and trial, creation of new identities and a new life for the witness, are all missing. Genuine witness protection includes a substantial fi nancial commitment of the state to care for the witness and her family in secrecy, often for the rest of their lives. Immunity for public servants Section 17, which grants immunity to the police and the Army, is particularly insensitive. Al- though the section provides for the punishment of public servants who break the law, two things must be noticed. Under the Indian Penal Code the punishment for such offences committed by public servants is more severe than the maximum sentence of one year with the alternative of a fi ne presecribed in the Bill. Secondly, Section 17(2) retains the requirement of sanction by state government for prosecution of public servants. The provision is as under: “(2) Notwithstanding anything contained in the Code, no court shall take cognisance of an offence under this section except with the previous section of the state government.” Various commissions of enquiries including the Justice Ranganath Mishra Commission (Delhi Riots), the Justice Raghuvir Dayal Commission (Ahmednagar Riots), the Justice Jagmohan Reddy Commission (Ahmedabad Riots), the Justice DP Madan Commission (Bhiwandi Riots), the Justice Joseph Vithyathil Commission (Tellicheri Riots), the Justice, J. Narain, SK Ghosh and SQ Rizvi Commission (Jamshedpur Riots), the Justice RCP Sinha and SS Hasan Commission (Bhagalpur Riots), and the Justice Srikrishna Commission (Bombay Riots), have found the police and civil authorities passive or partisan and conniving with communal elements. A chapter is necessary to punish police persons, paramilitary forces and members of the armed forces for their involvement in communal crimes particularly when FIRs are not registered or registered improperly, when security is not provided to minorities under attack, when destruction of property is not prevented and when inadequate forces are deployed. Where the offi cers stand fi rm — and there were many such fi ne examples of bravery even in Gujarat — the rioters are quickly diffused and dispersed. No communal riot can take place without the support of the police and the security forces. They must be severely punished for not doing their duty. The abject failure of the Criminal Justice System because of the insidious role of the police and the public prosecutors, who often side with the accused, needs special legislative attention. After the last racial riots in Britain, the McPhearson Committee recommended that complaints be registered at places other than police stations and suggested ways of overcoming ‘institutionalised racism.’ Sections are required for the punishment of policemen who fail to record complaints and conduct investigations properly. Complaints ought to be able to be registered electronically. |280 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM

Recognising the role of the police in communal riots, it is critical that the immunity granted under Sections 195, 196 and 197 of the Criminal Procedure Code be omitted in any Statute on communal crimes. No junior offi cer should be allowed to take the defence that he was ordered by his superior to commit the crime. Nor should any commanding offi cer be allowed to take the defence that he was unaware of the crimes that were committed on his beat. Similarly, public prosecutors who side with the accused persons and enable them to be released on bail or are instrumental in their acquittal ought to also come under legislative scrutiny. A section is necessary to make it mandatory for the trial judge who fi nds the performance of the prosecutor unsatisfactory to remove him from the case. Politicians must come in for special mention in the legislation. Any minister interfering with the police work by shielding the accused, misdirecting the police investigation or by preventing relief from reaching the victims should be treated as a common criminal. His ministerial status should afford him no protection in law. All in all, this is a policeman’s Bill oriented to increasing police power with no care for the victim.

–Combat Law July-August 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |281 GODHRA

here is no reported decision of any of the High Courts of the states or of the Supreme Court of India, on the proposition that a discriminatory application of a Statute, the discrimination Tbeing made on the basis of the religion of the accused person, would offend Article 14 of the Constitution of India. The Article reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Such a discriminatory use of the Statute would undoubtedly also be contrary to the mandate of Article 15 which reads: “The State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them.” This absence of case law is difﬁ cult to understand particularly when there exists such a pronounced anti-Muslim slant to the application of POTA. Nor did the National Human Rights Commission (NHRC) care to condemn the use of security legislation to promote a Hindutva agenda. In the case of NHRC, however, the reasons were not difﬁ cult to discover. The Chairperson of the NHRC was the judge who wrote the judgement of the Supreme Court in People’s Union for Civil Liberties vs Union of India (2004.9.SCC.580) were POTA was held to be constitutionally valid. Even the Commission of Enquiry, appointed by the Government of Gujarat to look into the Godhra train incident and the riots that followed, never once questioned the disparate use of POTA. Perhaps the key lay in the manner in which Hindutva forces maneuvre persons into positions of power within the legal system and then use them to do their bidding. One of the members of the commission, Justice Akshay Mehta, was referred to extensively by a Hindutva leader facing trial. The conversation was recorded in a sting operation by two television channels which caught him referring to Justice Mehta as the judge who was spoken to by the chief minister. The latter told the judge that he should grant bail to the accused in the riot cases.1 Though there are no direct decisions, proscribing the selective use of criminal law Statutes, there are several important Supreme Court judgements which instruct the State to behave in a secular way and to not allow religion to intrude in matters of State. In ZB Bukhari vs BR Mehra [(1976. (2).SCC.17)], the Supreme Court held that the secular State is “neutral or impartial” (Pg.32). Later in SR Bommai vs Union of India [(1994(3).SCC.1)] a nine-judge Constitutional Bench of the Supreme Court held, “The State is neither pro-particular religion nor anti-particular religion. It stands aloof.” (Pg.168). How is it then that, with such a clearly stated case law, the practice is so discriminatory? What accounts for the huge chasm between the letter of the law and actual state practices? Why is it that, despite the exhortation of the Supreme Court in Kartar Singh vs State of Punjab 1 Appointment of Justice Akshay Mehta (Retd.) In Nanavati Enquiry Commission- Can a Person be the Judge in His Own Cause- SH Iyer, Advocate, Jan Sangharsh Manch, Ahmedabad, Unpublished Note. |282 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM

[(1994(3).SCC.569)] where the Court urged the Union of India to introduce a provision in the law for a review committee to “screen” cases (Pg.587), security legislations continued to be applied harshly particularly against minorities? In Shaheen Welfare Association vs Union of India [(1996).2.SCC.616)], while dealing with the security legislation case, the Supreme Court held that the “liberty of a citizen must be zealously safeguarded by the courts.” (Pg.620). The invocation of the provisions of such Statutes, when it is not warranted, was “nothing but sheer misuse and abuse of the Act by the police.” (Pg.620). The decision of the Supreme Court, in the Godhra case, is awaited. It is hoped that the Court will say that the decision of the review committee is ﬁ nal. But till that day, Godhra victims continue to languish in jail stigmatised as terrorists.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |283 REWARDS FOR RIOTING

xcellent journalistic investigation has been done by Jyoti Punyani and Shakeel Ahmed into the action taken by the Maharashtra Government with respect to those police offi cers in- Edicted by the Justice Srikrishna Commission. The commission looked into the massacre of thousands of Muslims during the Bombay Riots of 1992 when the Shiv Sena was in power. Justice Srikrishna was then a judge of the Bombay High Court. In a hard hitting report he, inter alia, indicted a large number of police offi cers for participating in the riots, for killing Muslims in cold blood and for looting. He recommended that strict action be taken against all these offi cers. The report was submitted to the Maharashtra Government in accordance with the provisions of the Commission of Enquiries Act. Subsequently, this report was placed before the Maharashtra Legislative Assembly together with the action taken report of the government wherein the government agreed with the fi ndings and recommendations of the Srikrishna Commission. Under the Commission of Enquiry Act, a report is only recommendatory and is not legally binding upon the government. Once, however, the government fi les the action taken report, agreeing to implement the recommendations, it cannot be resiled from. Punyani and Ahmed traced the careers of the offi cers indicted by the commission and found that many offi cers had been exonerated. Many had been promoted several times over. Where punishments were imposed they were so minor, compared to the heinousness of the crime, as to be almost laughable. All the criminal cases ended with acquittal for the simple reason that policemen, prosecuting their brothers, went out of their way to sabotage the prosecution. In many cases, even the families of the victims were not called to give evidence or were intimidated into giving false evidence. The same was the case with the departmental enquiries where every offi cer was exonerated. How does one punish a policeman for misconduct when the punishing authority is the police itself and probably an offi cer from the same station? Can one reasonably expect justice to be done in such a situation? What alternative systems, which are both independent of the police and effective, are being followed in the world today to punish police misconduct? That a radically new approach is necessary is obvious from the fi ndings of several commissions of enquiries held both in India and abroad. A high level commission, in the UK headed by Sir William MacPherson, enquired into the killing, in 1993, of a black teenager, Stephen Lawrence, who was physically attacked by a group of white youth who called him a nigger and then stabbed him. The fi ve suspects were quickly identifi ed by witnesses but no arrests were made by police. Police were reluctant to prosecute and the suspects were acquitted.

|284 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation COMMUNALISM

The 1981 Lord Scarman’s Report − into the Brixton disorders − dismissed the allegation that the police knowingly and, as a matter of policy, discriminate against blacks. He insisted that racist behaviour was restricted to “bad apples.” The MacPherson Report differed in explicitly recognising “institutional Racism.” While clarifying that it was not accusing the entire police force of Racism, the report emphasised that there were “several organisational structures, policies, processes and practices which often without intention or knowledge resulted in ethnic minorities being treated unfairly and less equally.” It defi ned institutional Racism as “the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” The report said that such institutional racism was present in the actual investigation itself, in the disparity in the “stop and search” fi gures, in the signifi cant under-reporting of “racial incidents” occasioned largely by a lack of confi dence in the police, and the fact that not a single police offi cer questioned before it had received any training of signifi cance in Racism awareness and race relations throughout the course of her career. The report said that “the problem (was) not one of individual predisposition to wrongdoing but one of structure, a problem of cultural failure.” The commission recommended openness, accountability and the restoration of confi dence through a series of measures. It recommended that performance indicators be framed in relation to the racist crimes. Measures were to be taken to encourage the reporting of racist incidents. Minority ethnic recruitment should be improved so that the membership of the police refl ects the cultural and ethnic mix of the communities the police serve. The examination, and inspection of police services, ought to be done by lay inspectors. The Freedom of Information Act should apply to all areas of policing subject only to the “substantial harm” test. Immunity should be curtailed. The full force of race relations legislation should apply to the entire police force. A comprehensive system of reporting and recording all racist incidents and crimes ought to be put in place. The reporting of racist crimes ought to be permitted and encouraged 24 hours a day and at locations other than those of police stations. Any request, made by the family of a victim, not acceded to should be immediately reported to a superior offi cer. The victim, or her family, is required to be consulted and kept informed as to any proposal to discontinue proceedings. The decision is to be carefully and fully recorded in writing and disclosed to the family. The court of appeal should be given the power to permit prosecution after acquittal where fresh and viable evidence is presented. The victim’s families should be allowed to become “civil parties” to the criminal proceedings to facilitate the fl ow of information to them. Legal aid should be provided. There should be published recognised standards of training in the fi eld awareness of racism and cultural diversity. Disciplinary action should be available for at least fi ve years after an offi cer’s retirement. The police should implement a code of conduct where racist words, or acts, result in dismissal from service. Serious complaints, against the police, ought not to be investigated by offi cers from their own or another police service as this is widely regarded as unjust and does not inspire public confi dence. They must be independently investigated. Procedures for selection and promotion of offi cers, particularly at the senior level, ought to be reviewed from the point of KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |285 CHAPTER THIRTEEN view of racism. A record must be made, by police offi cers, of all “stops and searches” made. There should be targets for recruitment, progression and retention of minority ethnic staff. Local education authorities have a duty to create and implement strategies in schools to prevent and address racism. These strategies should include the recording of all racist incidents, the reporting of incidents to parents and the publishing of the number of such incidents. Similar exercise was done in Canada particularly after the Manitoba Government created the public enquiry into the administration of justice and aboriginal people in 1998. This was commonly known as the Aboriginal Justice Enquiry. The enquiry was created in response to the killing of original people by known assailants who were later on not prosecuted leaving behind many unanswered questions about the police services, internal investigations. Issues of racism, cultural sensitivity and accountability emerged during the course of the hearings. As a result, the AJI made a series of recommendations adopting aboriginal community-based policing, requiring the development of a professional aboriginal police force, doing cross-cultural training, the development of an effective complaints body to hear complaints against the police. The enquiry also recommended that any police recruit, displaying racist attitudes, be screened out of training and police offi cers, who display such conduct, be dismissed. It also recommended the creation of a special investigation unit which would report directly to the minister of justice for Inquiries into police misconduct. These units were required to have at least one aboriginal person on the panel when the complaint came from an aboriginal person. Similar developments took place in Europe after 1998 when the European community set up NA- PAP – NGOs and Police Against Prejudice – to make the police aware of their own racist attitude. In New Zealand, the Marshall Enquiry (1989), the Blood Enquiry (1991) and the Osnmaburgh – Windigo Report (1991) sharply criticised the police of bias. The Blood Enquiry reported sharp differences in perceptions and perspectives between the police and native people and that people wanted a genuine community-based policing style. In Israel, the Or Commission − established to look into the riots that led to the killing of 13 Arab citizens by the police in October 2000 − described the “institutional racism” practiced by law enforcement agencies and detailed a whole list of civil rights systematically violated by the security forces. There have been similar fi ndings and recommendations of commissions of enquiries in India as well. The Justice Ranganath Mishra Commission − looking into the organised violence in Delhi and other parts of India following the assassination of Indira Gandhi − found that fi rst information reports (FIRs) had either been not recorded at all or recorded wrongly and investigations had been conducted improperly in order to shield the rioters. The Justice Dilip K. Kapoor and Kusum Lata Mittal Committee to Enquire into the Police delinquencies.

|286 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

1. Time Limit for Criminal Trials 2. Legal Aid is in the Nation’s Interest: Lumpen not Learned 3. The Tragic Decline of the Criminal Law Jurisprudence

4. Hail Bail, No Jail! FOURTEEN 5. Rot in the Prisons 6. India Needs to Urgently Reconsider its Position on the Death Sentence 7. Vice of Arbitrariness 8. Afzal’s Case 9. In Defence of Afzal 10. Why the Death Penalty?

11. Right to Legal Aid CHAPTER 12. Why Witnesses Turn Hostile? 13. Should Life Imprisonment be for Life? 14. The Fourth Quarter of Time 15. A Knee-jerk Reaction: Politicians are Still Not Listening 16. Death to the Death Penalty Courtesy: Internet

There are thousands of cases in the history of Indian criminal law jurisprudence, where innocent persons were dragged before the criminal courts, accused of heinous crimes and then convicted and punished.

|288 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TIME LIMIT FOR CRIMINAL TRIALS

he Code of Criminal Procedure (Amendment) Act, 2005 has been welcomed in the national media as heralding the release of 50,000 undertrials many of whom have been languishing Tin jails for years without their trials even beginning. Nothing could be farther from the truth. The amendment is in fact a reversal of the Supreme Court decisions from 1996 onwards in the Common Cause and the Raj Deo Sharma cases. In the Common Cause cases, in 1996, the Supreme Court found that in many cases, where the persons were accused of minor offences, proceedings were kept pending for years. The poor languished in jail for long periods because there was no one to bail them out. The Criminal Justice System operated as an engine of “oppression.” The Supreme Court then directed that, depending on the seriousness of the alleged crime, those in jail for a period of six months to one year, would be released either on bail or personal bond, provided their trials were pending for one to two years. The Supreme Court then issued directions for the closure of cases and the discharge of the accused. Cases − where trials had not commenced for specifi c periods of time − were to be closed. Cases − relating to corruption, smuggling, terrorism and the like − were exempted. It was made clear that the accused would not be permitted to deliberately delay the criminal proceedings and then take advantage of the time limits fi xed. In the Raj Deo Sharma cases, in 1998, the Supreme Court referred to its 1980 decision in the Hussainara Khatoon case where the Supreme Court held that “fi nancial constraints and priorities in expenditure would not enable the government to avoid its duty to ensure speedy trial to the accused.” The Court thereafter proceeded to issue guidelines for the closure of prosecution evidence and the release of the accused on bail after a certain period of time. It was made clear that “no trial could be allowed to prolong indefi nitely due to the lethargy of the prosecuting agency.” Despite these directions, given by the Supreme Court ten years ago, the criminal courts failed to release persons on bail and close trials. The law was reviewed by a Constitutional Bench of the Supreme Court in P. Ramachandra Rao’s case in 2004 where the directions, relating to the closure of cases and the fi xing of time limits for trials, were set aside saying that it was “neither advisable nor practicable” to do so. As a result, the rot in the Criminal Justice System deepened and from time to time pathetic stories emerged in the national media on undertrials languishing in jails for decades, but nothing was done. The present criminal amendment is a reversal of the guidelines laid down in the Common Cause and the Raj Deo Sharma cases, fi rst of all because the guideline makes no reference to any time limit for a criminal trial to end. Secondly, whereas in the earlier decision an accused was entitled to

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |289 CHAPTER FOURTEEN be released on bail or personal bond, after being in jail for six months to a year depending upon the seriousness of the crime alleged, now that has been enhanced to half the period of possible incarceration i.e., 18-42 months. If, under the earlier decisions of the Supreme Court, undertrials were not released there is no reason for us to believe that, under a more stringent regime, justice will be done. There are over 250,000 undertrials languishing in jails even though the law presumes them innocent unless convicted. In many cases, despite years going by, the trials have not begun. Seven, out of every ten persons in jail, are in this situation. Overcrowding in jails is routine in some jails as high as 300 percent. Inmates sleep in shifts. Possibly no country, other than India, in the democratic world keeps its people behind bars in this manner. The overwhelming majority of those incarcerated are poor, Dalits, Adivasis and Muslims. That the system operates harshly against these sections is an understatement. It operates only against these people. The reluctance of the State to clear the jails of the poor is more by design than accident. The arbitrary powers − to keep a person confi ned without a guilty verdict − is necessary for a State and its police that rules by terror. The Criminal Justice System is not really interested in the determination of truth ensconced in the fi nal verdict, rather it is a massive arbitrary system of preventive detention where the ultimate verdict is of no concern as long as the accused, picked up by the police, languish many years in jail prior to acquittal. Those who criticise the State for the low rate of conviction miss this point. Conviction was never the intention of the police in the fi rst place. This accounts for the sloppy state of forensic investigation and the reliance placed on the lathi over the law. The other changes − brought about by the criminal amendment − are also equally vague or dangerous. The amendment − in 50-A of the CrPC − introduces the Supreme Court’s guidelines in DK Basu’s case but leaves out the crucial element of giving notice to the family of the person being arrested in writing. This was important because the police routinely lie about giving notice verbally. The amendment to Section 53 is positively dangerous because it seeks to introduce in a sly manner lie detector and narco analysis tests as admissible in evidence. In most democratic countries these tests are deemed to be of dubious merit and are not admissible. The amendment to Section 122 seeks to strengthen police power in chapter cases by incarcerating people purely on the basis of suspicion. As the law stands today such persons are to be released by signing a bond for good behaviour. Now the magistrate will be empowered to ask for sureties which is complicated and diffi cult for the accused to obtain. Tens and thousands of poor people are languishing in the jails under this Section. Section 291-A is designed to prevent the magistrate, who supervises the test identifi cation parade, from being summoned to give evidence in court. These are the negative changes sought to be introduced by the criminal amendment. A better way out for the State is to declare an amnesty and to clear the jails of 100,000 poor prisoners on Independence Day.

–Combat Law July-August 2007

|290 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation LEGAL AID IS IN THE NATION’S INTEREST: LUMPEN NOT LEARNED

he national debate − over whether Kasab, the alleged Pakistani terrorist, ought to be provided with legal aid − highlights once again the importance of legal aid not only as a consti- Ttutionally protected right of every accused person but also, and this is little understood, the importance of legal aid in strengthening the security of the nation. The ﬁ rst point is well settled by a series of decisions of the Supreme Court. In Ranchod Mathur Vasawa’s case, the Supreme Court held that “indigence should never be a ground for denying a fair trial.” In Hoskot’s case, the Supreme Court interpreted Article 39 A of the Constitution as making it mandatory for the State to provide free legal aid. This meant not some junior lawyer but a person of the petitioner’s choosing and reasonable remuneration had to be paid. In Khatri’s case and Hussainara Khatoon’s case the Supreme Court expanded the constitutional right to free legal aid and held that it was to be provided from the very ﬁ rst day when the accused is produced before a magistrate. In Suk Das’s case, the Supreme Court held that a trial conducted without a lawyer was in violation of the Constitution and the trial was set aside. Similarly in Moolchand’s case the trial was held to be vitiated. That Kasab’s trial would be vitiated and he could possibly either be re-tried or set free if he is not given a competent lawyer. This is something that misguided elements seem to miss. There is a move, in some sections, to campaign against lawyers defending Kasab. Their premises have been attacked and their lives are in danger. Many of those, campaigning against providing free legal aid, belong to a certain political party that is particularly adept at making a lot of noise about terrorism while in reality doing precious little about it. The hot air generated is obviously with an eye on the forthcoming elections. Even after such a tragedy as the Mumbai Attack, politicians cannot but see the incident as one more opportunity to campaign for votes. Human beings are expendable commodities. But there is another aspect of this campaign to deny free legal aid generally and this has wider implications than Kasab’s case. In the wake of the bomb blasts occurring in different parts of the country, many persons were arrested by the police and charged with serious offences. Some of the accused persons will ultimately be held to be guilty and sentenced by the criminal courts and some will be set free. In the meanwhile, a vigorous campaign was set in motion in the Bar Associations across India. Mohammed Shoaib, an advocate practicing in the Lucknow court for the last 32 years, was assaulted by local lawyers, prevented from appearing for the accused and forced to sign an application to the Court withdrawing his vakalatnama. He was neither provided police protection by the superintendent of police nor did the magistrate take appropri-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |291 CHAPTER FOURTEEN ate and timely action. A letter, sent to the Bar Council of Uttar Pradesh, was also ineffective. Jamal Ahmad, a lawyer from Faizabad, was similarly threatened and assaulted by the local Bar Association and his complaints to the police and the Bar Council was of no use. Likewise Noor Mohamed, who has been practicing for the last 36 years in Ujjain, was mercilessly beaten when he went to the court of the chief metropolitan magistrate, Dhar, in Madhya Pradesh to represent the accused persons. The Nagpur District Bar Association, in Maharashtra, passed a resolution to the effect that no lawyer of the association would defend the persons accused in bomb blast cases. Similarly, the Rajasthan High Court Bar Association issued a directive to its members not to defend those arrested in the Jaipur bomb blast case. All across the country advocates, who are lumpen rather than learned, most of them from a particular right wing political party, are showing off their “nationalism” by these crude methods. The question to be asked is whether the denial of legal aid is really in the national interest. Speaking generally, it is undoubtedly in the interest of society to prosecute suspected terrorists effectively and speedily. The State purpose in such a prosecution is not only to punish the guilty but to ensure that the prosecution agency has well and truly managed to nab the principal wrong doers. If, in the place of the real accused, dummies are prosecuted only because the police were anxious to show the public that they have done their job and caught the culprits, the security of the nation is put in jeopardy. Similarly, if, in the place of the main accused, those on the periphery of the crime are put upfront and prosecuted the same danger to the nation will exist. The danger is two-fold. First, the terrorists are at large and are free to carry out their terror attacks again. Second, civil society becomes complacent believing that terrorism has been put down and consequently lowers its guard. Providing legal aid, and indeed by providing a competent lawyer to persons accused in heinous crimes, serves a vital and compelling national and public interest. When an accused is ably defended and is nevertheless convicted on the basis of the evidence produced by the prosecution, society can sleep easy at night knowing that there was overwhelming evidence against the accused and that the police have got their man. On the other hand, when legal aid becomes a vacuous and empty formality when: (i) it is denied; (ii) or formal legal aid is provided by giving the accused a junior lawyer incapable of handling complicated cases; (iii) or by providing a lawyer who doesn’t want to defend the accused but is compelled by the court to do so. Instruc- tions are not taken by the advocate from his client, a defence strategy is not worked out, cross examination of prosecution witnesses is done casually, the case is not researched well and arguments are presented in a shabby manner. The overall result, of a formal trial, is that though the person may be convicted and perhaps even hanged, society will never know whether the police really got the right man. The danger to society is enormous. There are hundreds of cases, perhaps thousands of cases in the history of Indian criminal law jurisprudence, where innocent persons were dragged before the criminal courts, accused of heinous crimes and then convicted and punished. For petty criminals, and for those convicted of normal IPC offences, apart from the injustice to the individual, the danger to the nation as a whole is limited. But for those accused of terrorist offences, such a formal trial and conviction, undermines national security. This is why all those who argue against legal aid are actually, though sometimes not consciously, acting against this nation’s interests.

|292 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE TRAGIC DECLINE OF THE CRIMINAL LAW JURISPRUDENCE

he police have made shrewd use of the media. In concert, they have propagated the notion that the law and the Judiciary are too lame to curb crime or deal with hardened criminals. TRather than identify the real weaknesses (shoddy police work and backward methods), the Criminal Justice System has yielded to the media’s blind criticism and responded by boosting the conviction rate. This has been achieved at the expense of crucial Supreme Court precedents that once safeguarded the Fundamental Right to a fair trial. In this article we analyse recent Supreme Court judgements that have vandalised criminal jurisprudence and overturned long-established principles. From condoning torture, to admissibility of confessions made to police offi cers, the damage is widespread. Background Over the last 15 years, criminal law protection of the accused has been steadily dismantled. It began with the misconceived perception, within the highest levels of the Judiciary, that the rights of the accused were too extensive and in need of review. This was fuelled in large part by a systematic media campaign conducted by senior police offi c- ers: They made national television-appearances to coincide with high-profi le cases and capital- ised on the public’s frustration with the Criminal Justice System. In their statements, they relentlessly berated the Judiciary claiming that having captured dreaded criminals and terrorists, the Judiciary’s hyper-technical application of human rights simply let them off at the drop of a hat. They claimed that the Judiciary’s tendency to grant bail or acquit criminals because of dogged adherence to notions of fairness further punished the victims of crime. The police frequently presented false information to the public on various TV programmes. For example, they claimed that the rate of conviction in Indian Penal Code (IPC) cases was only 10 percent, the true fi gure being closer to 50 percent. They also misrepresented convictions in TADA (The Terrorist and Disruptive Activities (Prevention) Act 1987) cases, claiming that the conviction rate was a mere fi ve percent. They neglected to mention that the vast majority of those accused under TADA are detained as “undertrials” for fi ve years or more before their trials even begin. The low conviction rate actually refl ects police propensity to misapply TADA to normal criminal cases, and innocent people. The police successfully shook the confi dence of the higher Judiciary and consequently initiated the destruction of crucial safeguards within the Criminal Justice System.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |293 CHAPTER FOURTEEN

Of course, judges would not appear on primetime TV and point out that most acquittals arise due to police corruption and their appalling standards of criminal investigation. The police’s view prevailed, unanswered, and their ideological campaign had the intended effect: Judges held public perception, rather than principles of criminal justice, uppermost in their minds. Embarrassed by the low conviction rate, this supposedly independent Judiciary has irresponsibly and arbitrarily accelerated convictions, in a bid to appear tough on crime. Without regard to the rule of law or criminal jurisprudence, the Judiciary did whatever was necessary to be seen putting criminals behind bars, denying bail and awarding the stiffest sentences. Judges were afraid to entertain reasonable doubt as to the guilt of the accused for fear of seeming weak. The Judiciary never considered that the constitutional rights of the accused could be preserved whilst repairing their image. Their hasty public relations exercise rallied to satisfy the upper- middle classes. The vast majority of the poor see the Criminal Justice System as a great engine of oppression where widespread torture is condoned by the Judiciary and innocent people are roped in while the rich get away scot-free. The Judiciary do not have the backbone to uphold the Constitution in respect of poor and working class people. The Dilution of criminal law India has a common law system. The principle of binding precedent (stare decisis) demands that decisions of higher courts, and within them, of larger Benches be adhered to and followed by lower courts and smaller Benches respectively. It serves to limit the arbitrary power of the Judiciary and increase legal certainty, thereby strengthening the rule of law. In India, frequent decisions made by small Benches of the Supreme Court have deﬁ ed those of larger, even Constitutional (ﬁ ve judges or more), Benches. Subsequently, their decision is followed in a series of cases in the lower courts, setting aside the earlier binding precedent. The smaller Benches claim that the decision they ignore is “technical” or “only a rule of prudence” or “merely a rule of caution.” However, criminal law is, at its core, a set of technical rules and procedures that require a judge to be prudent and cautious. Criminal jurisprudence lays down the path by which a judge is able to determine what constitutes “reasonable doubt.” Once these rules are discarded, a judge’s discretion becomes unfettered. The “beyond reasonable doubt” criminal standard is discarded and a judge does what he likes. He is able to convict or acquit on the basis of gut feeling. The rule of law crumbles. The Indian Judiciary has indeed set out on this treacherous course. See below for a survey of their most dangerous decisions. Vandalism of criminal jurisprudence: A selection of irresponsible Supreme Court decisions In this section, we survey the Supreme Court-sponsored decay of standards in criminal trials. The criminal law reports are rife with examples of the negligent reduction in the quality of evidence expected from the police and prosecution. The analysis deals with the following: • Condonation of torture

|294 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

• Blood tests • Dying declarations • Confessions • Lying witnesses • Sealing of articles associated with the crime • The fi rst information report (FIR) • Arrest of females • Chance witnesses • Standard of proof lowered Condonation of torture There is something seriously wrong when the highest court of the land, the Supreme Court of India, approves the use of torture by the police. In Kamalanantha vs State of Tamil Nadu (2005)1 the Supreme Court did not even whisper criticism of police who beat prosecution witnesses. This matter related to an unpleasant case of sexual assault on Ashram girls. The disgraceful dictum begins at paragraph 44 where the Su- preme Court decided that the failure of the police to follow s160 CrPC was permissible. That section stipulates that a policeman may require attendance of witnesses at a police station for questioning, but that women must be questioned in their place of residence. The Ashram girls were taken to the police station for questioning, in breach of that section. At fi rst glance, this seems reasonable, as it was held that: At paragraph 44: “the Ashram cannot be the place for the purposes of Section 160 CrPC and the victim girls were rightly examined and interrogated in women police stations. They were removed from the Ashram to erase the fear psychosis from them. It was for the safety and to serve the interest of justice, they were removed from the clutches of A-1.” However, the girls’ safety interests are hardly served if they are subsequently beaten by police in the station during the interrogation. At paragraph 58: “In the police station, we were enquired about the character of Premananda Swami. Since Premananda has already kept us under threat, myself and others did not reveal anything to the police. After the police beat us, myself and other girls informed that we were raped by Premananda. Only at that time I came to know that Premananda Swami was having sexual relationship with other girls.” The Supreme Court, however, had no problem with this: Paragraph 58 continued: “It is in that context the High Court holds that the so-called beating could have meant to shake-off their inhibition and fear, to make them free to say what they wanted to say. In the given facts and circumstances of this case, beating will mean to remove the fear psychosis and to come out with truth. We do not fi nd any infi rmity in the concurrent fi ndings recorded by both the courts below on this count.”

1 2005 5 SCC 194. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |295 CHAPTER FOURTEEN

Blood tests In a long line of decisions, the Supreme Court has prudently acquitted the accused when the police investigation is found to be grossly defi cient. For example, the failure of the police to show that blood, found on articles obtained from the accused, actually belonged to the deceased has rightly been excluded from the evidence. In Kansa Behera vs State of Orissa (1987),2 the Supreme Court gave a solid ruling, overturning a life sentence and conviction of murder that was based on circumstantial evidence: At paragraph 12: “As regards the recovery of a shirt or a dhoti [garment worn around the waist] with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Offi cer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the cloths of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.” At paragraph 13: “It is a settled rule of circumstantial evidence that each one of the circumstances have to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused. As discussed above, the only circumstance which could be said to have been established is of his being with the deceased in the evening and on that circumstance alone the inference of guilt could not be drawn.” However, in a shocking display of naivety, a three-judge Bench of the Supreme Court in Subra- mani vs State by Inspector of Police (2003)3 upheld a conviction of rape and murder of a teen- aged girl based purely on circumstantial evidence. Blood stains found on the accused’s lungi (a garment worn around the waist) was found to be human but its blood group could not be matched to that of the deceased. The Supreme Court held at paragraph 8: “...[the] deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained bloodstains. The serologist has opined that the bloodstains are of a human being but was not able to establish the blood group. As noted above, learned counsel for the appellant had contended that in the absence of such identifi cation of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungis belong to him and were seized from him, for that matter he says he gave the lungis to the investigating offi cer but he has not explained how the bloodstains which are at least proved to be human blood came to be there on the lungis. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungis at the time of the attack on the deceased... These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased. In our considered opinion leads to

2 1987 (3) SCC 480. 3 2003 (10) SCC 185. |296 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE the one and the only conclusion that the charged of rape and murder of Vaishavi levelled against the appellant stands proved.” Dying declarations Dying declarations are admitted in evidence on the contraversial legal maxim “nemo moriturus proesumitur mentiri – a man will not meet his maker with a lie in his mouth.” The evidentiary weight assigned by the courts to dying declarations is heavy. In Dasrath @ Champa vs State of Madhya Pradesh (2007):4 At paragraph 12: “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no scope of cross-examination. Such a scope is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confi dence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfi ed that the deceased was in a fi t state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfi ed that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.” The conditions required to “inspire full confi dence of the court” in the veracity of dying declarations has been progressively and outrageously degraded by a series of Supreme Court decisions. Until recently, dying declarations were accepted on a cautious basis: A magistrate may record a dying declaration if a doctor is present and certifi es that the injured was both: (1) conscious; and (2) in a fi t state of mind, at the time the declaration was made. In Maniram vs State of Madhya Pradesh (1994),5 the Supreme Court held: At paragraph 3: “…in a case of this nature, particularly when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor after duly being certifi ed by the doctor that the declarant was conscious and in senses and was in a fi t condition to make the declaration. These are some of the important requirements which have to be observed.” In Paparambaka Rosamma vs State of Andhra Pradesh (1999),6 the Supreme Court stressed that it was the doctor, not the magistrate, who is the competent judge of both consciousness and fi tness of mind. The distinction between those two elements was also emphasised: At paragraph 8: “In our opinion, in the absence of a medical certifi cation that the injured was in a fi t state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fi t state of mind at the time of making a declaration.” At paragraph 9: “In medical science, two stages namely conscious and a fi t state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fi t state of mind. This distinction was overlooked by the courts below.”

4 2007 (12) SCALE. 5 1994 (Supp) 2 SCC 539. 6 1999 (7) SCC 695. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |297 CHAPTER FOURTEEN

Both decisions were made by a three-judge Bench. Both were departed from by another three- judge Bench of the Supreme Court in Koli Chunilal Savji vs State of Gujarat (1999):7 At paragraph 7: “In the case of Maniram vs State of MP no doubt this court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certifi ed by the doctor that the declarant was conscious and in his senses and was in a fi t condition to make the declaration. In the said case, the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infi rmity and interfered with the judgement of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be truthful one and voluntarily given.” The Supreme Court, thus, upheld a conviction for murder based solely upon a dying declaration given without a medical certifi cation that the injured person was in a fi t state to make it. Ultimately, a Constitutional Bench of the Supreme Court in Laxman vs State of Maharashtra (2002),8 clarifi ed the law governing admissibility of dying declarations with astonishing care- lessness. Referring to its decision in Paparambaka’s case, the Constitutional Bench decided that the requirement for a doctor’s certifi cation that the injured person was in a fi t state of mind to make his declaration was a view “too broadly stated and is not the correct enunciation of law” (paragraph 5). They deemed the distinction between consciousness and fi tness of mind as a “hyper-technical view” and affi rmed Koli Chunilal’s case. Confessions A confession is a statement which is wholly or partly adverse to the person who made it. Confes- sions made to police offi cers are admissible under s15 TADA.9 Kartar Singh vs State of Punjab10 - a Constitutional Bench, decided the constitutionality of various provisions of TADA, enacted to deal with terrorism within India. The Act was passed against a backdrop of Punjab insurgency. It was allowed to lapse in May 1995 after intense criticism by human rights groups and ubiquitous evidence of abuse. However, cases instigated prior to that date continue to hold legal validity. The huge backlog of cases keep the issue of TADA alive in the Judicial System today. TADA jurisprudence started with the Supreme Court in Kartar Singh’s

7 1999 (9) SCC 562. 8 2002(6) SCC 710. 9 (the) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). Section 15. Certain confessions made to police offi cers to be taken into consideration- (1) Nothwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police offi cer not lower in rank than a superintendent of police and recorded by such police offi cer either in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or rules made thereunder: (2) The police offi cer shall, before recording any confession under Sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police offi cer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. 10 1994(3) SCC 569. |298 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE case, where it disregarded its duty as a Constitutional Court and took an Executive-like stance on terrorism. The Supreme Court neglected its intended role as a check and balance to Executive Power that all too readily crushes fundamental human rights when faced with issues of national security. Elements of the judgement fall roughly into two equally unacceptable categories: Category A: decisions that signifi cantly undermine the rights of the accused; and Category B: decisions that take a clear stand to protect those rights but have been so consistently ignored by inferior Bench- es in subsequent judgements that they have had no positive precedential impact. Category A: Section 15 TADA There is no more striking an application of defunct logic than the Learned Judges’ ruling on Section 15 of TADA, which makes confessions made to high-rank police offi cers admissible in evidence, regardless of provisions in the Evidence Act and the Code of Criminal Procedure which excludes them. The mere potential for abuse by police is suffi cient to rule out the admissibility of confessions made solely to police offi cers. Such confessions have been held inadmissible throughout the period of British rule and up to the enactment of TADA. The judges’ thought- proc- ess involved frank admissions that torture of the accused by the police is widespread in India: At paragraph 251: “… we cannot avoid but saying that we – with the years of experience both at the Bar and on the Bench – have frequently dealt with cases of atrocity and brutality practised by some overzealous police offi cers resorting to inhuman, barbaric, archaic and drastic methods of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on a few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police offi cers.” At paragraph 365: “It is heart-rending to note that day in and day out we come across with the news of blood-curdling incidents of police brutality and atrocities, alleged to have been committed, in utter disregard and in all breaches of humanitarian law and universal human rights as well as in total negation of the constitutional guarantees and human decency.” However, at paragraph 254, the Supreme Court held: “In view of the legal position vesting authority on higher police offi cer[s] to record the confession hitherto enjoyed by the judicial offi cer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should refl ect only the true and voluntary statement…” The combination of (1) the Supreme Court’s recognition that torture is the principle forensic tool of the police; and (2) their concurrent confi rmation of the power of senior police offi cers to take admissible confessions, is absurd. To overturn such a deeply entrenched principle, signifi cant evidence that showed senior police were less inclined to torture the accused would surely be required. No such evidence was presented to the Supreme Court and in fact, their own recent decisions demonstrate an increase in the use of torture and custodial violence. Justice K. Ramaswamy and Justice Sahai both made valiant and apt dissents:

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |299 CHAPTER FOURTEEN

Justice K. Ramaswamy At paragraph 383: “Section 25 [of the Evidence Act, which excludes confessions made to police offi cers] rests upon the principle that it is dangerous to depend upon a confession made to a police offi cer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion.” (page 724). At paragraph 399: “While the Code [the Code of Criminal Procedure] and Evidence Act seek to avoid inherent suspicion of a police offi cer obtaining confession from the accused, does the same dust not cloud the vision of superior police offi cer? Does such a procedure not shock the conscience of a conscientious man and smell of unfairness? Would it be just and fair to entrust the same duty by employing non obstante clause Section 15(1)? Whether mere incantation by employing non-obstante clause cures the vice of afore enumeration and becomes valid under Articles 14 and 21? My answer is “NO”, “absolute no, no.”...Conferment of judicial powers on the police will erode public confi dence in the administration of justice… It not only sullies the stream of justice at its source but also chills the confi dence of the general public and erodes the effi cacy of the rule of law.” At paragraph 406: It would, therefore, be clear that any offi cer not below the rank of the superintendent of police, being the head of the district police administration responsible to maintain law and order is expected to be keen on cracking down the crime and would take all tough steps to put down the crime to create terror in the heart of the criminals. It is not the hierarchy of offi cers but the source and for removal of suspicion from the mind of the suspect and the object assessor that built-in procedural safeguards have to be scrupulously adhered to in recording the confession and trace of the taint must be absent. It is, therefore, obnoxious to confer power on police offi cer to record confession under Section 15(1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confi dence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalised in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution.” (page 734). Justice Sahai also dissented, saying: At paragraph 442: “Killing of democracy by gun and bomb should not be permitted by a State but in doing so the State has to be vigilant not to use methods which may be counter-productive. Care must be taken to distinguish between the terrorist and the innocent. If the State adopts indiscriminate measures of repression resulting in obliterating the distinction between the offender and the innocent and its measures are repressive to such an extent where it might not be easy to decipher one from the other, it would be totally incompatible with liberal values of humanity, equality, liberty and justice. … Measures adopted by the State should be to create confi dence and faith in the government and democratic accountability should be so maintained that every action of the government be weighed in the scale of rule of law.” At paragraph 453: “A police offi cer is trained to achieve the result irrespective of means and method which is employed to achieve it. So long the goal is achieved the means are irrelevant

|300 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE and this philosophy does not change by hierarchy of the offi cers. A sub-inspector of the police may be uncouth in his approach and harsh in his behaviour as compared to a superintendent of police or additional superintendent of police or any higher offi cer. But the basic philosophy of the two remains the same. The inspector of police is as much interested in achieving the result by securing confession of an accused person as the superintendent of police. By their training and approach they are different. Procedural fairness does not have much meaning for them...Dignity of the individual and liberty of person – the basic philosophy of Constitution – has still not perco- lated and reached the bottom of the hierarchy as the constabulary is still not accountable to public and unlike British police it is highly centralised administrative instrumentality meant to wield its stick and spread awe by harsh voice more for the Executive than for the law and society.” At paragraph 454: “The defect lies not in the personnel but in the culture. In a country where few are under law and there is no accountability, the cultural climate was not conducive for such a drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitu- tion any confession to police offi cer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence...” At paragraph 455: .”..Section 15 of the TADA throws all established norms only because it is recorded by a high police offi cer. In my opinion, our social environment was not mature for such a drastic change as has been effected by Section 15. It is destructive of basic values of the constitutional guarantee.” Sadly, Justices Ramaswamy and Sahai were overruled by a 3:2 majority. As such, the Supreme Court, swept away a rule of law that governed criminal trials for over 100 years. Category B: Rule 15 of TADA (Prevention) Rules Rule 15 of the Terrorists and Disruptive Activities (Prevention) Rules, 1987, lays down in detail the method for taking and recording confessions, namely: the police offi cer must certify in writing that the confession was taken in his presence and that the record contains a full and true account of the confession and that it was voluntarily made. Referring to the Acts and Rules regarding confessions, the Supreme Court in Kartar Singh’s case held at paragraph 257: “We strongly feel that there must be some severe safeguards which should be scrupulously observed while recording a confession under Section 15(1) so that the possibility of extorting any false confession can be prevented to some appreciable extent.” At paragraph 263, those “severe safeguards” were set out. The guidelines assign a signifi cant scrutinising role to the chief metropolitan magistrate (CMM) or the chief judicial magistrate (CJM): .”..we would like to lay down following guidelines so as to ensure that the confession obtained in the pre-indictment interrogation by a police offi cer not lower in rank than a superintendent of police is not tainted with any vice but is in strict conformity with the well-recognised and accepted aesthetic principles and fundamental fairness. The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him; KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |301 CHAPTER FOURTEEN

The person from whom a confession has been recorded under Section 15(1) of the Act, should be produced before the chief metropolitan magistrate or the chief judicial magistrate to whom the confession is required to be sen[t] under Rule 15(5) along with the original statement of confession...without unreasonable delay; The CMM or CJM should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a medical ofﬁ cer...” Not only do the CMM or CJM have to “scrupulously record the statement” and “get his signature,” they also offer the accused a crucial chance to make a complaint if torture has been used to obtain the confession. However, the admirable stance of the Constitutional Bench plunges into irrelevance. Their un- equivocal ruling has been ignored by smaller Benches of the Supreme Court claiming that the safeguards and guidelines are merely directory, not mandatory. One such example is Jameel Ahmed vs State of Rajasthan.11 Here, a two-judge Bench of the Supreme Court reanalysed the admissibility of confessions under s15 TADA. The appellants rightly argued that a confession that had not been sent before the CMM or CJM was not admissible, as this obviated a mandatory step in Rule 15(5) of the TADA Rules. Without reference to the guidelines laid down above by the Constitutional Bench in Kartar Singh’s case, the inferior Bench held at paragraph 34: “Rule 15(5) does not ascribe any role to the CMM or the CJM of either perusing the said statement or making any endorsement or applying his mind to these statements. It merely converts the said courts into a post ofﬁ ce for further transmission to the designated court concerned, therefore, the object of the rule is to see that the statement recorded under Section 15 of the Act leaves the custody of the recorder of the statement at the earliest so that the statement has a safer probative value. In our opinion transmission of the recorded confessional statement under Section 15 of the Act to the CMM or the CJM under Rule 15(5) is only directory and not mandatory.” The lower Bench thereby downgraded the role of the CMM and CJM explicitly established by the Constitutional Bench in Kartar Singh. CONFESSIONS MADE TO POLICE OFFICERS ARE ADMISSIBLE UNDER S32 POTA Following the attacks on New York and Washington on 11 September 2001, rushed anti-terrorism legislation was enacted all over the world. India responded with the Prevention of Terrorism Act 2002 (POTA). In Kartar Singh’s case, the Supreme Court decided the constitutional validity of TADA 1987. Even though TADA was permitted to lapse in May 1995, due to widespread abuse by the police and security forces, the ratio of Kartar Singh’s case still informed the Supreme Court’s analysis of POTA 2002 in the case of Peoples Union for Civil Liberties (PUCL) vs Union of India (2004).12 The judgement was handed down on 16 December 2003 in the midst of strong protests against the misuse of TADA and POTA and their persistent application to innocent people.

11 2003(9) SCC 673. 12 2004 (9) SCC 580. |302 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

Like s15 TADA, s32 POTA makes confessions given to senior police ofﬁ cers admissible in evidence. We have already dealt with the absurdity of such a law above, in Justice Ramaswamy and Justice Sahai’s articulate dissents in Kartar Singh’s case. Nevertheless, POTA does give a statutory footing to the guidelines laid down by the Constitutional Bench in Kartar Singh’s case regarding the role of the magistrate. Section 32(4) and (5) POTA requires the maker of the confession to be sent before a magistrate. The Supreme Court in PUCL held: At paragraph 63: “While enacting this Section, Parliament has taken into account of all the guidelines, which were suggested by this Court in Kartar Singh’s case (supra)...In our considered opinion the provision that requires producing such a person before the magistrate is an additional safeguard. It gives that person an opportunity to rethink over his confession. Moreover, the magistrate’s responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer.” So, the Supreme Court has applauded the guidelines laid down in Kartar Singh’s case, recognising the magistrate’s role as a valuable safeguard in relation to s32 POTA. And yet, in relation to an almost identical provision (s15 TADA), two-judge Benches of the Supreme Court have decided that those same guidelines were merely “directory and not mandatory”(Note 11 supra). That such different rulings should apply to largely identical police powers illustrates the chaos of criminal law jurisprudence. The Supreme Court noted at the beginning of the hearing that: At paragraph 15: “The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. Here comes the role of law and court’s responsibility. If human rights are violated in the process of combating terrorism, it will be self-defeating.” At paragraph 22:“Another issue that the petitioners have raised at the threshold is the alleged misuse of TADA and the large number of acquittals of the accused charged under TADA. Here we would like to point out that this Court cannot go into and examine the “need” of POTA. It is a matter of policy. Once legislation is passed the government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a Statute unconstitutional.” (page 598). Just as in Kartar Singh’s case, the Supreme Court chose to ignore the well-known reality of police practice in India. The PUCL decision was not made in the context of a “mere possibility of abuse.” Documented and indisputable evidence of persistent and rampant abuse by police ﬂ owed from the rising number of TADA and POTA acquittals and newspaper reports. The Supreme Court knew that human rights were indeed being violated in the process of combating terrorism. The petitioners demonstrated that the Statute and its abusive application were so intrinsically interwoven that it was impossible for the Court to deal with one and not the other. Was it permissible for the Supreme Court to dismiss the challenge and ignore the blatant evidence of widespread misuse of the Statute in such a summary manner? Ultimately, the Government of India itself accepted that POTA was widely misused and recognised public dissatisfaction with the Act. The Act was repealed. POTA was banished, as was TADA, to a black period of criminal law juris-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |303 CHAPTER FOURTEEN prudence. Yet the Supreme Court, in regard to both oppressive Statutes, awarded constitutional approval. And, criminal cases initiated under these Statutes continue to be heard today. Section 15 TADA contaminates the rules of confession in normal criminal law Section 15(1) TADA clearly states that confessions made under that section “shall be admissible in the trial of such person for an offence under this Act.” The legislation does not widen the admissibility of s15 TADA confessions to criminal charges under other Acts, as correctly interpreted by the Supreme Court in Bilal Ahmed Kaloo vs State of A P. 13 In that case, Mr Kaloo was prosecuted under both TADA and the Indian Penal Code (IPC). The designated court acquitted Mr Kaloo of the TADA charges but found him guilty of sedition under the IPC. The confessional statement given by Mr Kaloo under s15 TADA was correctly held to be inadmissible in relation to the IPC charge. However, the wisdom of the Supreme Court in Bilal Ahmed Kaloo was overruled in the Rajiv Gandhi assassination case - State vs Nalini.14 At paragraph 83, the three-Judge Bench held: “Section 15 of the TADA enables the confessional statement of an accused made to a police offi cer specifi ed therein to become admissible “in the trial of such a person.” It means, if there was a trial of any offence under TADA together with any other offence under any other law, the admissibility of the confessional statement would continue to hold good even if the accused is acquitted under TADA offences.” Distracted by public thirst for convictions in the wake of a national tragedy, the Judges in Nalini’s case were evidently unable to read to the end of the sentence in s15 TADA, to cover the words “for an offence under this Act.” After Nalini’s case, a three-judge Bench of the Supreme Court doubted the correctness of the decision: “We are, however, constrained to record our doubt as regards the state of law as declared by the 3-judge Bench of this Court in Nalini (supra). The issue, therefore, is whether the confessional statement would continue to hold good even if the accused is acquitted under TADA offences and there is a clear fi nding that TADA Act has been wrongly taken recourse to or the confession loses its legal effi cacy under the Act and thus rendering itself to an ordinary confessional statement before the police under the general law of the land. Nalini (supra), however, answers this as noticed above, in positive terms but we have some doubts pertaining thereto since the entire Justice Delivery System is dependent upon the concept of fairness. It is the interest of justice which has a pre-dominant role in the criminal jurisprudence of the country. The hallmark of justice is the requirement of the day and the need of the hour. Once the court comes to a defi nite fi nding that invocation of TADA Act is wholly unjustifi ed or there is utter frivolity to implicate under TADA, would it be justifi ed that Section 15 be made applicable with equal force as in TADA cases to book the offenders even under the general law of the land. There is thus doubt as noticed above!!”

13 (1997) 7 SCC 431. 14 (1999) 5 SCC 253. |304 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

The matter was transferred eventually to a fi ve-judge Constitutional Bench in Prakash Kumar vs State of Gujarat.15 They irresponsibly upheld the ratio of Nalini’s case through exquisitely poor construction of the TADA legislation. Confessions to a police offi cer were only made admissible in evidence under TADA to meet the exigencies of terrorism in India. This shocking interpretation of law upheld in Prakash Kumar’s case has established a critically unjust state of affairs in the Criminal Justice System: Even if TADA offences are not substantiated, the associated confessional statements continue to be admissible in evidence for prosecution under normal criminal law. Had TADA not been applied, such evidence would have remained inadmissible under the Code and the Evidence Act. This judgement has an obvious effect: It encourages the police to apply TADA to ordinary criminal law matters and indulge in dispensations from procedural safeguards. This much was fore- warned in Kartar Singh’s case: At paragraph 352: “It is true that on many occasions, we have come across cases wherein the prosecution unjustifi ably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating offi cers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police.” This passage was indeed noted in Prakash Kumar’s case, but naively dismissed at paragraph 44: “In our view the above observation [in Kartar Singh’s case] is eloquently suffi cient to caution police offi cials as well as the presiding offi cers of the designated courts from misusing the Act and to enforce the Act effectively and inconsonance with the legislative intendment...” Confessions used against the co-accused Imagine the following scenario: X and Y are accused of murder. X confesses to the murder and also implicates Y as an accomplice. Y does not confess and maintains his innocence. To what degree should X’s confession be relied on in evidence supporting the prosecution’s case for Y’s conviction? In the three-judge Bench decision of the Supreme Court in Kashmira Singh vs State of Madhya Pradesh (1952),16 it was noted that a confession against a co-accused was “obviously evidence of a very weak type” (paragraph 8) and “such a confession cannot be made the foundation of a conviction and can only be used in “support of other evidence”. (paragraph 9). This was followed by three-judge Benches in Nathu vs State of UP (1956)17 and in Ram Chandra vs State of UP (1957)18 where the Court held that “confession of a co-accused can only be taken into consideration but is not in itself substantive evidence.” All of these cases were approved and their ratios re-iterated by the Constitutional Bench of the

15 (2005) 2 SCC 409. 16 AIR 1952 SC 159. 17 AIR 1956 SC 56. 18 AIR 1957 SC 381. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |305 CHAPTER FOURTEEN

Supreme Court in Haricharan Kurmi vs State of Bihar (1964)19 where it was held: At paragraph 13: “...in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilty which the judicial mind is about to reach on the said other evidence.” At paragraph 17: “it has been a recognised principle of the administration of criminal law in this country for over half-a-century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.” Directly contrary to this line of binding precedent stands an outrageous decision of a two-judge Bench in K. Hashim vs State of Tamil Nadu20 where the Supreme Court held: At paragraph 25: “If it is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice.” Recording of confessions In normal criminal law, in other words, non-TADA and non-POTA offences, ss164, 281 and 463 of the Code of Criminal Procedure (CrPC) govern the recording of confessions. Section 164 CrPC stipulates that confessions must be recorded in a speciﬁ c manner by a magistrate. Amongst various safeguards is s164(2) which stipulates that the magistrate shall explain to the person making the confession that he is under no compulsion to make it, and that if he does make a confession, it may be used against him. The magistrate must also believe that the confession is voluntarily made. All dialogue between the magistrate and the maker of the confession must be recorded by the magistrate at the time, pursuant to s281(2), which applies by virtue of s164(4). This means that when the magistrate warns the confession maker under s164(2), a record of the questions and answers which (a) constitute that warning; and (b) substantiate the magistrate’s belief that the confession is voluntary, must be made. S463 applies when ss164 and 281 have not been complied with. It cures defects in the procedure used by the magistrate and permits admission of the confession in evidence if “such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded.” In the case of Nazir Ahmed vs King Emperor (1936)21 the Privy Council held that confessions recorded in any way other than those speciﬁ ed by s164 of the Code were not admissible. This was on the administrative principle that statutory powers were to be exercised in the manner prescribed by Statute, or not at all. In that case, the magistrate had not recorded the confession as required by law and instead tendered his oral evidence of the confession made by the accused. The confession was held inadmissible and the accused was acquitted. This decision was

19 AIR 1964 SC 1184. 20 2005(1) SCC 237. 21 AIR 1936 PC 253. |306 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE followed by the three-judge Bench in State of UP vs Singhara Singh (1964).22 In Tulsi Singh vs State of Punjab(1996),23 a magistrate recorded a confession without any record of fulfi lment of the two steps of s164(2), other than his oral evidence at the trial. The two-judge Bench of the Supreme Court admirably rejected the validity of the confessional statement holding: At paragraph 5: “Though the learned magistrate testifi ed that before recording the confession he satisfi ed himself that the accused (appellant) was making a voluntary statement and that after giving due caution he recorded it, the confession does not anywhere indicate as to whether before recording the same he gave him the requisite caution and put questions to satisfy himself that it was being made voluntarily. These are the basic pre-requisites for recording a confession under Sub-section (2) of Section 164 CrPC and a mere endorsement in accordance with Sub-section (4) after recording it would not fulfi l the requirements of the former sub-section. Since none of the two requirements of Section 164(2) CrPC has been complied with we are left with no other alternative to hold that the Special Court was not at all justifi ed in entertaining the confession as a voluntary one.” However, recent smaller Benches of the Supreme Court have disregarded the precedent set in Nazir Ahmed’s case and Tulsi Singh’s case to a such a degree that the safeguards of s164 CrPC may as well be repealed. These slack judgements have relied on a wide application of s463 CrPC, using it to cure extensive defects in the confession recording procedure. The very purpose of such a procedure is to increase the likelihood that confessions are voluntarily made and can therefore be relied upon. For example, the two-judge Bench of the Supreme Court in Ram Singh vs Sonia (2007)24 admitted a confession in evidence when the magistrate had failed to record that he had asked the maker of the confession whether she was “under any pressure, threat or fear” to make the confession. Instead, the magistrate gave oral evidence in the court stating that he had asked her and had only taken the statement once satisfi ed that the confession was voluntary. At paragraph 20: “Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW.62 [the magistrate] having stated in his evidence before the Court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfi ed that A- 1 [the maker of the confession] was not under any pressure from any corner.” At paragraph 21: In our view, Nazir [supra] has no application to the facts of the present case as the failure of PW.62 [the magistrate] to record the question put and the answer given in the confessional statement has not caused prejudice to the accused in her defence and is a defect that is curable under Section 463. This fi nding directly contradicts the clear ratios in Tulsi Singh’s and Nazir’s case. Yet the Bench held:

22 AIR 1964 SC 358. 23 1996 (6) SCC 63. 24 2007 (3) SCC 1. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |307 CHAPTER FOURTEEN

At paragraph 23: .”..decisions relied upon by the learned counsel for the accused in the cases of Nazir (supra),...and Tulsi (supra) are of no help to the accused.”

Extra-judicial confession How much weight should be given to a statement from a prosecution witness claiming that the accused confessed to him that they had committed the crime? Such a confession, in the absence of a magistrate or any other ostensibly independent party, is not a solid foundation for a conviction. A long line of binding precedents from the Supreme Court has held, as in the two-judge Bench of Rahim Beg vs State of UP (1972)25 that, “the evidence of extra-judicial confession is a weak piece of evidence” (Paragraph 18). However, the rapid regression of this prudent standard can be traced through the following judgements. A two-judge Bench in Piara Singh vs State of Punjab (1977)26 held that At paragraph 10: “The learned sessions judge regarded the extra-judicial confession to be a very weak type of evidence and, therefore, refused to rely on the same. Here the learned sessions judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated.” The potential injustice and room for abuse of uncorroborated extra-judicial confessions is obvious. Nevertheless, in Ram Singh vs Sonia (2007),27 the Supreme Court cited Madan Gopal Kakkad vs Naval Dubey (1992),28 and interpreted it as holding that: At paragraph 42: “the extra-judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.” The judges did not consider how difﬁ cult it is to actually establish, beyond reasonable doubt, the absence of coercion in its many forms. The alarming tendency of the superior courts to upgrade the weighting of extra-judicial confessions to that of substantive evidence in criminal convictions has further undermined the rights of the accused. Lying witnesses In case after case, the Supreme Court has rightly held that if a witness is found to be lying, then placing any reliance on his evidence, while at the same time rejecting the discredited part, would be very hazardous. This follows the well-regarded legal maxim: “falsus in uno, falsus in omnibus.” The notion of separating the wheat from the chaff is alien to criminal law jurisprudence. It cannot be used in the context of lying or exaggerating witnesses and certainly not in the case

25 1972 3 SCC 759. 26 1977 (4) SCC 452. 27 2007 (3) SCC 1. 28 1992 (3) SCC 204. |308 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE of witnesses whose testimony has been found to be substantially false. This used to be the Supreme Court’s position. In the case of RP Thakur vs State of Bihar (1974),29 the Supreme Court took the admirably scepti- cal approach to a witness found to be lying: At paragraph 6: “If Nakuldeo could involve one person falsely, one has to fi nd a strong reason for accepting his testimony implicating the others.” Similarly in Suraj Mal vs State (Delhi Administration) (1979),30 the Supreme Court held: At paragraph 2: “It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses…In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible.” This approach mirrors that of most democratic jurisdictions, where the evidence of untrustworthy witnesses would never form the basis of a conviction. It would be discarded in its entirety. However, not in modern India. In their desire to boost conviction rates, the Supreme Court has negligently increased the law’s tolerance of lies and embellishments in witness statements. In their view, such defects no longer taint the admissibility of witness statements brought against the accused in criminal trials. In SA Gaffar Khan vs VR Dhoble (2003)31 the Supreme Court held: At paragraph 26: “The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars…It is merely a rule of caution… The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main… The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate an exaggeration, embroideries or embellishment.” (Page 764). In Gangadhar Behera & Ors vs State of Orissa (2002),32 the Supreme Court held that: At paragraph 16: “Even if a major portion of the evidence is found to be defi cient, in case residue is suffi cient to prove guilt of an accused, notwithstanding acquittal of a number of other co- accused persons, his conviction can be maintained.” Sealing of articles associated with the crime Historically, the Supreme Court has applied common sense when setting the standards required for sealing weapons and other articles recovered at crime scenes. For instance, in Amarjit Singh

29 1974 (3) SCC 664. 30 1979 (4) SCC 725. 31 2003 (7) SCC 749. 32 2002 (8) SCC 381. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |309 CHAPTER FOURTEEN vs State of Punjab (1995)33 a three-judge Bench of the Supreme Court decided that sealing of weapons must be done on the spot by the investigating offi cer, otherwise it cannot be relied upon in evidence. The Supreme Court overturned a conviction under s5 TADA: “The conviction was reversed on the ground that the non-sealing of the revolver at the spot is a serious infi rmity because the possibility of tampering with the weapon, which was crucial evidence, cannot be ruled out.” This well-established rule was discarded by a two-judge Bench of the Supreme Court in State of Maharashtra vs Bharat Chaganlal Raghani & Ors. (2001).34 Once again, a long line of confl icting judgements were ignored. The case dealt with a contract killing of two prominent businessmen in Mumbai. Pistols and AK assault rifl es allegedly recovered from the accused were displayed, unsealed, at a press conference. The Supreme Court criticised the Trial Court’s wise approach as “technical”: At paragraph 61: “Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of a molehill on such a frivolous ground.” Thereafter in Ganesh Lal vs State of Rajasthan (2002)35— a similar observation of law is recorded: At paragraph 8: “In such a situation, merely because the articles were not sealed at the places of seizure but were sealed at the police station, the recovery and seizure do not become doubtful.” Similarly in Rajendra Kumar vs State of Rajasthan (2003),36 where a submission was made by counsel for the accused that bangles allegedly recovered were not sealed, the Court held: At paragraph 7: “We do not think much importance can be attached to the fact that these bangles were not sealed at the time when recovery was made.” First information report An FIR is produced when a complaint is made at a police station regarding the commission of an offence. It is the fi rst step in initiating criminal proceedings and a vital part of prosecution evidence. Procedural safeguards are required to prevent abuse of FIRs. 1. Slackening of the S157 CrPC procedural safeguard When an offi cer in charge of a police station receives information regarding the commission of an offence and records an FIR, Section 157 CrPC requires him to “forthwith send a report” to the Magistrate. This is designed to safeguard against the police creating a false FIR in retrospect, after deliberation and consultation. The Supreme Court has consistently recognised that a suspicion of retrospective FIRs arises when there is delay in dispatch of the report to the magistrate.37

33 1995 (Supp) 3 SCC 217. 34 2001 (9) SCC 1. 35 2002(1) SCC 731. 36 2003 (10) SCC 21. 37 AIR 1976 SC 2423; AIR 1980 SC 638. |310 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

In Meharaj Singh vs State of UP,38 the Supreme Court dealt with a suspicion that the FIR had been “ante-timed” to artifi cially frame the accused: At paragraph 12: “FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local magistrate. If this report is received by the magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local magistrate.” However, in State of J&K vs S. Mohan Singh (2006),39 the police have been given unreasonable benefi t of the doubt. In that case, the crime is said to have occurred on 23.07.1985 at 6 pm The FIR was lodged at 7.20 pm and a copy of the FIR was received by the Magistrate on the next day at 12.45 pm. The Supreme Court held: At paragraph 10: “In our view, copy of the fi rst information report was sent to the Magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the magistrate.” Similarly in Anil Rai vs State of Bihar (2001),40 the Supreme Court introduced a new concept of “extraordinary delay.” Without reference to the previous case law, the Court altered the law surrounding s157 CrPC in the following way: At page 3174: “Extraordinary delay in sending the copy of the FIR to the magistrate can be a circumstance to provide a legitimate basis for suspecting that the fi rst information report was recorded at much later day than the stated day affording suffi cient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under S157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused, the omission by the police to submit the report does not vitiate the trial.” 2. Names of witnesses omitted in the FIR The Supreme Court has held repeatedly that if the name of the witnesses are omitted in the FIR, unless a plausible explanation is given, the omission could be treated as a ground to doubt the

38 1994 (5) SCC 188. 39 2006 (9) SCC 272. 40 AIR 2001 SC 3173. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |311 CHAPTER FOURTEEN evidence. In Marudanal Augusti vs State of Kerala (1980),41 the Supreme Court acquitted the accused because, though it was submitted in the Court that prosecution witnesses had seen the assault, they were not mentioned at all in the FIR. “The FIR contains graphic details of the entire occurrence and care has been taken not to omit even the minutest detail. The names of PWs 4, 5 and 6 as having witnessed the assault are not mentioned at all in the FIR... any number of witnesses could be added without there being anything to check the authenticity of their evidence.” However, in Rajkishore Jha vs State of Bihar (2003),42 the Supreme Court held: At paragraph 10: “The High Court has noted that the names of witnesses do not appear in the fi rst information report. That by itself cannot be a ground to doubt their evidence.” Arrest of females Traditionally, women cannot be arrested at night, nor in the absence of a female constable. The object of these safeguards is clearly to protect the woman from abuse at the hands of male policemen. In another staggering gift of power to the police at the expense of the accused, the Su- preme Court in State of Maharashtra vs Christian Community Welfare Council of India (2003),43 withdrew these restrictions: At paragraph 9: “Herein we notice that the mandate issued by the High Court prevents the police from arresting a lady without the presence of a lady constable. The said direction also prohibits the arrest of a lady after sunset and before sunrise under any circumstances. While we do agree with the object behind the direction issued by the High Court in sub-para (vii) of the operative part of its judgement, we think a strict compliance with the said direction, in a given circumstance, would cause practical diffi culties to the investigating agency and might even give room for evading the process of law by unscrupulous accused. While it is necessary to protect the female sought to be arrested by the police from police misdeeds, it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises, therefore, we think this direction issued requires some modifi cation without disturbing the object behind the same. We think the object will be served if a direction is issued to the arresting authority that while arresting a female person, all efforts should be made to keep a lady constable present but in the circumstances where the arresting offi cers are reasonably satisfi ed that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such arresting offi cer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable.” Chance witnesses

41 1980 (4) SCC 425. 42 2003 11 SCC 519. 43 2003 (8) SCC 546. |312 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

A witness who just happens to be present at a crime scene, but has no other apparent connection, is known as a “chance witness.” Ever since the Supreme Court decision of Puran vs State of Punjab,44 testimony from chance witnesses has been viewed with caution, due to the frequent discovery that they have either been recruited by the accused, or have vested interests in the outcome of the case. In Puran, a three-judge Bench held, at paragraph 4: “In cross-examination, he [the chance witness] admitted that there was a dispute between him and the accused's father about a wall built by him on a site claimed by the father of the accused...In these circumstances it could not be said that the sessions judge was in error when he rejected the evidence of this witness and described him as a chance witness. Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence.” In State of UP vs Farid Khan,45 a two-judge Bench of the Supreme Court took the contrary view, neglected preceding case law and accepted the evidence of a chance witness. They focused more on the fact the witness had a criminal record, and held that if his evidence was corroborated by other witnesses, that criminal background was not important. The Supreme Court made their startling reversal at paragraph 4: .”..the High Court disbelieved his evidence on two counts – fi rstly on the ground that he was previously convicted in a criminal case and was sentenced to four years’ imprisonment. This, according to the High Court, was a valid ground to discard his evidence. Another ground to disbelieve the evidence of PW 2 Sharif was that he must have been a chance witness and his explanation that he was going to the shop of Safi may not have been true as there were several other “beedi” manufacturers in that locality nearest to his house. Of course, the evidence of a witness, who has got a criminal background, is to be viewed with caution. But if such an evidence gets suffi cient corroboration from the evidence of other witnesses, there is nothing wrong in accepting such evidence. Whether this witness was really an eye witness or not is the crucial question. If his presence could not be doubted and if he deposed that he had seen the incident, the court shall not feel shy of accepting his evidence.” Standard of proof lowered The Constitutional Bench in Haricharan Kurmi vs State of Bihar (1964),46 categorically upheld the standard of proof in criminal law: “In criminal trials, there is no scope for applying the principle of moral conviction.” (Page 1184). In a disturbing departure from the entrenched and internationally recognised standard of proof of “beyond reasonable doubt” for criminal cases, the Delhi High Court lowered it to that of “moral certainty.” A two-judge Bench of the Supreme Court noted this outrageous dictum but refrained from comment when it had the chance in Alamgir vs State (2003):47

44 AIR 1953 SC 459. 45 2005 (9) SCC 103. 46 AIR 1964 SC 1184. 47 2003 1 SCC 21. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |313 CHAPTER FOURTEEN

At paragraph 11: “Incidentally, the High Court did emphasise on the true and correct meaning of the phraseology “reasonable doubt” to be attributed thereon and it is on this score, the High Court records: “Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge’.” At paragraph 12: “We are, however, not expressing any opinion with regard thereto.” Conclusion India’s Criminal Justice System is in dire need of reform. Reform requires transparency, consultation and deliberation. It is not up to individual judges to depart from decades of well established law and procedure. Their sloppiness brings about change in an arbitrary and ad hoc fashion that undermines criminal law jurisprudence itself. Reform of the Criminal Justice System should not mean a slackening of standards. It demands a higher quality of police and public prosecutors that are able to meet the criteria set by the Supreme Court in its earlier judgements. Sadly, the Judiciary seems resigned to the fact that the police and public prosecutors will continue to be inept and corrupt. They have accepted that police standards of investigation will remain appallingly low and have merely focussed on speeding up the system and increasing the rate of convictions nonetheless. The Judiciary has lost a marvellous opportunity to radically reform the quality of police investigations. Instead, the high standards of criminal law jurisprudence have simply been downgraded to meet those set by the police. Such regression has endangered both the accused and the public at large. The risk of indiscriminate arrests, misplaced prosecutions and wrongful convictions using coercive methods is higher than ever. Whatever little desire there was within the police force to increase their professionalism has dissipated in this climate, free from judicial pressure. The Indian Judiciary must urgently recall its constitutional role. It must uphold the rule of law, provide a check and balance on the Executive and protect human rights. The Indian government must urgently initiate the legislative agenda required to reform the Criminal Justice System, in a responsible and consultative manner. This must include legislative repair of the damage done by the Judiciary to criminal jurisprudence as demonstrated in this article. The people of India deserve nothing less.

|314 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation HAIL BAIL, NO JAIL!

here was a time when the principle “bail not jail” guided the prison administration in this country. Now it is the opposite – “jail not bail.”The original principle was based on an un- Tderstanding that the vast majority of those incarcerated came disproportionately from the poor classes, particularly those of Dalits and Muslims. The Criminal Justice System was slanted against the poor and the doing of justice, in a substantial sense, was nigh impossible to lessen the discrimination against accused persons. It was felt that they should not be put behind bars unless it could be shown that he would abscond or otherwise interfere with the administration of justice. All this has now been thrown to the winds. In a mad frenzy, policemen and judges are putting accused persons behind bars in ever increasing numbers and keeping them there by denial of bail. The overwhelming majority of the prison population are undertrials. They will stay there for years waiting for their trials to begin. Many of the persons, languishing in jails, are guilty of bailable offences. This is because legal aid, from the point of arrest guaranteed in many decisions of the Apex Court, is not available. Thousands of accused persons languish in jail despite being granted bail because their surety amounts are too high. As a result, the prisons are over populated by 250 percent. In some prisons, persons sleep in shifts occupying the 3 x 6 feet space on the ﬂ oor reserved for them. Overcrowding, to this extent, is per se cruel, inhuman and degrading. No undertrial symbolises this perverse fascination of the State − with the unnecessary incarceration of people awaiting trial − than Dr Binayak Sen, a paediatric specialist who was working in the most backward Tribal regions of Chhattisgarh, when he was arrested on the “terrorist” charge that he had carried a letter, from a Maoist in prison, to some person outside. Dr Sen had always functioned openly as a doctor. The police raid of his premises found nothing incriminating. He stays with his wife and children in Raipur. There was no chance whatsoever of him absconding. He would have cooperated fully with the prosecution. But he has now been in jail for about a year. In jail, the authorities gave him a difﬁ cult time when he tried to get reading material. His children have lost their father, the Tribals have lost their doctor and the human rights movement has lost its leader. And the nation has lost its sense of right and wrong. What should be done? Piecemeal reforms will have no impact because the rot is very deep and pervasive. What is needed is radical reform but pending that the State could at least make a radical one-time gesture. On Republic Day, or Independence Day, the State should release tens of thousands of poor persons, Dalits, Muslims and women accused in offences other than those of grave crimes. A large-scale release of women, accused or convicted of the offence of murdering their husbands, could be done. A study of the women, languishing in prison, will show

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |315 CHAPTER FOURTEEN how unjust our Criminal Justice System is. Many have killed their husbands as a result of the “battered women’s syndrome” where the husband would come home drunk and beat up his wife and children day after day. How many women languish in Indian prisons today on the charge of murder in failed attempts to commit suicide where the babies in their arms perished and they survived? How many Dalits are in jail resisting atrocities and the forcible taking of their lands? A sociological study, of those languishing in prisons, will afﬁ rm what everybody knows : that the Criminal Justice System victimises the victim. That the rich can get away with every conceivable crime by bribing the police and the prosecutor is common knowledge. If the prison system was made to terrorise the working people, it has succeeded in doing so. It is perceived as an engine of oppression. Like the Indians feared the British, the poor today fear the Indian Criminal Justice System.

–Editorial, Combat Law March-April 2008

|316 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ROT IN THE PRISONS

he level of barbarism, in terms of a nation’s treatment of its prisoners, is perhaps more uniform than we Indians expect. Developed and developing countries alike treat their convicts Twith a kind of depravity, which speaks in volumes about the nature of contemporary civilisation and their attitude towards fellow human beings. Rape, buggery, torture, custody without legal sanction, bars and fetters, detention far in excess of the sentence, solitary confi nement, lunacy, the brutalising of children, women and casuals, drug traffi cking and prostitution rackets run by the superintendents are but the daily routine of prison life. Gouging out eyes, as in the Bhagalpur blinding case, or the pushing of batons up prisoner rectum, as in Batra’s case, is perhaps Sunday’s schedule. The State, through law and lathi, has made the prison system a no-exit situation, shrouded in secrecy and despair. And while the press, the public and social activists are debarred, the courts turn a blind eye. Nothing is done about prison research while crores of rupees are spent in esoteric research of dubious standards with manuscripts thrown into the dustbin after the degree is awarded. As a consequence, the criminalisation of the prison administration proceeds apace and is the main factor contributing to the hardening of the offender and to the physical and psychological breakdown of inmates. Apart from the human rights issue, the Indian State has such little intelligence that it cannot comprehend that, in purely bourgeois terms, it is neither economically feasible nor practical to have such a large part of the population fettered and decapacitated. Judicial reforms have been much too slow. In the 1980s, it merged with the forenso-personal history of one man who was associated with the struggle for civil liberties and human rights − Krishna Iyer − a former Justice of the Supreme Court who, even after retirement, championed the cause with renewed fervour. His decisions describe his struggle against the tide of colonial prison regulations and a defi ant lower Judiciary not only unwilling to accept his views, but also uniformly subservient to the prison administration and the police. In the 70s and early 80s, he transformed Indian prison jurisprudence. A few other judges, inspired by him, contributed to this change. By the time of his retirement in the mid- 80s , he had led India through a decade of forensic change. But he left sad and embit- tered when he noticed, in powerless retirement, the fl outing of his decisions by the decision of criminals in uniform. The passage of time settles all things and India returned to its normal state – the eccentric has passed on. The ebb tide set in. Whereas the Court had, in the cases of Hussainara Khatoon and Motiram, spoken against high bail amounts for poverty stricken accused and had recommended their en-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |317 CHAPTER FOURTEEN largement on bail on personal bond and even without sureties, today millions of people are jailed, pending trial, because they are either too illiterate to apply for bail or too poor to furnish the bail amount. Notwithstanding Hoskot’s case, legal aid remains on paper with more money spent on committees, reports and seminars than on legal aid itself. Sheela Barse’s case likewise indicates the fl agging interest in public interest matters. Now, the right of the press to interview prisoners has been couched in a language as vague as to practically operate against the press. Despite Khan’s case, prisoners are often denied access to newspapers and books. Despite Walcott’s case the awarding of prison punishments is like the emperor’s fi at. Despite Mallik’s case children are brutalised at par with adults. The International Year of the Child saw seminars organised and fi lms made but no children were released. All the recommendations, laid down in Batra’s case and in Kaushik’s case, are ignored. Over- crowding has increased many times over. The board of visitors is a bloody farce. The Prison Manual, and other regulations, are kept top secret and even defending advocates fi nd it impossible to lay their hands on these documents. Liberal visits, by family members, depend on bribe money. The ombudsmanic task of policing the police, that Krishna Iyer advocated, is now an impossibility. The standard minimum rules for treatment of prisoners are not only not followed but cannot be found. Section 235(2).248(2) of the Criminal Procedure Code, in respect of more humane sentences, is overlooked despite Giasuddin’s and Santa Singh’s case. Poverty stricken, indigent debtors are jailed, despite the Varghese case. Case convicts perform slave labour on notional or illusory wages, inspite of the prison reforms regarding enhancement of wages. If the Nandini Satpathy case is a measure of a government’s real refi nement, what would be left to say of tyranny. Censorship of correspondence, contrary to the directions in Madhukar Jambhale’s case, thrive; solitary confi nement, contrary to the directions in Sunil Batra’s case, thrive. Likewise, bar fetters are commonly used. And the accused are tied together like cattle and paraded to court through the streets in defi ance of the decision in Shukla’s case. The little Hitler, found lingering around Tihar Jail in Batra’s case, is now fully grown and well fed. Despite Sah’s and Hongray’s case compensation is rarely awarded. In the face of Veena Sethi’s case, mentally disturbed persons are maltreated and rendered insane. The “hope and trust,” placed in the prison administration and the police by the Supreme Court, have turned out to be a joke. Even after Barse’s case women’s rights are not implemented. Despite Nabachandra’s case remand is done as a matter of rote. Nothing changes in India – ever. As we age, Krishna Iyer’s passions recede in the memory of Bench and Bar. A new conservatism has taken over. Once again Judicial apathy and unconcern fuel prison sadness. His decisions are largely, therefore, of academic interest. Perhaps the only merit of the decisions is, as Justice Hughes once said, that it is “an appeal to the brooding spirit of the law [and] to the intelligence of a future day.” They display certain common trends and characteristics. Firstly, that judicial standards, in human rights, are uniformly pathetic; and secondly that judges, in India, are universally unwilling to punish prison offi cials and policemen even in the face of cast iron evidence of major offences committed by them. Judicial reluctance, administrative callousness and the absence of any State recognition of white

|318 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE collar crime takes India rapidly towards the precipice where the working class ﬁ nd themselves brutalised and isolated and the justice system is seen by all – as it essentially is – as a class weapon perpetually perpetrating injustice. As this happens the story foretold by Krishna Iyer, in Veena Sethi’s case, may well come true; “One day the cry and despair of large number of people would shake the very foundation of our society and imperil the entire democratic structure. When that happens we shall have only ourselves to blame.”

–Combat Law July-August 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |319 INDIA NEEDS TO URGENTLY RECONSIDER ITS POSITION ON THE DEATH SENTENCE

our recent capital cases brought to the fore the need for India to urgently reconsider its position on the death sentence and to abolish it once and for all. The Parliament attack Fcase saw one of the accused seeking legal aid but unable to pay for a lawyer. Right from the beginning, he gave the court names of prominent advocates he would like to have to represent him. Two declined and the third was not asked. He was then given a legal-aid lawyer with whom he entered into a disagreement and he asked the court to discontinue with that person. The court declined saying that the amicus was for the beneﬁ t of the court. He went unrepresented. The amicus attempted some sort of a defence but he was contradicted by the accused at critical moments and these developments seriously prejudiced the accused. The amicus then told the court that he wanted to discontinue but was not permitted to do so. He carried on reluctantly. He missed the trial court dates at times. He did not meet his client in jail. It is possible that he did not believe in the defence of his client and did not have the heart to proceed. His cross-examination was at times casual. He adopted the arguments of counsel for the co-accused though the factual situation was different. He did not submit written arguments and did not cite case law. Inadmissible evidence, seriously prejudicing the accused, went on record without demur. The accused, a surrendered militant, set out in his defence that he had been tortured by the Army and forced to do certain things that brought him onto the fringe of the conspiracy to attack Parliament. This defence was not properly brought on record. This is how he was convicted and sentenced to death. This was also a classic case of trial by media. The accused was chained to a chair in the police station and was asked to confess before the national press. His confession, entirely illegal and inadmissible, was broadcast on prime time television. From that moment onwards, he was guilty as hell as far as the people of India were concerned. No one would understand the subtleties of the rules governing the admissibility of evidence in a criminal trial. What could a criminal judge do after this? Were he to acquit, there would be a national uproar and it would reinforce the general propaganda done by the police against the Judiciary, that the latter, with its exaggerated sense of justice, are letting criminals go scot-free. Veerappan’s case, saw poor Tribals sentenced to death for the killing of policemen. When Veerap- pan, the forest brigand, was ultimately killed, huge crowds of the poor gathered to pay their last respects to a man who had fought the police successfully for decades. A perusal of the defence evidence shows that the police routinely terrorised the villagers, robbed their chickens and mo- lested their women. True, Veerappan cut trees and killed elephants, but he paid labour double

|320 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE the minimum wage and treated them with dignity. He was their hero and they protected him by providing him safe heaven, food and intelligence. It was these villagers who were ultimately sentenced to death. The high profi le Dhananjoy Chatterjee’s case, where the accused were sentenced to death for allegedly raping and killing an 18-year old girl, took the nation by storm and galvanised public opinion in favour of the death penalty. The date of his execution was announced ignoring the pendency of his mercy petition before the President. It was only the last minute intervention of the Supreme Court that brought him temporary respite. When the President rejected his plea for commutation he was gleefully hanged by the Government of West Bengal on his birthday. He left this world with dignity, pleading his innocence till the end, forgiving the hangman for what he was about to do. The latter, had earlier arrogantly told the press that he would do his job this time with satisfaction. After his encounter with Dhananjoy, he was a changed man. Public opinion so swung in favour of the death penalty that even one of the most prominent women’s organisations that had previously opposed capital punishment, took an 180 degree turn and said that it supported the punishment in ‘special cases.’ But the death penalty in India is, in any case, imposed only in special cases that meet the ‘rarest of the rare,’ standard laid down in Bachan Singh’s case. When the former home minister, in a populist mood, told Parliament that he was willing to introduce the death penalty for rape if the women’s organisations agreed : there was an outcry. It was the certainty of punishment not the severity that was critical they said. But, now in power, all these principles were forgotten and everyone followed the chief minister’s wife when she took to the streets to campaign for the hanging. A fi ve-judge Constitutional Bench of the Supreme Court rejected his plea that having been in jail for 14 years, it was cruel, inhuman and degrading to now execute him and that, in any case, it amounted to double punishment. His family, bitterly poor, went on a hunger strike protesting his innocence. The innovation of the American courts introducing DNA testing as admissible in a criminal trial was not followed. The man is now beyond the reach of any human tribunal. It was said by the sentencing court, that the fact that he was a watchman duty-bound to protect people, was an aggravating factor calling for the death sentence. How ironic! In cases where the security forces have been found guilty of raping and executing citizens, the Apex Court has held that such crimes do not fall into the category of ‘rarest of the rare.’ Perhaps, it was the fact that he was a poor security guard that had something to do with the sentence. Much like the Naxalites from Bihar who engage in violence on behalf of the poorest of the poor and who get the death sentence, while the Ranvir Sena, the Army of landlords, get away with no punishment at all. In the days that followed my defence of Dhananjoy, I realised that about 70 percent of the Indian population supported the death sentence and an equivalent number of young middle class persons also did so. Many of them wanted public executions and the fi ring squad! Even among the working people, I was surprised to fi nd similar reactions. “Give him to us fi rst” said a rickshaw puller interviewed on television; “We will beat him fi rst and then you can hang him.” A rape victim interviewed said that the legal system was so slow that death was the only deterrent. Sadly, these views were reinforced by wrong information sometimes deliberately disseminated

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |321 CHAPTER FOURTEEN about the death sentence. Many were under the impression that capital punishment meant 14 years in prison, and on this basis it was rumoured that, were the sentence commuted, the accused would be soon roaming free. It was an effort communicating that after Maru Ram’s case life meant life. Then came Om Prakash’s case. He was sentenced to death in a multiple murder case. He claimed to be a juvenile. Once again the legal aid provided to him was much below par. Although he submitted his school certifi cate confi rming his minority, it was not looked at. His plea was rejected on the specious ground that he had a bank account and that this implied that he was a major. His mercy petition is pending and he has sought review as well. Leadership by the Apex Court on such a vital, moral and legal issue, was sorely lacking. The majority, in the Constitutional Bench decision in Bachan Singh’s case, reduced the arguments to a triviality. Their views were that if in the civilised world people are divided as to whether there ought to be capital punishment, that it is not the business of the Supreme Court to so decide, and the legislature must take on that task. The Constitutional Court of South Africa did not take such a limp and easy way out. In a stunning unanimous decision, the Court held the death sentence to be unconstitutional. Justice Bhagwati’s courageous and erudite defence will remain in our jurisprudence as one of the fi nest judgements ever rendered. I have no doubt that, sometime in the future, it will be the law of this land. But till then, it will stand out as a decision to trouble the conscience of those who advocate the death penalty and of judges who impose it. In the meanwhile, judges have lost the ideological battle waged by the police against them on television and in the print media. In a short sighted attempt to appear more strict, they have begun to dilute the safeguards of criminal law and the standards for executions in an attempt to push up the conviction rate and appear tough. In doing so, a great disservice to the system of constitutional and criminal law is being done. ‘Ad-hocism’, naïve pragmatism, silly common sense and guess work, replaced the sound tenets of criminal jurisprudence; and the victims are always the poor, Dalits, Adivasis, unorganised workers and Muslims. As KG Kannabiran said, “its only those without capital who get the punishment.” And in the midst of all this, when a principle stand was required to be taken, the Law Commission came out with a report asking for hanging to be replaced by the lethal injection! When I was told on a television debate that the only way to get rid of mad dogs was capital punishment, I responded saying that there were more mad dogs roaming free in society than those behind bars, implying that the person making the proposition was one of them. These are only signs of the very high level of violence existing in society today. No society burns women for dowry, humiliates Dalits, batters women at home, forces women to commit suicide in sati, bulldozes the houses of the poor, starve half the population and tortures people incarcerated at police stations – as we do in India. What is now this acceptable level of violence has permeated into the psyche of even ordinary people. We are at the threshold of developing a society so disfi gured by violence that the very foundations of democracy are threatened. On the horizon is the police state.

|322 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation VICE OF ARBITRARINESS

Constitutional Bench of the Supreme Court, in the Bachan Singh vs State of Punjab case,while upholding the death penalty restricted its imposition to the “rarest of rare” A cases when the alternative option of life imprisonment is “ unquestionably foreclosed.” Justice Bhagwati’s minority decision held the death penalty to be unconstitutional but, in view of the majority view, added that the only way the vice of arbitrariness can be removed is by an automatic review of all death penalty sentences by the Supreme Court sitting en banc and affi rmed only if it is unanimously approved. Recent decisions show that it is necessary for the Apex Court to review the manner in which it imposes the death penalty. Arbitrary The vice of arbitrariness surfaced in the Harbans Singh case. The High Court sentenced the three accused to death. One of the co-accused, Kashmira Singh, fi led an SLP and the Apex Court commuted the sentence to life. The other co-accused, Jeeta Singh, did not fi le an SLP and was executed. Harbans Singh fi led an SLP which came up before a different Bench of the Supreme Court. Though the offi ce note mentioned that the sentence of the co-accused had been altered to life imprisonment, this fact was not brought to the notice of the judges hearing the case and his SLP was dismissed. He then fi led a writ petition. The judges hearing the petition held: “The course which this case has taken makes sad reading. Three persons were sentenced to death by a common judgement and, regretfully, each one has met with a different fate…. Since Kashmira Singh’s death sentence was commuted by this court it would be unjust to confi rm the death sentence. That will involve the court…in the violation of rudimentary norms governing the administration of justice… The fate of Jeeta Singh has a posthumous moral to tell. He cannot profi t by the direction because he is now beyond the process of human tribunals. Thereafter, in fi ve decisions the Apex Court, when there was a difference of opinion in the courts below, declined to impose the death sentence. In Laxman Kumar’s case, Suresh’s case, Bharat Fakira Dhiwar’s case and Lichhamma Devi’s case, the Apex Court held “that when there is a difference of opinion as to the guilt of the accused by the courts the proper sentence would be not death but imprisonment for life.” Arbitrariness, in the imposition of the death sentence, arose again in the Rajiv Gandhi assassination case. Blinded by the hysteria following the bomb blast, the trial court sentenced all the 26 accused to death. The Apex Court characterised the decision as “rash,” based on “practically nil evidence” with the judge making “long leaps” to come to a conclusion unsustainable on the

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |323 CHAPTER FOURTEEN material on record. The court found it “unfortunate” that the special judge sentenced some accused to hang “without any evidence.” As a result, the court affi rmed the death sentence for four of the 26 accused. It was a matter of grave concern that a judge, empowered to impose the death sentence, should err in the case of the 22 accused. This was arbitrariness writ large. Defence counsel characterised the judgement as “judicial massacre.” Two recent cases − of Devinder Pal Singh and Krishna Mochi − raise the spectre of incorrect standards in the imposition of the death sentence once again. The senior most judge, in the Devinder Pal Singh case of the three-judge Bench, acquitted the accused fi nding, among other defi ciencies in the prosecution evidence, major fl aws in the confession and no corroboration of the confessional statement. The two other judges, however, sentenced the accused to death. In Krishna Mochi’s case, one judge acquitted the accused fi nding “faulty, delayed, casual, unsci- entifi c investigation … and that the witnesses had failed to identity the accused and had given doubtful and tutored evidence.” The remaining two judges sentenced the accused to death. In both cases, the judges declined to go by Thomas J.’s dissent in case: In a case where a Bench of three judges delivers judgement in which the opinion of at least one judge is in favour of preferring imprisonment for life to the death penalty …I think it would be proper for the Bench to review the order of sentence of death in respect of that accused. Such an approach is consistent with Article 21 of the Constitution as it helps saving a human life from the gallows and at the same time putting the guilty accused behind the bars for life. In my opinion, it would be a sound proposition to make a precedent that when one of the three judges refrains from awarding death penalty to an accused on stated reasons in preference to the sentence of life imprisonment that fact can be regarded suffi cient to treat the case as not falling within the narrowed ambit of “rarest of rare cases when the alternative option is unquestionably foreclosed.” Review needed The Supreme Court needs to take a fresh look to see whether the recent decisions of the Apex Court confi rm to the constitutional court standard that the option of life imprisonment must not be “unquestionably foreclosed.” If it is settled law − that a disagreement among the lower courts as to whether the imposition of the death sentence is adequate for the Apex Court not to impose the death sentence − the same principle should apply when there is a disagreement among judges of the Supreme Court as well. The case for commutation, if one judge acquits the accused, is stronger still as the death sentence is certainly not “unquestionably foreclosed” for a judge has questioned the conviction itself and not merely the sentence. Irreversibility It is no answer to say that the will of the majority of judges on the Bench must prevail. This rule, applicable to all cases, does not take into consideration the irreversibility of the death sentence. There are numerous cases where even Supreme Court judgements have been overruled by larger Benches. Thus errors, even glaring errors by Apex Court Benches, are not uncommon. In death

|324 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE penalty cases, however where a mistake has been made, like in the Harbans Singh case, it is no consolation because the execution will have been carried out. Hence the need for a different approach. Namely, that if a judge dissents, either on sentence or on conviction, it must be taken that the alternative option is not unquestionably foreclosed. Majoritarianism, therefore, cannot prevail.

–Combat Law June-July 2003

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |325 AFZAL’S CASE

n January 19, 2001 advocate Attar Alam was appointed as amicus curiae for Afzal Guru. He discontinued soon thereafter. On May 14, 2002, Afzal was given the chargesheet of 465 Opages. On May 17, 2002, Advocate Sima Gulati was appointed as amicus. On June 4, 2002 the order, on charge of the Trial Court, is as follows: “Counsel for accused Mohd. Afzal conceded that prima facie charge was made out against the accused.” On June 5, 2002, Afzal’s counsel conceded that evidence − related to post-mortem reports of deceased terrorists as well as deceased persons killed in the attack − be considered as undisputed. All documents shall be not be disputed by the accused persons and “shall be considered proved without formal proof and unopposed.” As a result of this, Afzal’s signatures and pointing out memos on the inquest forms, prior to the post-mortem wherein it is alleged that he identifi ed the alleged terrorists, have been taken as admitted by Afzal’s counsel. It appears that Nandita Haksar approached Advocate Sima Gulati and requested her to appear for SAR Gilani in the trial court. This is evident from Manoj Mitta’s article in the Indian Express where he has interviewed Advocate Vrinda Grover and others who were involved in SAR Gilani’s defence. Taking away Afzal’s lawyer, at that critical stage of the trial when 16 witnesses had given their evidence, was to prove fatal for Afzal. On July 2, 2002 Sima Gulati seeks discharge and makes an application to the Court wherein she says that she is engaged on behalf of SAR Gilani and would not be able to discharge her duties properly in respect of Afzal. In her application she says, “she has neither taken any instruction from the said accused nor has she even discussed the case with the said accused or anyone else acting on his behalf.” This is most unusual as Advocate Gulati, as mentioned above, has already conceded that prima facie charge was made out against Afzal and has also conceded that the post-mortem reports, and the pointing out of memos on the inquest forms where Afzal’s signature appears, are to be taken as proved by the prosecution and not contested. If she had taken no instructions from Afzal how were such damaging admissions made? Advocate Neeraj Bansal was appointed as amicus curiae. Afzal is not given a defence lawyer. An amicus is appointed in a criminal trial to assist the court. This is generally in addition to a defence lawyer and not in lieu of one. The evidence began on July 8, 2002. Advocate Neeraj Bansal made no attempt to meet Afzal in jail. He took no instructions. He did not cross-examine any of the fi rst 16 witnesses. These included recovery of car receipt, identity cards − which carry a number − that the prosecution attributes to Afzal, mobile phones that are being linked to Afzal, explosives recovered from the scene, identifi cation of terrorists at the mortuary and other such crucial testimonies. The four

|326 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE witnesses were the main witnesses with regard to all recoveries at Parliament House. The documents, declared as undisputed by Ms. Gulati, were not questioned. On July 8, 2002 Afzal made an application requesting the appointment of a defence lawyer and gave the following names: Ashok Agarwal, Pandit RK Naseem, RK Dham and Mr RM Tufail. On July 12, 2002, after recording and closing the evidence of 20 prosecution witnesses and after Afzal protested and repeatedly requested a defence lawyer, the trial court made the following order: Afzal states that he does not want the amicus curiae, Neeraj Bansal, to act on his behalf. He earlier had given the list of four advocates namely, RM Tuffail, PK Dham, Ashok Agarwal, RK Naseem. This court had enquired from RM Tuffail and RK Naseem who appeared in this court in another case, but both of them expressed their inability to become amicus curiae in this case. Mr Ashok Agarwal had earlier appeared in this case on behalf of one of the accused and argued the bail application. Thereafter he did not appear. Afzal states that his case is entirely different from the case of other accused persons and he does not want to defend himself by any lawyer unless any of these lawyers, named by him above, are provided to him. I consider that if the accused wants to have a lawyer of his choice, he is free to engage one of his choice, but if he has not engaged a lawyer of his choice and has asked the court to appoint amicus curiae, the court can appoint amicus curiae out of the panel available with it or out of the willing advocates. Afzal has given the liberty to cross-examine the witnesses. Neeraj Bansal has requested for withdrawal from this case, but he is requested to assist the court during trial. It is in such circumstances that Afzal went undefended during his trial. It is important to enquire into who was responsible for taking Advocate Sima Gulati, in the middle of his trial, away from Afzal. Subsequently, it appears that Nandita Haksar, in order to take attention away from the fact that she was responsible for causing Afzal to lose his defence lawyer in the trial court, held meetings in Srinagar and elsewhere where she raised the grievance that Afzal had not been defended in the High Court and that Afzal’s counsel had merely asked for him to be put to death by lethal injection. Some persons apparently had asked Afzal to write a note which was then used to spread this allegation. However, since Nandita Haksar was present in the court, through the entire proceedings, she needed to know about what had transpired in the High Court. Once again an enquiry should be made into the identity of the person who had asked Afzal to write such a note. Secondly, even if such a note was wrongly written, Nandita Haksar and others, who met Afzal could have clariﬁ ed the situation as they were present in the court. The only conclusion, that can be drawn, therefore, is that the note was used by Nandita Haksar inspite of knowing that the contents were incorrect. Why did Nandita do this? The advocates, present in the High Court, were Advocate Vrinda Grover, Advocate Prashant Bhushan, Senior Advocate Ram Jethmalani, Advocate Bikram Batra (then with Amnesty International), Advocate Nitya Ramakrishnan and Senior Advocate Shanti

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |327 CHAPTER FOURTEEN

Bhushan. All of these lawyers can testify to the painstaking defence made by Afzal’s counsel in the High Court over a period of six months. During this period, written submissions running into 243 pages, were fi led. The fi nal arguments, on behalf of Afzal in the High Court, cover the illegality of the written confession, the illegal manner in which the accused was identifi ed by the prosecution witnesses, the non-sealing of crucial evidence, the failure of the prosecution to call material witnesses, the testimony about the mobile phones and sim cards was fabricated and unreliable, that Afzal’s fi ngerprints do not appear on a computer said to be recovered from him and so on. There is not a word therein regarding the lethal injection. Similarly, the High Court order which runs into approximately 100 pages records, inter alia, in Para 122 as under: “The fi rst preliminary issue argued by Mr Colin Gonsalves, learned Counsel for Mohd. Afzal was that: (i) an accused has a Fundamental Right to counsel from point of arrest, especially in a capital case; (ii) it is the duty of the investigating agency to inform the accused person that the accused can consult a lawyer; (iii) at the time of trial, if the accused does not engage a lawyer, the State at its expense, must provide one. The lawyer so appointed must be competent and should be given adequate time to prepare the defence. 123. The second issue urged was commonly propounded by counsel for accused Mohd. Afzal and Mr Ram Jethmalani, learned Senior Counsel appearing for accused SAR Gilani. It was contended that by allowing the media to interview Mohd. Afzal, which interview was prominently shown by the electronic media on 20.12.2001 and 21.12.2001, serious prejudice was caused to the accused persons. It was a case of media trial, was the submission made. It was argued that what was telecast by the electronic media over the TVs repeatedly for the next two days was a full-fl edged interview of accused Mohd. Afzal. This had seriously prejudiced, or at least the possibility of causing serious prejudice in the mind of trial judge could not be ruled out, and as a consequence thereof accused were denied a fair trial.” Thereafter in paragraph 128 onwards the High Court deals extensively the arguments made by Afzal’s counsel in the High Court. In Para 133, the High Court observed as under: “Mr Attar Alam did not agree to act as amicus for Mohd. Afzal and on 17.5.2002, Ms. Seema Gulati, Advocate agreed to act as amicus for the accused. All counsels, in the presence of the accused persons, made certain concessions resulting in the passing of the order dated 5.6.2002. Mohd. Afzal throughout the trial never made a grievance that the statement was erroneous or was not authorised by him and made no attempt to withdraw the same, with the result that in terms of Section 58 of the Evidence Act, certain acts and documents referred to in the order dated 5.6.2002 stood proved on record without formal proof.” In Para 135 and 136 the High Court records as under: “135. It was contended by Mr Gonsalves, Counsel appearing for Mohd. Afzal and Mr Ram Jethmalani, learned Senior Counsel appearing for SAR Gilani that a media trial is antithesis

|328 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

of the rule of law and results in miscarriage of justice… 136. Mr Colin Gonsalves, relied upon the judgements of European Court of Human Rights…” There is not a word in the High Court order regarding any plea made by Afzal’s counsel to the effect that Afzal should be put to death by lethal injection. Had the submission been made the High Court would have certainly recorded and dealt with the submission. Finding no way to justify her allegation, Nandita Haksar, and a particular person acting on her behalf, have referred to an application, fi led by Afzal, in the Delhi High Court. In this application, Afzal puts on record that the chargesheet and accompanying documents were taken away from him by Mr Neeraj Bansal and, as a result, he remained without papers throughout the trial. He was thus unable to instruct counsel. The trial proceeded without him being consulted. He then informs the court, in the application, that his signatures were taken on a large number of papers. He then deals extensively with the illegality of the media trial. He complains about the denial of a defence counsel. He, thereafter, complains that his Section 313 statement in court was not recorded completely. He puts on record how he was tortured as under: “In 1997, he started a small business of medicines and surgical instruments in Kashmir. He got married. Unfortunately, a Major in the Rashtriya Rifl es Camp, who used to call surrendered militants weekly for attendance, began to abuse and beat the appellant and made him clean the toilets and sweep the camp. Since appellant was the only bread earner, he tolerated the weekly torture and humiliation. Once [sic] day Major Ram Mohan Roy of 22 RR gave electric shocks to the appellant on his genitals in order to force the appellant to give him information or to give him money. When the Army came to know that the appellant was planning to quit Kashmir and live in Delhi, they informed that Army would occupy his house and not allow him to come back. On hearing this, appellant’s mother refused to leave the house, and, therefore, the appellant was forced to continue residing in Kashmir. One night, Army personnel came to appellant’s house, abused the appellant and his wife and took appellant to the Army camp. On another occasion STF persons picked up appellant from Sopore medicine shop and kept him for six days in Pattan Pahalgam camp. For these six days appellant’s mother, wife and relatives were searching everywhere. Then they reached Palhalam camp. There DSP Vinay Gupta and DSP Darinder Singh Humhama STF camp demanded Rs. 1 lakh from appellant’s brother. Appellant was not shown to his parents as he had been brutally tortured for six days. Appellant was kept in cold water and petrol was put in his anus. One offi cer Shanti Singh hanged appellant upside down for four hours. Appellant’s legs were tied and he was kept naked throughout the night. Shanti Singh told appellant that he had killed ten persons. Two of these ten persons belonged to a town nearby Sangrama and Baghi Islam Baramullah. He told the appellant that besides the money to be given to the DSPs, appellant had to give Rs. 10,000 to him. After nine or ten days appellant gave Rs. 1,00,000 (Rs. One lakh) to DSP Darinder Singh and Vinay Gupta. Appellant’s family also gave appellant’s Bajaj Scooter to them. After 25 days of such custody appellant was set free but he could not go outside for six months due to the physical problems of torture. He could not even share the bed with his wife as his penile organ had been electrifi ed by STF. He then went to a sexolo-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |329 CHAPTER FOURTEEN

gist and started regaining potency. Doctor told him time is the best healer. Rest is in my 313 Statement.” In the same application, Section 354(5) CrPC − which prescribes death by hanging − is impugned as unconstitutional. The Constitution permits the sentence of death provided there is a law to that effect. This law is to be found in 354 (5) of the CrPC which permits life to be taken but only by hanging. If this section is struck down by any court − as constituting ”cruel, inhuman or degrading treatment” − the consequence would be that the sentence of death cannot be imposed. The argument − that 354 (5) CrPC was unconstitutional − was made several years ago in Bachan Singh’s case and rejected on the basis that there was no medical evidence then to show that death by hanging was cruel, inhuman and degrading. The challenge to this section was again pleaded in Afzal’s case with a view to having the section declared null and void so that if there is no law allowing for the death sentence, the sentence of death cannot be executed. The striking down of death by hanging and the consequent result of commutation to life has happened in several US states and in other countries as well. No argument was made that a new section ought to be introduced. A person sentenced to death cannot be executed as long as a Statute, enabling the taking of life, does not exist subsequent to a court pronouncement declaring it void. No argument was made in Afzal’s case that he be given the lethal injection. There is no reference to this in the 250 page fi nal arguments. There is no reference to this in the High Court order. I cannot understand why persons, who showed no interest in Afzal’s fate over all these years of trial and appeal, have, at this critical stage, chosen to spread the canard that I asked for his death by lethal injection. It distracts from the presentation that must be made before the President and does grave disservice to Afzal. In respect of this point Advocate Prashant Bhushan has written as under: “Saying that Death by hanging is an unusually cruel punishment and a violation of Article 21 is very different from saying that Afzal should be given the death penalty. It is absurd to claim that Colin argued that Afzal should be given the death penalty. Many people present in the court during Colin’s arguments, apart from Ram Jethmalani can attest to that. One can understand an uninformed reporter from the press trying to sensationalise things to mis- represent Colin’s argument in this manner, and one can even understand Afzal being taken in by that report. But it is completely inexcusable for persons like Nandita Haksar trying to peddle this canard.” Similarly senior counsel Ram Jethmalani wrote on October 10, 2006 as under: “You appeared for accused Md. Afzal before the High Court of Delhi at the hearing of the death reference in which Md. Afzal and two others had been sentenced to death. I watched with admiration the manner in which you defended your client. It is all the more creditable that you agreed to appear for him in the fi rst instance and in the second place you did an honorary job. It was a very unpopular cause and many stalwarts had refused to represent him. You acted at the request of a human rights organisation and your junior Nitya in the case. I believe she had appeared in the trial court too. You have acted in the best tradition of the Indian Bar and everyone should be proud of your performance. I have with me the fi nal summary of your submissions which you made to the High Court running into nearly 250

|330 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

pages. I have preserved it for my education and the education of the young lawyers who keep coming to my Chamber for training in the art and practice of advocacy. “I can only imagine the amount of industry that must have gone into the preparation of this massive volume and the enormous energy that you used in your speeches as to the High Court over a long period of almost three months. “I write this because I have been distressed to learn that Ms. Nandita Haksar, an advocate, has appeared before the media and made statements against you which have no content of truth at all. She is reported to have said that you did nothing for your client except to tell the Court that he deserves a lethal injection. The impression that she has created is that you made no effort to provide any legal assistance to your client. “While I cannot believe that Nandita has made these false statements with malice against you, I cannot but think that they are totally and recklessly false. “I remember your argument that the provision of our criminal law which sanctions death by hanging is a cruel and unusual punishment and is constitutionally impermissible. If this argument had succeeded there was no provision left for executing the death sentence. You were only suggesting to the court that there are more humane methods of carrying out the death sentence and a lethal injection is one of them. You never suggested to the Court that your client is guilty but he should be given such an injection. I am quite sure Nandita did not understand what was being argued. It may be that she was wrongly informed by somebody else. Please forgive her. “I was quite impressed about by your eloquent argument supported by extracts from the record that your client did not get a fair trial. I regret that this argument did not succeed with the High Court. I am not sure whether it was pursued in the Supreme Court. It should have been and might well have produced a welcome result. “I do want that you should help Md. Afzal in his family’s petition invoking the presidential powers under Article 72 of the Constitution of India. That would raise your stature and will certainly add to the reputation of our legal system.”

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |331 IN DEFENCE OF AFZAL

hen I was brought in to defend Afzal Guru in the High Court and I studied the trial court proceedings, it was clear that apart from the appreciation of evidence, his case rested Won two gross infi rmities. The fi rst was trial by media, which rendered the doing of justice to Afzal impossible and the second was that the trial court denied him a lawyer. Media trial Afzal was handcuffed in the offi ce of the special cell and before his trial could begin and the police called in the media to broadcast a nationwide “confession” on primetime television. Such a “confession,” though inadmissible in evidence had a huge impact in the country and a fair trial thereafter became nigh impossible. Prior to making such statements, Afzal was not informed that he could consult a lawyer nor was he permitted to do so. He had a right to a lawyer from the moment of arrest. Any lawyer would have advised his client not to speak to the media. As a result of this trial by media, I argued that both the trial court and the Amicus had been biased. Bias is insidious. The subconscious is affected. Trial by media is the anti-thesis of the rule of law and makes a fair trial impossible. ACP Rajbir Singh, in the testimony, stated: “I allowed media to interview accused Afzal in my offi ce under the consent of my senior offi cer, namely DCP.” The High Court dealt with these arguments in detail setting out not only the Indian decisions cited by me but also the judgements of the European Court of Human Rights and also the US Supreme Court. Though my arguments for a re-trial were rejected, the High Court observed, “It has indeed become a disturbing feature that the accused persons are brazenly paraded before the press and are exposed to public glare in cases where test identifi cation parade arise, weakening the impact of identifi cation. What is fundamentally disturbing is the fact that custody is given by the court. This custody is not to be misused.” Legal aid Afzal was not given a lawyer in the trial court. He wrote to the judge saying that he needed a competent senior advocate and suggested four names. The judge enquired from two of the advocates present in court who declined and did not pursue the enquiry any further. He then appointed a lawyer for Afzal. When Afzal empathically said that he did not want this lawyer to represent him and the lawyer himself informed the court that he wished to withdraw, the court appointed the lawyer to assist the court. Assisting the court is one matter. A defence lawyer for the accused is another. Afzal’s trial then proceeded without a defence lawyer.

|332 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

Since he had no defence lawyer, many prosecution witnesses − testifying directly against Afzal − were discharged without effective and competent cross-examination. No cross-examination was conducted of many witnesses regarding recoveries, including of the mobile phones and sim cards said to be implicating Afzal. No cross-examination was done of prosecution testimony showing Afzal allegedly identifying the dead terrorists. No cross-examination was done on seizure memos and alleged renting of rooms in Delhi. No cross-examination was done on the manner of the identifi cation of the accused, alleged purchases of chemicals or the pointing out memos. The cross examination, in respect of Afzal’s arrest at Srinagar, was done contrary to Afzal’s case. On several dates, presence of the advocate is not recorded. On some dates, opportunity to examine the witness is not recorded. Critical questions − regarding the media interview and the recording of the confession − were not put to the investigating offi cer. As a result, counsel did not consult with defendant Afzal on critical aspects of the trial, made no objections to inadmissible evidence, made cursory closing arguments, did not make written submissions, presented no case law and often did only a formal cross examination. It is inexplicable why the trial court insisted on the advocate continuing with the case once the accused had emphatically said that he did not want to be represented by him. It is unfair both to the accused as well as to the lawyer. No lawyer should be compelled to proceed with a trial, especially in a capital case, against his wishes. The fi nal arguments, on behalf of Afzal in the High Court, covers the illegality of the written confession, the illegal way in which the accused was identifi ed by the prosecution witnesses, the non-sealing of crucial evidence, the failure of the prosecution to call material witnesses. The testimony − about the mobile phones and sim cards − was fabricated and unreliable. Afzal’s fi ngerprints did not appear on a computer said to be recovered from him and so on. Death penalty The Constitution permits the sentence of death provided there is a law to that effect. This law is to be found in 354 (5) of the CrPC which permits life to be taken but only by hanging. If this section is struck down by any court as constituting “cruel, inhuman or degrading treatment,” then there will be no law by which life can be taken and consequently the sentence of death cannot be imposed. The argument that 354 (5) CrPC was unconstitutional was made several years ago in Bachan Singh’s case and rejected on the basis that there was no medical evidence then to show that death by hanging was cruel, inhuman and degrading. The challenge to this section was again pleaded in Afzal’s case with a view to having the section declared null and void so that if there is no law allowing for the death sentence, the sentence of death cannot be executed. The striking down of death by hanging and the consequent result of commutation to life has happened in several US states and in other countries as well. No argument was made that a new section ought to be introduced. As long as a Statute enabling the taking of life does not exist, subsequent to a court pronouncement declaring it void, a person, sentenced to death, cannot be executed. No argument was made in Afzal’s case that he be given the lethal injection. There is no reference to this in the 250-page fi nal argument. There is no reference to this in the High Court order. I can-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |333 CHAPTER FOURTEEN not understand why persons, who showed no interest in Afzal’s fate over all these years of trial and appeal, have, at this critical stage, chosen to spread the canard that I asked for his death by lethal injection. It distracts from the presentation that must be made before the President and does disservice to Afzal. Clemency/Commutation Afzal’s case, before the President, must be made on the basis of truth. It needs no embellishments. It certainly needs no falsehoods. The record of the trial court shows undoubtedly that he did not receive a fair trial. The arguments before the President should proceed on the basis of the evidence on record that would shock anyone’s conscience.

|334 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WHY THE DEATH PENALTY?

he propaganda war − that the police have waged against the Judiciary for many years − is now fi nally being won by the police. Senior police offi cers have come on TV again and again Tblaming the Judiciary for arrears in the court and for creating such a fetish of the law that criminals are let off scot-free. The high rate of acquittals is blamed on the Judiciary. The police say: “What can we do? We do our job by prosecuting the criminal. What can we do if the Judiciary lets them off?” In case after case, the courts have been at great pains to explain the reasons for the acquittals. The reasons − including faulty investigation, collusion of the police with the accused, non- production of material witnesses and lack of evidence − can well be found in judgement after judgement. But judges do not come on TV to explain that it is shoddy investigation and paucity of judges that is responsible for the high rate of acquittals and the time taken for the disposal of cases. The signs, that the Judiciary − from the Apex Court to the magistrates’ courts − has lost the propaganda war, are clear from the judgements of the courts adopting standards of proof more dilute than that of “beyond reasonable doubt.” Much is ignored including material faults in investigations, material contradictions in the evidence against the accused, uncomfortable judicial precedents in criminal law. Added to that is uninformed and politically motivated public opinion which tends to be a major infl uencing factor. These are some of the inexcusable compromises made by criminal courts today. All this pales into insignifi cance as compared to the indiscriminate use of the death penalty. To be imposed only in the “rarest of the rare” cases it is now handed down in an assembly line fashion. Even juveniles have been put to death with the onus of proving the age of the accused thrust on to the accused, who is more often than not illiterate, himself. Thus, while the whole world moves in the direction of the progressive restriction and abolition of the death penalty, India is moving in the direction of increased barbarism. Blood thirsty, narrow- minded public opinion rules. Modern criminal jurisprudence be damned. A sign of how low standards have fallen comes from the fact that the Apex Court should, in Devinder Pal Singh’s case, hold that − notwithstanding the 2:1 split in the Supreme Court with the minority judge acquitting the accused − the death penalty is justifi ed. Muddying the waters further is the Malimath Committee. It is a quaint Indian custom for the government to desire that a thing be done and then identify the “eminent” persons who will comply. They, in turn, will make a pretence of studying the issue with an open mind by “consulting” groups. Finally, in an eclectic and intellectually dishonest report, this committee will arrive

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |335 CHAPTER FOURTEEN at the same pre-determined conclusions as are needed by the State. All this round-about tamasha (farce) only to prove that the recommendations came from an impartial and expert body. Invariably, surrounding the retrogressive core of the report will be a sprinkling of “progressive” recommendations. And as far as rape is concerned it was only the women’s movement, speaking in one voice denouncing the government’s propagandist offer to introduce the death penalty for rape, that, prevented an amendment of that nature in the IPC. One thing is clear. It is the duty of every human rights activist and organisation to expose and trash these recommendations tooth and nail. We are now on a slippery slope. We have allowed concessions to the police that will cripple the administration of criminal justice. The police’s disinclination − to do scientifi c investigations and it’s fondness to go by torture as the main forensic tool − is doubly reinforced by the provisions in the TADA and POTA allowing confessions to a police offi cer. Malimath J. and Madhava Menon, along with an assortment of police offi cers, now want similar provisions in general criminal law as well. What they forget is that in jurisdictions, where statements to the police are admissible as evidence, there are three important structural safeguards in the administration of justice. The fi rst is the separation between the police and the prosecution and the control over the police by the district attorney’s offi ce. The second is the right to an advocate right from the point of arrest. And the third is that torture is exception to the rule and a fi nding of the use of the third degree would result in the release of the accused and the prosecution of the police. Civil society has protected itself from police raj by not allowing statements made to the police to be used in the court. By doing away with this, we are making what was police raj only in fact, police raj in law. God help this nation.

–Combat Law June-July 2003

|336 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation RIGHT TO LEGAL AID

he bomb blast in the court premises in Uttar Pradesh, along with the subsequent speeches of lawyers at meetings exhorting their colleagues not to appear for the accused in the bomb Tblast cases, raises the critical issue of legal aid for the accused in cases relating to terrorist crimes. There was a similar attempt, made in Gujarat after the Godhra incident, made to pass a resolution at the Bar to the effect that no lawyer would appear for the Godhra accused. It must be said, to the credit of the lawyers in Uttar Pradesh, that attempts to pass a similar resolution have, at least at the time of the writing of this article, been thwarted by others who, in the fi nest tradition of the Bar, have argued that every accused person has a right to legal aid which is not premised upon the nature of the offence. In fact, the more serious the offence the graver the need for legal aid. In Hoskot’s case, interpreting Article 39(a) of the Constitution, the Supreme Court held that it was mandatory for the State to provide free legal aid. This requirement was not satisfi ed by the appointment of a junior lawyer. The accused was to be fully informed about his rights and preferably be provided with legal assistance of his choosing. Reasonable remuneration was to be paid to the lawyer. Free transcripts, of the relevant documents, were to be given and facilities extended for the fi ling of an appeal. The Supreme Court, in Ranchhod Mathur’s case, held that indigence could never be a ground for refusing legal aid. The Court condemned the practice of sessions judges not appointing legal aid advocates for the poor accused even in grave cases. What was needed, the Court said, were competent counsels. Raw entrants to the Bar were hardly a thing to look forward to. Lawyers − who argue that persons accused of committing a terrorist offence are not worthy of legal representation − misunderstand the nature of a criminal trial and the constitutional requirements of legal aid. If a person is falsely accused of a minor offence surely that contingency is possible even for a serious crime. In fact, it could be said that the tendency of the police and the state, in serious crimes of a political nature, to rope in persons unconnected with the crime only to settle old political scores, is more acute. Likewise, where a terrorist crime is given a communal hue by the media and politicians, there could well be a tendency for the police to arrest persons without evidence merely because they belong to a particular community and had, on some earlier occasion, a brush with the law. It is precisely when the accusations are grave and of a political nature, as indeed most terrorist crimes are, that the constitutional safeguard of legal aid is more strenuously enforced. There is much case law on the proposition that, in capital cases, senior counsels ought to be provided by the court if the accused is indigent. The second error, made by those who advocate a boycott of the accused, relates to the nature

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |337 CHAPTER FOURTEEN of a criminal trial. The purpose of a criminal trial is not the punishment of the accused but the discovery of truth. The adversarial system has been designed to break down false cases, uncover lies and thereby do justice to persons falsely accused by the police. Even a well meaning police ofﬁ cer, acting bonaﬁ de, could come to a genuine conclusion that a person is guilty of a crime and yet discover, during trial, that he has made a terrible mistake. The role of a lawyer, in such a system, is critical. Without her a criminal trial would be a farce. The consequences of a wrong conviction, on the rest of society, are disastrous. If the persons accused in the UP bomb blast cases are not the real wrong doers and are wrongly convicted, the actual miscreants may well be roaming free. The price for such shortcuts is always paid by society. The real killers roam free. Society bears the burden of a Criminal Justice System without justice. This is why legal aid is constitutionally provided not merely for the accused but for the safety of the whole of society.

–DNA newspaper

|338 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WHY WITNESSES TURN HOSTILE?

he acquittal, in Jessica’s case after the witnesses turned hostile, brings into sharp focus the need to radically reform our Criminal Justice System. Witnesses turn hostile in India Tbecause of major defects in the Criminal Justice System and not because of any decline in the moral values of the public-at-large. The biggest culprit is the police. If the victims fi nd, as they do in India in case after case, that the police is more interested in extorting money from the accused then they are bound to loose heart. The modus operandi is simple. All accused persons approach the police fi rst to botch up the FIR and later on the chargesheet. During trial, the investigating offi cer (IO) will be paid not to produce important witnesses and other evidence. The public prosecutors (PP), after they are suitably managed, will give such instructions to witnesses as to destroy their own case. Criminal elements will be told by the police about the whereabouts of the prosecution witnesses so that they can be suitably intimidated. Trial courts have, in hundreds of decisions, passed strictures against the police for compromised investigations and trials. But you will be hard-pressed to fi nd even a single instance where the investigating offi cer himself is prosecuted for the willful self-destruction of his case. The principal enemy − of free, fair and fast trials in India − is the police. Often working hand in glove with the police is the PP. It is not unknown for parties to approach PPs and make suitable payments. Both sides – the accused and the victims – do this and, depending on the fi nancial strength of the party concerned, the prosecutor will either act with alacrity or sloth. He is generally in a very tenuous position. Although he is an offi cer of the court, he is at the mercy of the police. Any PP with a spine, who refuses to accept false evidence, would have his services terminated on the spot. The master of criminal prosecution is in reality the servant of the police. When governments change, these prosecutors are replaced en masse. They owe their positions to their political masters. Little wonder then that the Criminal Justice System is in such a mess. To escape trial, the accused contacts a politician who will in turn contact the home minister who will then give instructions to the prosecutor and the IO and the rest is drama. The victim will go through a protracted trial only to realise, as time passes, that his fate is already decided outside the court. The judge has been reduced to a helpless spectator who watches the drama unfold in front of him. Experienced judges understand the behind-the-scenes maneuverings but there is often little they can do. True, the Supreme Court has said, in Zahira Sheikh’s case, that the judge must not be a mute spectator and the quest for truth is paramount. But in the trial courts, of this country, these grand principles hardly ever correspond to the ground realities of corruption, political interference and dead habit.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |339 CHAPTER FOURTEEN

What needs to be done? A radical reform of the police must be undertaken with the purging of the corrupt elements by termination of services on a large-scale. The investigation wing of the police must be separated from law and order and be brought under the control of the High Court. Public prosecutors should be appointed by the High Court on a permanent basis. The present legal aid system, miserable as it is, should be reformed by the formation of a public defender’s offi ce again coming under the High Court where public defenders are appointed on a full-time regular basis. A Victim and Witness Protection Programme must be introduced by Statute where victims are fi nancially supported right through the investigation and trial. In appropriate cases, witnesses, who speak up against criminal elements, should be relocated to other cities and be given police protection, shelter and employment for the rest of their lives. Funds must be allocated for this purpose. In the courts, as in Sakshi’s case, witnesses must be separated, by partitions, from direct contact with the accused and his advocate. In no circumstances, should they be harangued. In cases of serious social crimes − against the poor, women, Dalits and minorities − bail should be routinely refused and the criminal trial should be made to commence immediately and proceed on a day-to-day basis. The victim’s independent right to a lawyer, who will conduct the prosecution along with the PP, must be developed so as to act as a check on the PP. But the present government, like the NDA, has neither the understanding, nor the courage, nor the interest to carry out reforms that ought to have been done 30 years ago. And the Judiciary has responded not by reforms but by diluting the protection given to the accused in all civilised countries so as to artifi cially push up the rate of conviction not caring that in the process many innocent persons will be implicated and convicted in false cases.

|340 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation SHOULD LIFE IMPRISONMENT BE FOR LIFE?

arlier, it meant an imprisonment of 14 to 20 years, but, of late, the courts are interpreting it as “imprisonment until the end of the natural life of the convict.” So, if a person is Econvicted of a heinous crime, punishable with life, he shall remain imprisoned till his last breath. In Zahid Hussein vs State of West Bengal, the Supreme Court held that “a sentence of imprisonment for life does not automatically expire at the end of 20 years of imprisonment, including remission, as a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate government chooses to exercise its discretion to remit either the whole or part of the sentence.” Last year, the Dhananjoy Chatterjee case – where the accused was sentenced to death for allegedly raping and killing an 18-year-old girl – took the nation by storm and galvanised opinion in favour of the death penalty. The Supreme Court rejected his plea which said that he had already spent 14 years in jail, so it was cruel, inhuman and degrading to now execute him and that, in any case, it amounted to double punishment. In the days that followed my defence of Dhananjoy, I realised that about 70 percent of Indians support the death penalty. The supporters include people from young middle class backgrounds also. Sadly, these views were reinforced by wrong information, sometimes deliberately disseminated, about the extent of life imprisonment. Many were under the impression that life imprisonment meant 14 years in prison. On this basis it was rumoured Dhananjoy would soon be roaming free. It was an effort communicating that, after the SC decision, life meant life. Life sentence is equal to or more severe than the death sentence. It is preferred because it’s morally wrong to take life and the act debases society itself. Recognising the severity of life imprisonment brings with it the obligation for Parliament to introduce fresh guidelines for the imposition of life imprisonment as against imprisonment for a ﬁ xed term. Parliament should clarify, by legislation, that life means life and link this to the abolition of the death penalty. By itself however, it will have an altogether different connotation. It will mean increased repression of the incarcerated population. This is because unless the sentencing judge has a range of imprisonment options, a sentence for life, under the new deﬁ nition, may operate harshly against people who do not deserve to stay in jail until natural death.

–The Times of India May 29, 2005

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |341 THE FOURTH QUARTER OF TIME

t is important to situate the increasing violations of civil and political rights in the context of the overall decline in the exercise of economic, social and cultural rights. The state invest- Iments and subsidies that hitherto went towards the 400 million poor were, with the introduction of the new economic policy, gradually diverted upwards. Cheap food in ration shops, free medical treatment in public hospitals, free education in the government schools and subsidised transportation for the working people went on the chopping block. If, as made out to be, government expected business to respond responsibly, it was not to be. The government policy was rightly seen as a licence to loot. The corporate crime fl ourished. Large volumes of fl ight capital were sent abroad by politicians, offi cials and industrialists with the assistance of transnational banks. And the “den of thieves,” if you know what I mean, participated in this free-for all. India, already poor, became immeasurably poorer. Over the years, the exercise of civil and political rights precipitously deteriorated. The state sponsored death squads − as in Columbia, Argentina, Chile, Spain and elsewhere − were institutionalised and routinely carried out “encounters” and executions. Hundreds of people disappeared. Those who excelled in these “disappearances” – as did the “Butcher of Punjab” – were given high civilian honours. The police, and the armed forces, were licenced to kill. Thus when Army personnel were found guilty of raping Kashmiri women and international attention turned to India, the punishments imposed were “reprimands” and “censures!” During these years the Indian police have hardened into the largest body of organised crime. They supervise and oversee a diverse range of activities from drug running, prostitution, booze and pornography to real estate rackets and the cover-up of corporate crime-joining and participating in gang wars is their latest pastime. Thus, when as in Delhi, the police permitted the massacre of thousands of Sikhs on the streets of India’s capital after Indira Gandhi’s assassination and when the Bombay police actively participated in the communal riots, it became clear that the rot within was complete. No change was possible. Kiran Bedi, then the inspector general of prisons, tried mere cosmetic improvements at Tihar Central Jail and learnt this lesson quick enough. There was no room for reform. The State thus moved into the fourth quarter of time, Kaliyug! After having let off the police for a long time, it slowly dawned on the Judiciary that things were getting out offhand. A tightening-up was discernible in the orders of the Apex Court. But years of tolerance had taken their toll and the attempt was feeble and piece meal. When, for example, the police bashed up an under–trial, in the premises of the Supreme Court, the havaldars were fi ned Rs. 1,000!

|342 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE

International attention mercifully turned to India during this period. Amnesty International, Asia Watch and others did excellent coverage of the deplorable situation. For years, the West would ignore reports coming from India. This was, after all, the largest democracy in the world. Slowly, it became increasingly clear that the East-West differences were largely mythical. There was, as much, if not more, materialism in the East as there was in the West. In the land of Gandhi, and all his talk of non-violence, there was more violence directed against the poor than in any other country. So much so for Indian spiritualism. To counter this adverse publicity, the Government of India set up a national human rights commission. Appointed to the commission were persons of high rank but no track record of commitment to human rights. Their intervention was feeble, pathetic and unconvincing. The Indian government, so excellent at setting up committees, passing grand legislation and promising the world, had done it again!

–Prisoners’ Rights, Volume I May,1996

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |343 A KNEE-JERK REACTION: POLITICIANS ARE STILL NOT LISTENING

ne would have thought that, after the Bombay Attack and the public outpouring of resentment against politicians, the establishment would get its act in order. One would expect Othat careful thought would go into the making of proposals to combat terrorism and to keep the people secure. Instead what do we fi nd? The same old clichés and the usual attack on human rights activists. The people of India wanted the government to give careful thought to making the police a professional fi ghting force oriented towards the security of the ordinary citizens of India. Instead, the police only act as the protectors of politicians. They also expected that the police would eliminate, from its ranks, the use of torture and the vice of corruption. Listening carefully, however, to the statements of BJP and Congress politicians in the media, one can fi nd no reference to the demands of the people. Politicians are obviously distracted by the national elections scheduled for early next year and even such a serious incident of terrorism, as the Bombay Attack, fi gures even now in their consciousness as a vote catching exercise. GOI, in a knee-jerk reaction, proposes to enact the Unlawful Activities (Prevention) Amendment Act, 2008. Under Section 15, the prosecution is to be granted upto 180 days to fi le a chargesheet (it is a 90 day limit today after which the accused is granted bail mandatorily). The provisions for bail are stricter and the court, if arms or explosives are proved to be recovered from the accused, is entitled to presume that the accused has committed a terrorist act. Indian criminal law provisions rank amongst the strictest in the world. In the US and the UK, the maximum period of detention without a chargesheet is two days and 42 days respectively even after terrorist attacks in those countries. The provisions, in India, for search and seizures are the most liberal in the world. Supreme Court decisions, to the effect that even if the searches and seizures are illegal they may still be relied upon in evidence against the accused, has given the police a free hand to do all kinds of things while conducting raids. Amendments have been made in various Statutes to permit interceptions of communications. Supreme Court decisions after 2000 have watered down the criminal law protection of accused persons and have lowered the criminal law standard of proof beyond reasonable doubt to such an extent, that international jurists are appalled by the way in which the Indian courts are convicting accused persons. Why then, with such strict laws and with such a convicting Judiciary, did the Bombay Attack happen with such impunity? The answer is simple. The problem in India lies not in the law but in its implementation. This is where the main demands of the people − that the police become

|344 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE a professional force, that law and order be separated from the investigation of crimes and that corruption and violence be eliminated − become important. The central government also proposes to pass the National Investigation Agency Bill, 2008 which will see the setting up of a national body to oversee the investigation and prosecution of terrorist offences. Here again, the approach is cosmetic rather than substantial and the aim is to impress rather than to protect. The Central Bureau of Investigation (CBI) is today a national body for the investigation of all serious crimes. The only difference, between the CBI and the NIA, is that the former is required to take the permission of the states prior to acting within the state whereas the NIA can operate without consent. there ought to be no difﬁ culty for the central government, if all the states are agreed that terrorism ought to be fought at the national level, to consult the legislatures of the states in a transparent manner and to obtain consent for the CBI to operate throughout the country. All that would be necessary thereafter is for the central government to administratively upgrade the CBI. The reference to Left wing extremism in the statements of objects and reasons is disappointing though it must be said, to the credit of the Union Government, that they have not succumbed to the temptation to introduce the draconian POTA provision authorising confessions to a police ofﬁ cer (which rendered POTA trials farcical). The Naxalism has deep social roots in injustice, poverty and State violence, unlike the senseless terrorism of Pakistani agents. Like the IRA, in Ireland, it must be recognised as a political tendency and negotiated with politically. The reasons for the growth of Naxalism must be understood as requiring a radical shift from the inequities of globalisation to a more socialist programme where the common person is treated with dignity. In the present political situation, however, one can only see hysteria and the lack of reason.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |345 DEATH TO THE DEATH PENALTY

our recent capital cases and the public debate over the views of the President and the Chief Justice, brings to the fore the need for India to urgently reconsider its position on the Fdeath sentence and to abolish it once and for all. The Parliament attack case saw one of the accused unable to pay for a lawyer. He was given a legal-aid lawyer with whom he publicly disagreed and he asked the court to discontinue with that person. The court declined. He went unrepresented. The amicus attempted some sort of a defence but he was contradicted by the accused at critical moments. The accused, a surrendered militant, set out in his defence that he had been tortured by the Army and forced to do certain things that brought him onto the fringe of the conspiracy to attack Parliament. This defence was not properly brought on record. This is how he was convicted and sentenced to death. This was a classic case of trial by media. The accused was chained to a chair in the police station and was asked to confess before the national press. His confession, entirely illegal and inadmissible, was broadcast on prime time television. From that moment onwards, he was guilty as far as the people of India were concerned. Veerappan’s case saw poor Tribals sentenced to death for the killing of policemen. When he was ultimately killed, huge crowds of the poor gathered to pay their last respects to a man who had fought the police successfully for decades. A perusal of the defence evidence showed that the police routinely terrorise the villagers, rob them of their chickens and molest their women. True, Veerappan cut trees and killed elephants, but he paid labour double the minimum wage and treated them with dignity. He was their hero and they protected him by providing him safe haven, food and intelligence. It was these villagers who were ultimately sentenced to death. The high proﬁ le Dhananjoy Chatterjee case, where the accused was sentenced to death for raping and killing an 18-year-old girl, galvanised public opinion in favour of the death penalty. The date of his execution was announced ignoring the pendency of his mercy petition before the President. It was only the last minute intervention of the Supreme Court that brought him temporary respite. When the President rejected his plea for commutation, he was gleefully hanged by the Govern- ment of West Bengal on his birthday. A ﬁ ve-judge Constitutional Bench of the Supreme Court rejected his plea − that having been in jail for 14 years − it was cruel, inhuman and degrading to now execute him and that, in any case, it amounted to double punishment. The innovation of the American courts − in introducing DNA testing as admissible in a criminal trial − was not followed. The man is now beyond the reach of any human tribunal. It was said by the sentencing court, that the fact that he was a watchman, duty-bound to protect

|346 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRIMINAL JUSTICE people, was an aggravating factor calling for the death sentence. In cases, where the security forces have been found guilty of raping and executing citizens, the Apex Court has held that such crimes do not fall into the category of “rarest of the rare.” Perhaps it was the fact that he was a poor security guard that had something to do with the sentence. The Naxalites, from Bihar, who engage in violence on behalf of the poorest of the poor, only get the death sentence; the Ranvir Sena, the Army of landlords, get away with no punishment at all. Then came Om Prakash’s case. He was sentenced to death in a multiple murder case. He claimed to be a juvenile. Once again the legal aid, provided to him, was much below par. Although he submitted his school certifi cate, confi rming his minority, it was not looked at. His plea was rejected on the specious ground that he had a bank account and that this implied that he was a major. His mercy petition is pending and he has sought review as well. Leadership, by the Apex Court, on such a vital, moral and legal issue was sorely lacking. The majority, in the Constitutional Bench decision in Bachan Singh’s case, reduced the arguments to a triviality. Their views were that, if in the civilised world opinion, on capital punishment, is divided then it is not the business of the Supreme Court to so decide; the legislature must take on that task. The Constitutional Court of South Africa did not take such a limp and easy way out. In a stunning unanimous decision, the Court held the death sentence to be unconstitutional. Justice Bhagwati’s courageous and erudite defence will remain in our jurisprudence as one of the fi nest judgements ever rendered. I have no doubt that, sometime in the future, it will be the law of this land. But till then it will stand out as a decision to trouble the conscience of those who advocate the death penalty and of judges who impose it. In the meanwhile, judges have lost the ideological battle, waged by the police against them, on television and in the print media. In a short sighted attempt to appear more strict, they have begun to dilute the safeguards of the criminal law and the standards for executions in an attempt to push up the conviction rate and appear tough. A great disservice, to the system of constitutional and criminal law, is being done. Ad-hocism, naive pragmatism, silly common sense and guesswork have replaced the sound tenets of criminal jurisprudence. The victims are always the poor, Dalits, Adivasis, unorganised workers and Muslims. As KG Kannabiran said : “it’s only those without capital who get the punishment.” And in the midst of all this, when a principle stand was required to be taken, the Law Commission came out with a report asking for hanging to be replaced by the lethal injection! No society, apart from Indian society, burns women for dowry, humiliates Dalits, batters women at home, forces women to commit suicide in sati, bulldozes the houses of the poor, starves half the population and tortures people incarcerated at the police stations. What is now this acceptable level of violence has permeated into the psyche of even ordinary people. We are at the threshold of developing a society so disfi gured by violence that the very foundations of democracy are threatened. On the horizon is the police state!

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |347

JUDICIARY . JudiciarymustbePopular withthe 5. FinestHour ZahiraSheikh:Judiciary’s 4. JudicialOverreach? 3. TheLokAdalats:DespairinPeople’s 2. Fault Delay:NottheJudiciary’s 1. People Court

CHAPTER FIFTEEN Courtesy: Internet

When governments fail to uphold the rule of law and men at the top act as if they are a pirate ship plundering the nation at will, the Constitution is effectively put into the dustbin. The courts are mandated to intervene in such circumstances to maintain the democratic structure of the Nation-State.

|350 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation DELAY: NOT THE JUDICIARY’S FAULT

n a speech delivered by the then Chief Justice of India, Hon’ble Shri R C Lahoti, on Law Day 26 November 2004, he had praised the Judiciary for “carrying a phenomenal burden which Iperhaps no other Judiciary in the world has had to shoulder.”1 “If there are more and more cases in courts,” he had said, “that is because we have a population explosion, we have a more complex and friction-prone society, our dispute resolution and conciliation system are bereft of effi cacy, we have increasingly greater awareness of rights, and perhaps because we have more injustice and more arbitrariness in our midst.” He warned that the courts could not “afford to turn a blind eye or a deaf ear to the rank injustices” merely because the courts are already full of litigation because that would cause the people to have less confi dence in the courts and cause a decline in the credibility that the courts have come to enjoy. Recently, the Chief Justice of India, the Hon’ble Shri KG Balakrishnan, in his speech, on judicial reforms at a seminar this year, rebutted the accusations made by the Executive to the effect that judges were responsible for the delay in the disposal of cases. He pointed out that even with a network of 14,000 courts and a working strength of 12,500 judges handling four crore cases, each judge is required to deal with 4,000 cases which is extremely high. In its 120th report, submitted on January 31, 1987, the Law Commission recommended that India ought to have 107 judges per million by the year 2000, the ratio achieved by USA in 1981. It also recommended that India should have 50 judges per million population by 1992. These recommendations were endorsed by a Standing Committee of the Parliament in its 85th report submitted in 2002. The Chief Justices complained that the Judiciary was held responsible for the mounting arrears of court cases even though it has no control over the allocation of resources and cannot create additional courts, appoint adequate court staff or augment court infrastructure. At the Chief Justices Conference, held in 2007, the High Courts found that the institution of civil cases in the High Courts far exceeded the disposal despite the increase in the rate of disposal. On an average, a High Court judge disposes 2,374 cases and a Subordinate Court disposes 1,346 cases in a year. The Chief Justices’ Conference concluded that, if the existing strength of judges wasn’t adequate to dispose of cases equal to the number of new cases fi led, then the backlog couldn’t be wiped out without the appointment of a larger number of judges. In fact, the backlog is likely to increase. The Judiciary correctly identifi ed the very poor fi nancial allocations made by the Executive as the

1 Speech delivered by Chief Justice RC Lahoti on 26 November 2004. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |351 CHAPTER FIFTEEN root cause of the problem. Apart from Delhi, every state government provided for less than one percent of its budget for the Judiciary. Delhi was the only exception with a fi gure of 1.3 percent. The Tenth Plan (2002-2007), allocation was only rupees 700 crores, which is 0.07 percent of the total plan outlay of Rs. 8,93,183 crores. The Chief Justices Conference concluded that, “ Such meagre allocations are grossly inadequate to meet the requirements of the Judiciary. The governments, therefore, need to allocate adequate funds for additional funds for adequate man power.”2 The National Commission to Review the Working of the Constitution noted, in its report submitted to the government in 2002, that the fi ve-year Plans and the Finance Commission had made no separate provision for funds for the Judiciary for several decades. At the Joint Conference of the Chief Justices of the High Courts and Chief Ministers of the States, held in September 2004 in Delhi, it was pointed out, by the Chief Justice of India, that “during the Eighth Plan (1992-97), the Centre spent Rs. 110 crores on improving infrastructure such as constructing courtrooms, etc. In the Ninth Plan (1997-2002), the Centre releases Rs. 385 crore for fulfi lling priority demands of the Judiciary. This was 0.07 percent of the Centre’s Ninth Plan expenditure of Rs. 5,41,207 crores. During the Tenth Plan (2002-2007), the allocation is Rs. 700 crores, which is 0.078 of the total plan outlay of Rs. 8,93,183 crores. The experience shows that these meagre allocations − of 0.07 percent and 0.078 percent − by the Planning Commission in the Ninth and Tenth Plans respectively are totally inadequate.”3 To add insult to injury, the Plan allocations, and the allocation of the Central Grant, was conditioned upon the state governments making a matching allocation. The Chief Justices recommended that expenditure on the Judiciary should come from planned funds, and that funds generated by the courts, ought to be kept in a separate account and the High Courts be given both fi nancial autonomy as well as expert fi nancial assistance. Though this was a long-standing demand of the Judiciary “governments have been reluctant to grant complete fi nancial autonomy to the High Court,”4 though this was a long-standing demand of the Judiciary. Chief Justice, KG Balakrishnan, in his presentation, on Judicial Reforms in 2008,5 counted the criticism of the President of India and the Speaker of the Lok Sabha to the effect that the Judiciary was responsible for the delays. A large number of cases, pending in courts, have the governance as a party indicating that lack of proper administration was the reason why citizens are driven to litigation. “Weak and ineffi cient revenue administration”6 has resulted in a “ poor land rights recording system”7 which was the main reason for the institution of a large number of cases. Secondly, fi nancial institutions had fi led a large number of cases seeking to recover money through criminal proceedings by using the Negotiable Instruments Act, thus converting the courts

2 Pg 256, Agenda Item No.3, Chief Justices Conference-2007. 3 Speech delivered by Chief Justice R C Lahoti on 26th November 2004. 4 Pg 629, Agenda Item No. 11, Chief Justices Conference-2007. 5 Speech delivered by Chief Justice KG Balakrishnan in the All India Seminar on “Judicial Reform.” 6 Pg 4, Speech delivered by Chief Justice KG Balakrishnan in the All India Seminar on “Judicial Reform.” 7 ibid. |352 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation JUDICIARY into “collecting agents for these fi nancial institutions.”8 Many of these institutions are privately owned by people engaged in giving usurious loans. As a result, the trial of ordinary criminal cases is seriously hampered. Thirdly, since insurance companies do not follow a fair procedure of acknowledging liability and dispersing amounts before the victims come to courts, there are a large number of motor accident claims pending before various tribunals. Fourthly, there are a huge number of land acquisition cases in court because of mal-administration in land acquisition cases where “the amounts awarded by land acquisition offi cer has [sic] never been reasonable or proper”9 and as a result “the parties are driven to litigation in a large number cases.” In criminal cases, the Chief Justices identifi ed the “ tardy and ineffi cient”10 investigations, resulting in a huge delay in the fi ling of chargesheets, as one of the reasons for delay in the disposal of criminal cases. “ Inept policing and weak prosecutions are hugely responsible for slowing down and protracting the criminal trials in many courts.”11 Fifth, the fi nancial impact of legislation is not assessed in India as is done in all developed countries. There, every Statute is required to have a fi nancial memorandum making provision for extra courts, extra staff, extra judges and the like. Statutes, in India, are merrily enacted without any such fi nancial memorandum. This puts a huge additional burden on the existing courts and increases the delay in the delivery of justice. Recently, it was reported, in a Delhi newspaper, that there was no space for a tribunal and so the judge began operating from his car. Lack of proper accommodation for courts and the residence of judges have been repeatedly brought to the notice of governments. Numerous complaints have been made to the government about the inadequate staff including stenos without whom a judge simply cannot work. When these complaints were brought to the notice of the Executive by the Judiciary they were dismissed out of hand by the Executive by using language like “rejected,” “considered not feasible” and “matter is receiving consideration by the government.” The Chief Justices found these responses “lacking in propriety and courtesy.” At this stage, it would be relevant to look at the three decisions of the Supreme Court in the All India Judges Association case. In the fi rst case, in 1992, the Supreme Court had to intervene on as simple an issue as law books for judges and, in the face of Executive apathy, ordered a provision of Rs. 200 a month for law books for a judge. The Supreme Court pointed out “that what is collected as court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue of the states.”12 In the second All India Judges Association case in 1993, the Supreme Court dealt with a review petition fi led by the governments questioning the right of the Judiciary to determine the service conditions of the judges and claiming that the directives involved “a very heavy fi nancial outlay”

8 ibid. 9 Pg 5, Speech given by Chief Justice KG Balakrishnan in the All India Seminar on “Judicial Reform.” 10 ibid. 11 Pg 6, Speech given by Chief Justice KG Balakrishnan in the All India Seminar on “Judicial Reform.” 12 (1992) 1 SCC 119. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |353 CHAPTER FIFTEEN which the governments could not afford. Characterising the attitude of the governments as hostile, the Supreme Court pointed out that, from as far back as 1958, the Law Commission of India, in its 14th report lamented, “though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more fi nancial assistance. On the contrary, in a number of states, not only had the administration of justice been starved so as to affect its effi ciency, but it has also been made to yield revenue to the state.”13 Dealing with the argument − that the fi nancial burden was heavy − the Supreme Court found that, compared to the planned and non-planned expenditure, the burden was “negligible.”14 Sec- ondly, “when the duties are obligatory no grievance could be heard that they cast a fi nancial burden.”15 The court castigated the governments for opposing the direction for the provision of law books to judges. “It is diffi cult to understand the attitude of the state governments…it is like asking artisans to work without their tools.”16 Regarding the accommodation of judges, the Supreme Court found that there was, in 1993, a shortage of 5,000 houses indicating that half of the Judicial Offi cers in the country were without proper accommodation. In the third All India Judges Association case 17the Supreme Court enforced the recommendations of the First National Judicial Pay Commission, which was constituted in1996 by the central government. The Commission noted that the expenditure on the Judiciary was “relatively low” being not more than 0.2 percent GNP.

–Combat Law May-June 2008

13 (1993) 4 SCC 288. 14 ibid. 15 ibid. 16 ibid. 17 (2002) 4 SCC 247. |354 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE LOK ADALATS DESPAIR IN PEOPLE’S COURT

he Lok Adalats are the fl agship of the Indian Judiciary for dispensation of justice to the poor. Though much propaganda has been done, by those involved in organising Lok Adalats, a Tsocial audit, by an independent body, is urgently needed. Are the Lok Adalats achieving their objectives as some would like us to believe? Are the poor satisfi ed by the “justice” meted out to them by this institution? There are mixed reactions from the fi eld. In some states, such as Jammu & Kashmir, the former Chief Justice, BA Khan, made excellent use of the Lok Adalats to bring relief to the victims of the recent earthquake. In some other states as well, enterprising judges have infused the Lok Adalats with energy and purpose. In many parts of the country, however, there are distressing reports of poor performance by the Lok Adalats though much of this failure is covered up by laudatory reports that do not refl ect the real situation. In matrimonial cases, lawyers, representing women, have expressed their strong dissatisfaction with the attitude and functioning of the Lok Adalats. In criminal cases, accused persons are compelled to plead guilty on being told that their cases would take years to so much as begin and that they would languish in jail in the meanwhile. In matrimonial cases when the wife desperately wants to opt out of marriage, Lok Adalats coerce the women to go back to their oppressive and violent husbands. In many cases, poor persons are forced to settle for very meagre amounts, the alternative being lengthy and expensive litigation in courts. In this situation, what are Lok Adalats are meant for? This is why an impartial review, by competent persons outside the Judiciary, is needed to as- sess the real impact of these institutions on the poor. Lok Adalats were accepted uncritically by the Indian Judiciary following a push by the World Bank and the Asian Development Bank who devised a non-formal legal situation for the poor. Though couched in clever language, the basic ideological thinking of the foreign institutions was that the formal legal system, with highly skilled lawyers and judges, should be reserved for the rich for commercial litigation and that these institutions should not be cluttered with “petty” issues of the poor. It is saddening to see, now that the law ministry naively blundered in following the dictates of the Asian Development Bank, anti-poor sentiments. The better approach is to recognise that India has one-fi fth the number of judges and courts that it needs. Particularly now, when the fi nancial situation is so positive, there is no reason why the legal system not be expanded drastically. The courts have intervened to improve the salaries of

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |355 CHAPTER FIFTEEN judges and rightly so. But the Judiciary seems reluctant to recognise that, without a massive expansion of the formal legal system, no justice is possible. Without this, arrears will grow, the rich will always get priority in courts and the poor will fall outside the justice system. A dangerous, unstable situation will emerge with the working class evolving their own means of getting justice. For this we will have only ourselves to blame.

–Combat Law November-December 2007

|356 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation JUDICIAL OVERREACH?

mmediately after stunning judgements of the Supreme Court – the Thomas (CVC) case, the 2G Spectrum case, the black money case and the Salva Judum case – politicians and corpora- Itions criticised “judicial overreach” in an attack on the Court. The CVC case saw the appointment of an offi cer against whom criminal proceedings were pending and in respect of whom the Leader of the Opposition had protested. The government went ahead regardless and arrogantly told the Supreme Court that if ethical standards were to be enforced many of the current judges would not have been appointed. In the Spectrum case, in the face of ministers looting the country and selling public assets for private gain, union minister Kapil Sibal brazenly said that there was no loss to the exchequer. In the black money case, law offi cers told the Supreme Court blithely that the names of the persons who had stashed away money in foreign banks could not be disclosed because of an agreement with Germany which required secrecy. When the Court looked at the agreement it found that it specifi cally provided for disclosure in the Court. In the Salva Judum case, government disrespectfully told the Court that the vigilante group paid for by the state and central governments and provided arms with permission to kill, were established to provide employment to Tribal youth and that they were given extensive training of two weeks in all kinds of issues such as the Constitution, the Criminal Procedure Code and so on. In all these cases, what was apparent was the disrespect the central government had for the institution of the Supreme Court so that its law offi cers were instructed to make arguments that any junior advocate would be ashamed to make. Apparently, the control of these proceedings lie in the hands of two distinguished advocates who are now the Home and HRD ministers. Did the Supreme Court jump the gun and make directions in undue haste? A perusal of the judgements will show that many of these cases continued for years and were heard time and again with repeated opportunities being given to the government to fi le affi davit after affi davit. In all these cases, the government was asked to explain the steps taken and proposed to be taken. The approach was to leave the government unhindered once a credible plan of action was disclosed even if government had been remiss in the past. But the government chose not to take advantage of the repeated opportunities given by the Supreme Court to set its house in order. On the 2G scam the Prime Minister responded to the nation by saying that the compulsions of coalition politics tied his hands. This was the clearest possible admission of a crime – Section 504 IPC which defi nes criminal breach of trust as the allowing of a person over whom one has control to misappropriate property. When governments fail to uphold the rule of law and men at the top act as if they are a pirate

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |357 CHAPTER FIFTEEN ship plundering the nation at will, the Constitution is effectively put into the dustbin. The courts are mandated to intervene in such circumstances to maintain the democratic structure of the Nation-State. The Prime Minister, however, thinks differently. When the Supreme Court requested the UPA government to give grain that was rotting to the poor free he called a press conference the next day and warned the Supreme Court not to interfere in policy matters. This is what he and the corporations mean by judicial overreach. The working people, to the contrary say, thank God for the Supreme Court!

|358 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation ZAHIRA SHEIKH : JUDICIARY’S FINEST HOUR

he decision of Justice Arijit Pasayat, in the Best Bakery case, is probably one of the ﬁ nest examples of how a court, functioning under the Constitution of India, can reassert the secu- Tlar fabric of Indian democracy and stand up to militant communal elements when they seek to undermine democratic processes. In March 2002, the Best Bakery at Vadodara was burnt by an unruly mob killing 14 persons. Zahira was the eye-witness. Zahira, after she resiled from her statement in the trial court, appeared before the NHRC and complained that she was being threatened by powerful politicians. The case arose when Zahira Sheikh, one of the victims of the Gujarat carnage, resiled from her statements, made in the court earlier, on being threatened when she was in the witness box. The trial court, without considering the circumstances which led to the witness turning hostile, acquitted the accused in a mechanical fashion. The High Court upheld the acquittal. The NHRC moved the Supreme Court questioning the acquittals. In criminal cases, the fate of the proceedings cannot always be left in the hands of the parties because crimes are public wrongs and they violate the public rights and duties of society in general. A fair trial therefore is a three-way situation where the victim, the accused and the community are vitally concerned. The role of a judge is not to sit passively and watch the battle − between the accused and the victim − but to actively get all relevant materials on record to determine the truth and administer justice fairly. The role of the trial court judge becomes even more important when unruly crowds attempt to obstruct judicial hearings putting the safety of the victim and her witnesses in peril. So also when the police or the prosecutor acts in a manner favourable to the accused. The Supreme Court held: “In a country like ours with heterogeneous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion taking lives of persons belonging not one or the other religion is bound to have dangerous repercussions and reactive effect on the society at large and may tend to encourage ﬁ s- siparous elements to undermine the unity and security of the nation on account of internal disturbances. It strikes at the very root of an orderly society, which the founding fathers of our Constitution dreamt of.” “When the ghastly killings take place in the land of Mahatma Gandhi, it raises a very per- tinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. No religion teaches violence

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |359 CHAPTER FIFTEEN

and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.” Looking through the records of the case, the Supreme Court found the public prosecutor acting as if it were the defence counsel; the Court a silent spectator indifferent to the “sacrilege being committed to justice;” and the investigation showing no interest in determining the truth. “The modern-day “Neros” were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected.” Dealing with the approach of the High Court and the acquittal, the Supreme Court said: “The entire approach of the High Court suffers from serious infi rmities, its conclusions lop- sided and lacks proper or judicious application of mind. Arbitrariness is found writ large. Irresponsible allegations, suggestions and challenges may be made by parties. Decency, decorum and judicial discipline should never be made casualties by adopting such intemper- ate attitudes of judicial obstinacy.” Justice Pasayat’s judgement should also not give rise to complacency. The rise of the militant Hindutva right wing has caused considerable confusion in the ranks of the Judiciary. Judges ultimately come from the society from which they are chosen. An intrusive enquiry − into what the stance of a judge on secularism is − should be held before the process of choosing judges is conducted. After all we have had a former President of India Giani Zail Singh remark, while he was in offi ce, that he was an admirer of Hitler. Therefore, when policemen, public prosecutors and judges are appointed to uphold the high values of the Justice System should we not, during the selection process, subject them to a scathing public scrutiny where their attitudes − towards the poor, women, Dalits and minorities − are scrutinised? I shudder to think what the fate of the Judiciary would have been had Justice Pasayat not taken action. What would be the opinion of the Judiciary in the minds of Muslims and other minorities who have suffered massacres again and again. Perhaps a time will come when the decision of the Constitutional Bench of the Supreme Court in SR Bommai’s case – “the State has no religion” − will remain only a pious wish with communalism infi ltrating and corrupting all the organs of the State.

–Tehelka March 04, 2006

|360 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation JUDICIARY MUST BE POPULAR WITH THE PEOPLE

n SP Gupta’s case (1981.Supp.SCC.87), Bhagwati, Fazal Ali, Desai, Pathak and Venkatara- miah J.J., explicitly held that Supreme Court and High Court judges, under Art 217 (1), can be Iappointed solely by the Executive. This seems to be the underlying assumption of Gupta and Tulzapurkar J.J. Primacy, to the opinion of the CJI, was denied by a 4:3 majority. This decision was an abject surrender, by the Judiciary to the Executive, in the matter of appointments. Thereafter, in Punchhi J.’s words, “somewhere down the line, on account of the majority opinion in SP Gupta’s case, the special and privileged position of the CJI was lost. This necessitated putting to job a larger Bench to examine whether his primacy could be retrieved and restored back [sic] to him. In the post-SP Gupta period the central government i.e., the law minister and the Prime Minister were found to be [sic] in a dominant position and could even appoint a judge to the higher Judiciary despite his being disapproved by the CJI.” In 1993, the Judiciary struck back. In the Supreme Court, Advocates-on-Record Association vs UOI (1993.4.SCC.441), Verma J. spoke for the majority holding that primacy be given to the opinion of the CJI formed collectively (i.e., after taking into account the views of his senior colleagues). The Executive acts as a mere check on the exercise of the power by the CJI. No appointment, to the High Courts or the Supreme Court of India, can be made unless it is in conformity with the opinion of the CJI. Verma J. attacked the majority view in SP Gupta’s case. He said, the whole idea − that the Executive be granted primacy since it accountable to the people while the Judiciary is not − is nonsensical and is, at best, “an easily exploded myth,” a “bubble which vanishes at a mere touch.” Accordingly, the majority held that the contrary view, in the SP Gupta case, was not correct. In the wake of the recent scandals relating to judges in various High Courts, the central government has seized the opportunity to reassert the primacy of the Executive. The National Judicial Commission Bill is an open attempt to make the Judiciary subordinate to the Executive and to fi ll the Judiciary with government appointees. The Bill calls for a Commission consisting of two government appointees and three members of the Judiciary. All that the government has to do is to win over one judicial member to have a fl ood of pro-government judges appointed. With judges nowadays being offered plum positions on retirement, winning over a sitting judge is not considered diffi cult. The Bill is subversive of the independence of the Judiciary and must be opposed tooth and nail. We have two views on this. Ravi Kiran Jain, from Allahabad, opposes the Bill and argues that a

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |361 CHAPTER FIFTEEN

Commission is premature. He suggests instead that the present system of appointments by a collegium of judges be continued. On the other hand, the Committee on Judicial Accountability, while also opposing the present Bill, has come out with its own draft. But the concept of an independent Judiciary is not limited to independence from the Executive. As Krishna Iyer J. wrote, it is independence from “the tycoon, the communalist, the parochialist, the faddist, the extremist and the radical reactionary.” The independence of the Judiciary has been undermined in many countries of South Asia. In Pakistan, superior court judges have been forced to swear allegiance to the military government. Those who refused were required to resign. In Sri Lanka a junior person, superseding seniors, was appointed as the Chief Justice. Judges often stand alone in defending cherished democratic principles. Their only ally is the people at large. It is only the working people who need the space that democracy provides. The rich have no time for laws. For the Judiciary to survive, it must be popular with the people. To be popular it must be responsive to the aspirations of the masses. Only then, by an alliance with the people of India, can the Judiciary face the inevitable onslaught of the Executive. Regrettably, this does not seem to be happening. So the Judiciary is today, more than ever before, vulnerable to attack. If there is any single factor, which gives the Judiciary a negative image, it is delay. Delay, in turn, takes place due to the paucity of judges. The SP Gupta case did enormous disservice to the Judiciary by holding that the issue of judge’s strength was not justiciable. Its recent reversal, and the direction to the government to increase the strength of judges, though welcome, has perhaps come too late. Independence of the Judiciary is also undermined from within. Corruption, communal and casteist tendencies, links with politicians and industrialists weaken this institution. For this, people at the bar, are also to blame. Judicial reform is inseparable from the reform of the bar for it is the bar which is often the conduit to corruption.

–Editorial, Combat Law August-September 2003

|362 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation UNIFORM CIVIL CODE SIXTEEN CHAPTER

1. We Need a Uniform Civil Code 2. The Judiciary and the Uniform Civil Code 3. Majoritarian Political Tendency Courtesy: Internet

Article 44 of the Constitu- tion provides for a Uniform Civil Code for the citizens and lays down that, ‘the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.’

|364 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation WE NEED A UNIFORM CIVIL CODE

oth in Shah Bano Begum as well as in Sarla Mudgal’s case, the Supreme Court found successive governments “wholly remiss” in acting in accordance with Article 44 of the Consti- Btution in bringing into force a uniform civil code. They requested the Prime Minister to take a fresh look at the matter. Now almost 20 years later, Chief Justice Khare, in John Vallamatton’s case, has repeated this plea. The Supreme Court, in the above cases, made the mistake of equating the Uniform Civil Code with Hindu reforms when the court remarked that “the utmost has been done to codify Hindu Law.” The Court thus fell prey to the ﬁ ctional belief that the Hindu Code is a perfect one which ought to be extended to other denominations in order to liberate women. In the 20s and 30s, the women in the forefront of the national movement, such as Kamladevi Chattopadhyaya and Sarojini Naidu repeatedly raised the demand for a comprehensive code. Broader political considerations prevailed though committees were constituted for the same, post-Independence attempts also met with resistance from conservative Hindu sections including the then President Rajendra Prasad. This is why, despite the codiﬁ cation of the Hindu Law, coparcenary concepts continued. Daugh- ters had equal rights only in the self-earned and not the ancestral property of the father and even this could be denied either by will or by converting the former into joint property. The father continues to be the natural guardian of a legitimate child and the mother of an illegitimate child, thus absolving the father of the moral responsibility of looking after the illegitimate child. In adoption, the emphasis is not on the child or the family but on male succession and a male child cannot be adopted if a biological male child exists. The woman cannot adopt and is relegated to the passive role of acquiescence. Bigamy is widespread only because there is no registration of marriages resulting in confusion about what constitutes a valid marriage. A genuine Uniform Civil Code will, therefore, immediately impact on Hindu Law as it is practiced today and eliminate discrimination against Hindu women. Does the BJP really want such a code? Reverse Trend Instead of moving towards a Uniform Civil Code, the country has moved in the opposite direction. The Special Marriage Act, 1954 required marriages to be registered. Opposition by conservative Hindu sections resulted in the amendment in 1955 by which a man could also claim maintenance from his wife. Finally, by the 1976 amendment, Hindus were taken out of this secular code. The second major reversal took place after the Shah Bano judgement. The All India Muslim Personal Law Board insisted that “it is irrelevant to Inquire as to how a Muslim divorcee should maintain herself… if a woman is indigent she must look to her relations to support her.” In

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |365 CHAPTER SIXTEEN response, Rajiv Gandhi introduced a Statute to nullify the decision and made the absurd claim that it was enacted to “safeguard the rights of the Muslim women” and “strengthen secularism.” In Arunachal Pradesh, a Bill was introduced seeking to codify Tribal customs including polygamy and child marriages. Women’s organisations, and secular groups, submitted the Adoption of Children Bill to the Rajya Sabha in 1972 and 1980 and then forgot all about it. They also presented to the government the Indian Marriages and Matrimonial Remedies Bill, 1986; the Indian Inheritance Bill, 1994; and the Indian Descent and Distribution Bill, 1994. The Catholic Bishops Conference of India submitted a Christian Marriage Bill 1993. All these initiatives, based on secularism and equality, were important steps towards introducing, albeit piecemeal, a Uniform Civil Code. They lie with the government today gathering dust. The Goa Code is uniform is some respects only and optional in others. Sons and daughters have equal rights to parental property. Only half the property can be willed away. Matrimonial property is joint but is managed by the husband. Polygamy and triple talaq are not permissible, although bigamy is permissible if there is no male child by the ﬁ rst wife. Women’s organisations report that the positive provisions are circumvented in numerous ways The Uniform Civil Code Conservative sections, of all communities, claim that a uniform civil code will undermine religion itself. Nothing could be further from the truth. A Uniform Civil Code will, in the ﬁ rst instance, do away with only those parts of personal law which infringe on the Constitution, particularly the Fundamental Rights and the equality clause. It will not touch personal laws, practices, customs, beliefs and traditions that are not offensive to women. Triple talaq and polygamy will naturally go. In Iran, Jordan, Syria, Tunisia, Morocco and Pakistan such reforms have already taken place. The time is ripe for a whole-scale reform of the personal laws of the Hindus, Muslims, Christians, Sikhs, Parsees etc. A Uniform Civil Code can go even further. It can do away with the fault-based divorce and replace it with irretrievable breakdown of marriage. It can create the concept of joint ownership of matrimonial property thus recognising housework. It can do away with discrimination based on sexual preferences. It can take a stand on violence against women, for violence is discrimination. Prominent women’s organisations, including representatives of the Muslim community, held a meeting in Bombay on Gender Just Laws in 1996 and called for a genuine Uniform Civil Code. At about the same time, a conference, on the human rights of women, was held in Lahore and made a similar demand. The time to act is now.

|366 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE JUDICIARY AND THE UNIFORM CIVIL CODE

ne of the fi rst cases on the Uniform Civil Code came up before the Bombay High Court in the State of Bombay vs Narasu Appa Mali (AIR. 1952. Bom. 84) where a Hindu chal- Olenged provisions of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 on the ground that it discriminated between Hindus and Muslims in prohibiting polygamy only among Hindus. The petition also impugned the practice of polygamy as permitted under Muslim Personal Law as contrary to Article 14, the equality clause, of the Constitution and therefore void under Article 13(1) of the Constitution of India. Later, in the case of Sant Ram vs Labh Singh (AIR.1965.SC.314), the Constitutional Bench of fi ve judges held that there were “compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression ‘all laws in force’.” (315). Article 14 of the Constitution of India lays down: ”The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 13 (1) lays down that all laws in force, before the commencement of the Constitution, in so far as they are inconsistent with the Fundamental Rights, shall, to that extent, be void. Reluctant to set aside, by declaring ultra vires a social reform statue that clearly left out the Muslim community and targeted only Hindus, the High Court took a path that had far reaching consequences for litigation on the Uniform Civil Code. First of all, the High Court held that the reference to “all laws” in Article 13 (1) excluded personal laws. The High Court also held that it was reasonable to not prohibit polygamy for Muslims for three reasons. The fi rst was that marriage was a “sacrament” for Hindus and a “contract” for Muslims. Secondly, the Hindu community may have been prepared “to accept social reform” whereas the Muslim community ”may not yet be prepared for it.” Thirdly, the State may legitimately bring about “social reform by stages.” (page 5). Attempting to justify the discrimination on the basis of religion, the High Court engaged in speculation as to the intent of the legislature, which is an approach not normally permissible. “The State Legislature may have thought that the Hindu community was more ripe for reform.” “The social conscience of the Hindus, according to the Legislature, may have been more in tune with the spirit of the reform.” (page 14). Article 44 of the Constitution provides for a Uniform Civil Code for the citizens and lays down that, “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” In the twelve-Judge Constitution Bench decision of the Supreme Court in Kesavananda

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Bharati vs State of Kerala [(1973).4.SCC.225], the Supreme Court laid down how important the Directive Principles were even though not justiciable. The “Directive Principles constitute the ‘conscience’ of our Constitution.”(233). “Without faithfully implementing the Directive Principles, it is not possible to achieve the welfare State contemplated by the Constitution.” (233). The Supreme Court then went on to describe the Directive Principles, “as laying down the path which was to be perused by our Parliament and State Legislatures in moving towards the objectives contained in the Preamble.” (235). Finally, the Supreme Court warned, “The nation stands today at the cross-roads of history and … may I say that the Directive Principles of State Policy should not be permitted to become ’a mere rope of sand’.” (236). Matters came to a head in the unanimous fi ve-Judge Constitutional Bench in Mohd. Ahmed Khan vs Shah Bano [(1985).2.SCC.556]. Directly criticising personal law, the Supreme Court began the judgement thus: “Na stree swatantramarhati” said Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the ”fatal point in Islam is the degradation of woman.” To the Prophet, is ascribed the statement, hopefully wrongly, that “woman was made from crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly.” (559). Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife. Undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. (559). After having started off on this provocative note, the Supreme Court dealt with the issue as to whether Section 125 of the Code of Criminal Procedure applied to the Muslim women as well notwithstanding their personal laws. The court held, “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent?” (562). The court concluded “ that Section 125 overrides the personal law, if there is any confl ict between the two.” (564). Then came a trenchant critique of the All India Muslim Personal Law Board: “The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to Inquire as to how a Muslim divorcee should maintain herself. The facile answer of the Board is that the personal law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her. This is a most unreasonable view of law as well as life.” (572). Dealing directly with the Uniform Civil Code, the Supreme Court commented: “ It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. There is no evidence of any offi cial activity for framing a Common Civil Code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have confl icting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. We understand the diffi culties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.”

|368 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation UNIFORM CIVIL CODE

(573). The Supreme Court then quotes from Dr Tahir Mahmood’s book, Muslim Personal Law, wherein he says, “In pursuance of the goal of secularism, the State must stop administering religion-based personal laws.”(573). In the same year, in Jorden Diengdeh vs SS Chopra [(1985).3.SCC.62], the Supreme Court held, “ It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Article 44 of the Constitution. Surely the time has now come for a complete reform of the law of marriage and makes a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. We suggest that the time has come for the intervention of the Legislature in these matters to provide for a Uniform Code of Marriage and divorce.” (72). In Thota Seharathamma vs Thota Manikyamma [(1991).4.SCC.312], dealing with Section 14(1) of the Hindu Succession Act, 1956, the Supreme Court held that the life estate, granted to a Hindu woman by a will, would become her absolute estate if she was already possessed off the property as the limited owner and the grant in recognition of the pre existing right. The Supreme court held: “To relieve Hindu female from degradation, disabilities, disadvantages and restrictions under which Hindu females have been languishing over centuries and to integrate them in national and international life, Bharat Ratna Dr Baba Saheb Ambedkar, the fi rst law minister and founding father of the Constitution, drafted the Hindu Code Bill. The Hindu Marriage Act, Adoption and Maintenance Act; Minority and Guardianship Act and the Succession Act, 1956, for short “the Act” became a part of this package. They ensure equal status and socio-economic justice to Hindu female. Thus I hold that the Act revolutionised the status of a Hindu female; used Section 14(1) as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man; extinguished pre-existing limitation of woman’s estate, or widow’s estate known as Shastric law and removed all the fetters to blossom the same into full ownership.” (330). The next important decision of the Supreme Court, impacting on the concept of a Uniform Civil Code, is the nine-judge Constitutional Bench decision in SR Bommai vs UOI [(1994).3.SCC.1]. Setting out the classical doctrine of the separation of religion from the activities of the democratic state, the Supreme Court held, “Secularism is a part of the basic structure of the Constitution. Religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. State is neither pro-particular religion nor anti particular religion. It stands aloof, in other words maintain [sic] neutrality in matters of religion.”(26). The fi rst sign, of a turn in the thinking of the Apex Court, was perhaps the Supreme Court decision in Anil Kumar Mahsi vs UOI [(1994).5.SCC.704] where the Court was confronted with Section 10 of the Indian Divorce Act, 1869. While the husband could seek dissolution of marriage on the ground of his wife’s adultery simpliciter, the wife had to prove adultery coupled with cruelty. Finding that “undoubtedly, it is the wife who is discriminated against” (707), the Supreme Court nevertheless dismissed the petition on the basis of truly atrocious reasoning. The court held: “Taking into consideration the muscularly weaker physique of the women, her general vulnerable physical and social condition and her defensive and non-aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |369 CHAPTER SIXTEEN the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband. What is further, the individual not willing to submit to the Indian Divorce Act or any other personal law is not obliged to marry exclusively under that law. They have the freedom to marry under the Special Marriage Act, 1954. Having, however, married under the Act and accepted its discipline, they cannot be heard to complain of its rigours, if any.”(708). Grave reluctance After 1994, in a majority of cases, the Supreme Court displayed a grave reluctance to even look at the issue of the Uniform Civil Code and Personal law. In Maharshi vs UOI [(1994.(1).SCC.713)], where a petition was fi led seeking a direction to government to consider enactment of a Common civil Code, the petition was dismissed with the critique, “These are all matters for Legislature. The Court cannot legislate in these matters. The writ petition is dismissed.” (714). Without reference to the long line of decisions on the subject, the Allahabad High Court in Rahmat Ullah and Katoon Nisa vs State of UP [(II(1994).DMC.64)], merrily went ahead and declared: “That under Section 2 of the Shariyat Application Act, the provisions of Shariyat Act will apply to the subjects mentioned therein and shall be deemed to have been continuing to be in operation only to the extent the provisions of the Shariyat Law do not come in confl ict or at variance with the provisions of the Constitution or any provision of the Constitution including the Preamble as well as provisions of Articles 14, 15, 21, 23 or those contained in the Directive Principles, i.e., Part IV and also those which are covered under head Fundamental Duties as any provision of law running counter to the provisions of Fundamental Duties if it comes in confl ict to the provisions of the Constitution or any of the above mentioned provisions of the Constitution, the codifi ed law or uncodifi ed law of customary law made applicable either under Muslim Personal Law – Shariyat Law Application Act or under Section 29 of the Hindu Marriage Act, will not prevail nor be operative so in nutshell any customary law either of Hindus or Shariyat Law or Muslim Law running counter to the provisions of the Constitution is not to prevail and is not to be operative. That any customary or codifi ed law if it perpetuates against the dignity of woman and runs counter to the fundamental duty imposed on every citizen to denounce or to renounce. Practices derogatory of the dignity of woman or some other duties enjoined and imposed on a citizen under that article then in that case the law being in confl ict with the provisions of the Constitution, the said law cannot be deemed to be operative as in case of confl ict between the constitutional provisions and other provision i.e., statutory or otherwise, the constitutional provision is to prevail.”(138). Then in Sarla Mudgal vs UOI [(1995).3.SCC.635)], the Supreme Court made one last attempt to persuade the government to introduce the UCC while at the same time making it clear that it did not intend to judicially enforce a code. The Supreme Court held, “ Pandit Jawaharlal Nehru, while defending the introduction of the Hindu Code Bill instead of a Uniform Civil Code, in Parliament in 1954, said, ‘I do not think that at the present moment the time is ripe in India for me to try to push it through.’ It appears that even 41 years thereafter, the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The governments -which have come and gone – have so far failed to make any efforts towards, “unifi ed personal

|370 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation UNIFORM CIVIL CODE law for all Indians.” When more than 80 percent of the citizens have already been brought under the codifi ed personal law there is no justifi cation whatsoever to keep in abeyance, anymore, the introduction of “uniform civil code” for all citizens in the territory of India. (639). One wonders how long will it take for the government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law- personal law of the Hindus- governing inheritance, succession and marriage was given a go-by as far back as 1955-6 by codifying the same. There is no justifi cation whatsoever in delaying indefi nitely the introduction of a Uniform Personal Law in the country. (649). In this view of the matter, no community can oppose the introduction of Uniform Civil Code for all the citizens in the territory of India. (650). The successive governments, till date, have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We, therefore, request the Government of India, through the Prime Minister of the country, to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India. We further direct the Government of India − through secretary, ministry of law and justice − to fi le an affi davit of a responsible offi cer in this Court in August 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “Uniform Civil Code” for the citizens of India. Sahai, J., in his short and crisp supporting opinion, has suggested some of the measures which can be undertaken by the government in this respect. (651). But today there is no Raja Ram Mohan Rai who single-handedly brought about that atmosphere which paved the way for the abolition of Sati. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and the Hindu marriage Act, revolutionising the customary Hindu law. The desirability of the uniform code can hardly be doubted. But it can concretise only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change. Much misapprehension prevails about bigamy in Islam. To check the misuse, many Islamic countries have codifi ed the personal law, “wherein the practice of polygamy has either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic republics of the Soviet Union are some of the Muslim countries to be remembered in this context). The government would be well advised to entrust the responsibility to the Law Commission which may, in consultation with the Minorities Commission, examine the matter and bring about comprehensive legislation in keeping with the modern day concept of human rights for women.”(652). In Pannala Bansilal Pitti vs State of AP [(1996).2.SCC.498)], Justice K. Ramaswamy, who was generally very gung ho about the UCC, surprisingly put in a word of caution when he wrote, “ A uniform law, though is highly desirable, enactment thereof in one go is perhaps may be counter- productive to unity and integrity of the nation.”(510). By 1997 however, Justice Ramaswamy had lost his patience. In Madhu Kishwar vs State of Bihar [(1996).4.SCC.125)], a Tribal custom, in the then State of Bihar, excluding a female line of succession was challenged as ultra vires Articles 14, 15, 21 of the Constitution. The majority of two Justices granted practical relief but repelled the challenge. They did so on the basis that if the court were to bring equality between the sexes by Judicial fi at then there would be a ”deafening KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |371 CHAPTER SIXTEEN uproar” to do the same in other situations as well. In this, the majority is right. But perhaps the time has come for the country to face the protest of the males in order to do justice to women. The majority wrote: “Brother K. Ramaswamy, J. seems to have not taken the view that Indian legislatures (and governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However, laudable, desirable and attractive the result may seem, it has happily been viewed, by our learned brother, that an activist court is not fully equipped to cope with the details and intricacies of the legislative subject can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. However, much we may like the law to be so we regret our inability to subscribe to the means in achieving such an objective. If this be the route of return on the court’s entering the thicket, it is far better that the court kept out of it. It is not far to imagine that there would follow a beeline for similar claims in diverse situations, not stopping at Tribal defi nitions and deafening uproar to bring the other systems of law in line with the Hindu Succession Act and Indian Succession Act as models. We are thus constrained to take this view, even though it may appear to be conservative for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us.” (135). K. Ramaswamy wrote the minority decision upholding the challenge. In doing so, he introduced a new angle that is to say the ratifi cation by the Government of India of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the requirement of the Convention that discrimination be done away with by the State. CEDAW requires the ratifying State to take appropriate legislative and other measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. It also enjoins the State “to ensure legal protection of the rights of women on equal basis with men.” (146). Justice K Ramaswamy then castigated discrimination on the ground of sex in matters of public employment and said that it “was buried fathoms deep and is now a relic of the past.”(152). Law is a “living organism” (152) which must, “constantly keep changing as civilisation and culture advances.”(152). So too must customs “undergo change with the march of time.” Approving of the decision of the Kerala High Court in Sheikriyammada Nalla Koya vs Administrator, Union Territory of Laccadives, Minicoy and Amindivi Islands (23.AIR.Ker.259), Justice K Ramaswamy held “the customs which are immoral and are oppose to public policy, can neither be recognised nor be enforced.” (153). In the Kerala case, the High Court held, “Is a custom, which appears unreasonable to the judge be adjudged so or should he be guided by the prevailing public opinion of the community inn the place where the customs prevail? It has been said that the judge should not consult his own standards or predilections but those of the dominant opinion at the given moment, and that, in arriving at the decision, the judge should consider the social consequences of the customs especially in the light of factual evidence available as to its probable consequences. A Judge may not set himself in opposition to a custom which is fully accepted by the community. But I think, that the judge should not follow merely the mass opinion when it is clearly in error, but on the

|372 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation UNIFORM CIVIL CODE contrary he should direct it, not by laying down his own personal and isolated conceptions but by resting upon the opinion of the healthy elements of the population, those guardians of an ancient tradition, which has proved itself and which serves to inspire not only those of a conservative spirit but also those who desire in loyal and disinterested spirit to make radical alterations to the organisations of existing society. Thus, the judge is not bound to heed even to the clearly held opinion of the greater majority of the community if he is satisfi ed that that opinion is abhorrent to right thinking people.”(153). Accordingly, Justice K Ramaswamy held that a Scheduled Tribe woman would succeed to the estate equally with the male heir with absolute rights. Justice Ramaswamy pushed the Constitutional law intrusion into personal law further in the case of C.Masilamani Mudaliar vs Idol of Sri Swaminathaswami Thirukoil [(1996).8.SCC.525)], where he held that “the basic structure permeates equality of status and opportunity. The personal laws, conferring inferior status on women, is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws, thus derived, must be consistent with the Constitution lest they become void under Article 13 if they violate Fundamen- tal Rights.”(527). Referring once again to CEDAW he wrote, “Article 2(e) of CEDAW enjoins the Supreme Court to breathe life into the dry bones of the Constitution, International Conventions and the Protection of Human Rights Act and the Hindu Succession Act to prevent gender-based discrimination and to effectuate Right to Life including empowerment of economic, social and cultural rights to women.” (528). Full about-turn A full about turn took place in 1997 with the summary dismissal of a series of petitions seeking a declaration that polygamy and talaq, as found in Muslim personal law, offended Articles 14 and 15 of the Constitution of India and was discriminatory to females. The Apex Court in Ahmedabad Women Action Group vs UOI [(1997).3.SCC.573)], referring selectively only to the line of decisions which recommended a hands-off approach and studiously avoiding any reference to the numerous decisions to the contrary, dismissed the petitions thus: “At the outset, we would like to state that these writ petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Senior Advocate before us wholly involve issues of the State policies with which the Court will not ordinarily have any concern. Further, we fi nd that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lied somewhere else and not by knocking at the doors of the courts.”(575). A similar approach was followed by the Supreme Court in Lily Thomas vs UOI [(2000).6.SCC.224)] where the Court went further and attempted to kill the debate on the code by analysing the earlier decisions thus: “No directions appear to have been issued by this Court for the purpose of having a Uniform Civil Code… this court has not issued any direction for the codifi cation of a Common Civil Code.”(258). Soon thereafter in John Vallamattom vs UOI [(2003).6.SCC.611)], Chief Justice VSN Khare speaking for the code said, “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a Common Civil Code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies.”(627).

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |373 MAJORITARIAN POLITICAL TENDENCY

ne would have thought that, with an instrument as marvelous as the Indian Constitution, mandating equality in Article 14 and specifi cally prohibiting discrimination on the grounds Oof religion and sex in Article 15, would not be diffi cult for Indian courts to achieve. Yet, 60 years after Independence women are extensively and routinely discriminated against. This happens because the personal laws of religious communities allow men to perpetrate violence and wrongdoing under cover of religion. No court can Inquire into barbaric anti-women practices “sanctioned” by religion. Most perpetrators, therefore, consider themselves immune from prosecution. Doctrines of legal pluralism or multi-culturalism have also been used in aid of sustaining such immunity. That the framers of the Constitution thought that, it was then not an opportune time to mandate in the Constitution directly the Uniform Civil Code or a Gender Just Code (the terms are used inter changeably), is understandable particularly in the context of the massacre of the Muslims that took place in India during the Partition of the country into India and Pakistan. Perhaps the earlier judicial decisions, making all sorts of excuses for not testing personal laws against the Constitu- tion, were also comprehendible. But today, 60 years after Independence, what justifi cation can possibly exist for the entrenchment of inequality by sustained practice. The issue was perhaps complicated by the intervention of a dominant right wing majoritarian political tendency that derided the Muslim community for practices such as polygamy and triple talaq and coupled this campaign with repeated exercises of ethnic cleansing. In such circumstances, how did secular organisations, women’s groups and human rights NGOs advocate a twin battle against both patriarchy and against the majoritarian forces! Within the secular movement a tendency emerged proposing a two-stage struggle where the fi ght against the Hindu right was to be waged here and now, while the women’s movement, for eman- cipation, was to be postponed. Another tendency, equally secular, argued that women’s rights, within the family and the struggle for women’s liberty, generally could never be deferred and so both the battles had to be fought simultaneously. The schism, in civil society, was also refl ected in the Judiciary. While many judges took the hands-off approach, there were others who wanted a Uniform Civil Code immediately. Complex interactions − between the legal system and civil society − unfolded which led ultimately not only to a stalemate but also to the deepening of religious fi ssures in society. Many mistakes were made when the Judiciary called stridently for the Uniform Civil Code. They were on the right track, but they used language derogatory to Islam. Was it right for the secular forces to withdraw from this important measure of reform when the minority community exploded

|374 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation UNIFORM CIVIL CODE in protest? Could they have stood ﬁ rm and separated the wheat from the chaff, so to speak, upholding the substance of the judicial pronouncements while criticising the scorn patent in the writing? Could they have taken a heroic independent stand? There has been scattered scholarship supporting the proposition that, reform from within the community, is the only way forward. There has been very little scholarship on how futile it is to expect the oppressor and oppressed, within the minority community, to agree upon fundamental reform. In such circumstances, perhaps, the only way forward is to struggle within while simultaneously pressing the State to enact legislation, making all matters relating to women irrespective of religion, subject to the equality requirement.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |375

POLICE REFORM SEVENTEEN

1. Institutionalised Communalism in the CHAPTER Police Force and the Breakdown in the Criminal Justice System 2. Fascist Attack on the Bar 3. Policing the Police 4. Encounters and Police Misinformation 5. Book Review: A Remarkable Reading Courtesy: Internet

The police force in India continues to this day to be modeled along the lines of the British paramilitary forces that policed the colonies by terror. After the break-up of the empire, the British police was reformed but the police forces in the colonies raised corruption and torture to an art form.

|378 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation INSTITUTIONALISED COMMUNALISM IN THE POLICE FORCE

he events, unfolding in Gujarat and the shameful role of the police force there, once again bring into focus the need, for this nation, to squarely confront the issue of institutionalised Tcommunalism. From 1961, commission after commission have indicted the police. The Jus- tice Shrivastava Commission of enquiry Report of 1961, on the riots in Jabalpur, Sagar, Damoh and Narasinghapur, found “the intelligence department…entirely ineffi cient and the law and order authorities were responsible for a laxity in investigation and prosecution which resulted in large acquittals.” The Justice Dayal Commission of enquiry, into the riots in Ranchi, Sholapur, Malegaon, Ahmedna- gar, Sursand, Jaipur and Suchetpur in 1967, found “that either there was no police force to deal with the mischief makers or it had no directions to act. The Justice Reddy Commission, investigating the Ahmedabad Riots of 1969, found the law enforcement agencies passive even though they “could not but have known that the communal atmosphere had become tense.” The Justice Madon Commission, looking into the distuburances at Bhiwandi, Jalgaon and Mahad in 1970, found “policeman either did not prevent Hindu rioters from indulging in rioting, looting and arson or showed communal discrimination in dealing with the rioting mobs, or gave incorrect information to the control rooms, or lodged incorrect FIRs in order to make out that the person who were responsible for looting and arson were Muslims not Hindus or to assist Hindu rioters in burning and looting Muslim properties… The working of the Special Investigation Squad is a study in communal discrimination. The offi cers of the squad systematically set about implicating Muslims and exculpating Hindus irrespective of whether they were innocent or guilty. Hindus belonging to the Shiv Sena Rashtriya Utsav Mandal were wrongly classifi ed as ‘A’ category and investigations closed. The Justice Vithyathil Report, of the Commission of enquiry into the Tellichery disturbances in 1971, set out the evidence of the Dy. SP who said that “he had to curb his rank and fi le who could not restrain themselves when they met Muslims on the road… many yelled at them to go to Pakistan… They were infected by the virus of communalism.” The Justice Narain, Ghosh and Rizvi Commission of enquiry, into the Jamshedpur Riots in 1979, received wide ranging complaints regarding the anti-Muslim behaviour of the Bihar Military Po- lice. The NC Saxena Enquiry into the Meerut riots of 1982 summarised the orders of senior police offi cers in one phrase “Muslims must be taught a lesson.” The police and the PAC faithfully

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |379 CHAPTER SEVENTEEN implemented this policy. Looting and arson in this context was considered legitimate and necessary and was therefore ignored. The Sixth report of the National Police Commission, 1981 found “several instances when policemen have shown an unmistakable bias against a particular community while dealing with communal situations. The National Integration Council found “the most disquieting feature in recent times is the loss of credibility of the police in the effective tackling of communal disturbances. Delhi (1984) Pioneering work has been done by Vrinda Grover, an advocate from Delhi, on the precise role of the police during the Sikh massacre of 1984. A similar study has been done by Jyoti Punwani and Shakil Ahmed at Bombay on the massacre of Muslims in 1992. The Justice Mishra Commission, looking into the Sikh massacre in 1984, censured the police for not only failing to control the violence, but also in some instances instigating it, creating conditions conducive for its spread and for botching investigations afterwards. It noted that the police were actively involved in the violence. It censured their actions in taking away arms from the Sikhs who were trying to defend themselves. Allegations, regarding police offi cers, were dropped from the FIRs. The emergency police telephone number remained non-responsive. The police were seen mingling and marching with the mobs. FIRs were either not recorded, or wrongly recorded or vague omnibus types of FIRs were recorded. The investigations were casual, perfunctory and faulty. Most statements recorded would end with a declaration that the witness was unable to identify any person among the mob. No attempts were made to obtain corroboration not even by family members. Accordingly chargesheets were fi led with the complaint as solitary witness. After the Justice Mishra report, the Delhi Administration appointed the Justice Kapur and KL Mittal Committee. The latter, in a detailed report, identifi ed offi cers for good conduct, dismissal, departmental Inquiries or further investigations. The government did not release the report to the public and took no action. There was also evidence before the commission (including Police Commissioner Tandon’s statement) to show that whenever the police took action the situation did not deteriorate. Thereafter the Jain-Aggarwal Committee, in its report, expressed its shock to fi nd lapses by the police at every stage of the investigation. The committee got the impression that senior police offi cers abdicated their responsibilities. “Investigation had abruptly stopped for no good reason.” Accused persons, though named in the FIR, were left out of the chargesheets without convincing grounds. In his deposition, before the Nanavati Commission, Ram Jethmalani stated that when he called on the then Home Minister PVs Narasimha Rao to apprise him of the situation, he found him “list- less and unconcerned.” The Kushwant Singh deposition includes an account of a sub-inspector of the Delhi Police who stood by watching the looting. Jaya Jaitely deposed that the rioters “were not afraid of the police who were standing by.”

|380 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS

Observation by the courts In State vs Abdul Azis, the sessions court dealing with a Sikh massacre, characterised the police action as “grossly negligent and a grave dereliction of duty.” In a similar case − in State vs Kanak Singh − the judge observed that “the police were not at all interested in investigation but was interested in hushing up the things.” In State vs Ashok, the court acquitted the accused noting that the police had not conducted the test identifi cation parade properly. In State vs Ram Pal Saroj, the sessions court observed that in most cases “in order to help the accused persons police had given wrong facts.” He then went on to say “the criminal law system in this country has totally failed. The manner in which the trial of the riot cases proceeded is unthinkable in any civilised country. It amounts to total wiping out of rule of law.” Mumbai (1992) Justice BN Srikrishna’s report found specifi c police offi cers “utterly trigger happy,” going on a “rampage,” “guilty of unnecessary and excessive fi ring resulting in the deaths of innocent Muslims,” “extremely communal,” “attempting to shield miscreants belonging to the Shiv Sena,” “responsible for allowing a violent mob to hack to death one Abdul Razak, actively aided and connived with the mob,” “squarely responsible for virtually handing over Babu Abdul Shaik to the mob resulting in his being hacked to death,” “stood by as a silent spectator while assaults took place,” “suppressed evidence,” “mislead senior police offi cers,” “guilty of inhuman and brutal behaviour,” “openly indulging in riots while carrying a naked sword along with Shiv Sena activists,” “looted articles and furniture,” “allowed kidnapping of an 18-year old girl and brutal murder of a handicapped person,” “communally biased against muslims.” Advocate Shakil Ahmad and Jyoti Punyani found, on looking into the action taken report (ATR) of the Maharashtra Government, that most of the offi cers, against whom severe strictures were passed by Justice Sukrishna, were in fact promoted. Many were granted anticipatory bail. All were enlarged on bail with the public prosecutor often not arguing for their detention. Not a single policeman spent a single day in police lock up or jail. In the few instances departmental inquiries were completed but the punishments imposed were farcical – such as reduction in rank or cut in increments. A few were compulsorily retired. Despite Justice Srikrishna’s detailed Enquiry and strictures most were exonerated departmentally. On the criminal prosecution front, it was the same dismal story. Even FIRs were not registered in many cases. Chargesheets were not fi led. The outcome of the two procedures known in the justice system – departmental inquiries and criminal persecutions − were obvious. Most departmental Enquiries result in exoneration or minor punishments; all criminal persecutions result in acquittals. Commissions ignored The reports, of the Commission of Enquiry, were treated as waste paper. Though headed by senior judges of the High Courts or senior administrators their meticulous fi ndings were ignored. The fact that, under Commissions of Enquiry Act, 1952, the reports are not binding was wrongly taken by governments to mean that they could do as they like with the reports, rejecting sound suggestions and fi ndings substantiated by evidence adduced before the commission. Nothing could be further from the truth. It is not only the provisions of the Commissions of Enquiry Act but a higher

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |381 CHAPTER SEVENTEEN power, Article 14 of the Constitution, that informs government action, requiring government to act rationally and not arbitrarily. It is true that the fi ndings are not binding. But from there to the proposition − that the government can disregard commission reports at will − is a long jump. What the section means is that government can depart from the commission fi ndings but only for good reason. Once the fi ndings are accepted by the government, or no good reason can be shown for departure, government, controlled by Article 14, is bound to act in accordance with the commissions Report. Article 311 (2) This article of the Constitution confers an extraordinary power on the government to dismiss a government servant without a departmental Enquiry where it is not reasonably practicable to hold such an Enquiry or where the President or Governor is satisfi ed that, in the interests of security of the State, it is not expedient to hold such an enquiry. The time has come now to bring this Article into full play against police offi cers who engage in communal crimes. On the commissions of enquiries fi nding them guilty they must be dismissed forthwith and the charade of a departmental enquiry dispensed with. In most cases commission reports come at the end of a lengthy enquiry where the policemen concerned are also heard. After such a lapse of time it is futile to expect witnesses to depose once again and that too before a hostile police enquiry offi cer. It is, therefore, not reasonably practicable to hold a departmental enquiry. In cases, where departmental inquiries are to be conducted, government should not leave this task to the delinquent’s superior offi cer but establish special and autonomous disciplinary boards with senior police and non-police personnel. The proceedings, of this board, should be open to the public. For the prosecution of police offi cers, the central government should establish a special and autonomous cell of senior police offi cers devoted exclusively to the prosecution of policemen. Institutional Racism abroad Institutional racism in the police force was fi rst discussed in 1981 in the Lord Scarmans report into the Brixton Disorders. He dismissed the allegation and resorted to the “bad apples” analogy. In 1997 Tony Blair set up a high level commission to look into the murder of a black teenager, Stephen Lawrence, in 1993 who was attacked by white youth who called him “nigger” and stabbed him in his chest and arm. Sir William MacPherson recognised explicitly that institutional racism did in fact exist. He defi ned institutional racism as “the collective failure of an organisation to provide appropriate and professional service to people because of colour, culture or ethnic origin.” MacPhearson recommended a comprehensive system for the reporting and recording of racist crimes at locations other than police stations, increasing minority ethnic recruits, allowing the Freedom of Information Act to apply to all areas of policing, that the Race Relations Act should apply in full force to the police, the dismissal of offi cers for racial words or acts and that there should be an independent investigation agency in respect of complaints against the police and a reform of police training. |382 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS

In Canada, in 1998, the Manitoba Government ordered a public Enquiry into the Administration of Justice and Aboriginal People which recommended a professional Aboriginal police force. In New Zealand, the Marshall Enquiry (1989) the Blood Enquiry (1991), the Manitoba Enquiry (1991) and the Osnmaburgh-Windigo Report (1991) were strongly critical of police bias. In Israel, the Or Commission, which looked into the deaths of 13 Arabs in 2000, described the “institutional racism” practiced by law enforcement agencies in the country and the systematic violation of civil rights by the security forces. Conclusion The seriousness of the crisis lies not merely in the fact that there has been a breakdown in the administration of justice, but more there has been a breakdown in the constitutional machinery itself. The principal law enforcement agency has emerged as the single biggest threat to democracy. The time to act is now. The ball is in the court of the judges. It is only they, who by judicial pronouncement, can lay down a new law for the effective and immediate prosecution of police ofﬁ cers who engage in communal crime and for their immediate dismissal from the force.

–Combat Law April-May 2002

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |383 FASCIST ATTACK ON THE BAR

he vicious attack, by the Tamil Nadu Police on lawyers and judges, is the single most important event after Independence, highlighting the decline of democracy and the awesome Trise in the power of the police. There have been many attacks of a similar nature where policemen, in different parts of the country, have brutally attacked unarmed protesters and these beatings have been extensively covered by the media. It was perhaps the greatest mistake, for civil society groups and the Judiciary, to have let those incidents pass without action taken against the police. But, as no policeman was punished for the documented excess, the police are confi dent, in their belief, that they have a right to attack the civilian population with impunity and that no court in the country is going to take punitive action against them. We have seen brutal attacks on trade unions when they engaged in perfectly legitimate and non-violent demonstrations. We have seen the police open fi re repeatedly against protesting Adivasis refusing to leave their lands. We have seen protests of disability groups being lathicharged. Women activists have been pulled by their hair and dragged across the streets while their colleagues have been hit with lathis as they lie cringing on the ground. How did this come to pass? How has the police become so audacious? Background To understand the attack on lawyers and judges, one would need to study the changing scenario in Tamil Nadu regarding the new and large crop of lawyers that have entered the profession as fi rst generation advocates. The earlier generations were substantially upper class and caste with family connections so that the entrant at the Bar had a sense of continuity and fi nancial stability. For many years however, a new group of lawyers, from the poorer sections of society and from the depressed classes, have entered the profession. Having no previous connection with the legal profession and coming from the poorer sections, they experience a great deal of angst and alienation. Many of these persons started their practice at the level of the police stations and the magistrates’ courts. There has been growing friction between the police and this section of advocates for quite sometime now and the situation has become so alarming that lawyers often complain of being beaten up by the police. These beatings may partly be due to the fact that many of the lawyers are Dalits and they are speaking up for their clients energetically. These assaults on advocates in the districts by policemen have gone largely unreported. Sri Lanka It is also important to understand the connection between the situation in Sri Lanka today and

|384 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS the sentiments of the people of Tamil Nadu and the effect this has had on the lawyers’ movement. Certain sections have spread the disinformation that the lawyers’ movement is dominated by pro-LTTE elements and a colour is sought to be given to the movement as if it is linked to the LTTE in Sri Lanka. Nothing could be farther from the truth. The attacks on the civilian population, particularly Tamilians, by the President of Sri Lanka and the Sri Lankan Army have given rise to anger and resentment in the Tamil population in India. Refugees, politicians and trade unionists have visited India and have shown ﬁ lms and given information about the atrocities being committed on the civilian population particularly women and children. One would have expected the Union Government to act. One would have thought that the state government would protest. But the political imperatives of the alliance − between the UPA Government and DMK − have led to a rather unusual situation. The Union Government supports the Sri Lankan operations and the DMK has fallen silent. De- spite political space, opening up for political agitations on the issue of Sri Lanka, the state has remained generally placid. One of the sections vigorously protesting was that of the lawyers. A boycott of some courts was enforced for sometime, after which the lawyers returned to work. But the protests continued. These demonstrations probably rankled both the Central and the state governments and provided the police with an opportunity to settle old scores with the advocates. Walking in the massive rally of the advocates at Chennai, called by the various Bar Associations, I asked my friends if there was any truth in the stand of the police that the LTTE supporters were masterminding the agitation. All of them (and these are serious and senior advocates and social activists) held the view that LTTE sympathisers, among the advocates, would be a small section incapable of exercising control. They did, however, have a common view that Tamil sentiment − over the Sri Lanka massacres − had upset the entire legal fraternity and that this was the reason for the strong feelings over the boycott of the courts. There is also, among many advocates, a sophisticated understanding of the LTTE as simultaneously being the spirit and heart of Tamil resistance in Sri Lanka while at the same time engaging in unacceptable excess and human rights violations. Thus, to reduce the agitation to a manipulation by a small but inﬂ uential section of LTTE supporters, would be a grave misjudgement. Unconditional support, by the central and state government to the Sri Lankan government and Army, may turn out to be a major error of judgement. Reasonable voices, commenting on the Sri Lankan situation, point towards the emergence of Army rule on a prolonged basis in the Island and the large-scale violation of human rights that is expected to exacerbate over time. The implications are serious not only for the Tamil population, but for the entire civilian population and the far reaching consequences of the Indian government’s support − for the Army operations − may only unravel and be known in the months and years to come. Justified strike This brings us to the issue of the rights of lawyers (and I dare say of judges too) to boycott courts and to go on strike. I do wish to make the point that the traditional formulation − to the effect that lawyers and judges have no right to go on strike − is overbroad and violates the Funda- mental Right of freedom of speech and expression and the right to form associations. There is

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |385 CHAPTER SEVENTEEN however, a substantial kernel of truth in the proposition that lawyers generally ought not to strike work since such a strike disrupts the functioning of the court and causes grave inconvenience to clients. This ought to be the general rule. It cannot, however, be a universal rule and there can be situations so grave that exceptions can be carved out. This exception would be in circumstances where constitutional and democratic functioning has become diffi cult and lawyers and judges are justifi ed in wanting to protest and even to go on strike. I do not wish to comment on the boycott of the courts on account of the situation in Sri Lanka because, in any case, that boycott has been called off. But I am certain that the strike of lawyers, after the assault on the lawyers and judges by the police, was perfectly justifi ed in the extreme circumstances that prevailed. By way of an example, it could be possible to argue that the supercession of Justice HR Khanna − on him writing a dissent in the ADM Jabalpur case (the emergency case) − was a fi t situation for a strike both by lawyers and judges. In this regard it is useful to look at the situation in Pakistan and the reinstatement of the Chief Justice after the lawyers’ agitation. If the Indian proposition of law were to be applicable in Pakistan, the lawyers would be restricted to the writing of protest letters, wearing black arm- bands and perhaps fi ling petitions before the very judges who had sworn allegiance to the then President Musharaff! It is precisely because the lawyers took to the streets, boycotted the courts and engaged in “unruly” behaviour risking their lives in the protest that the balance of political power shifted in their favour. Therefore the proposition − that lawyers should stay away from politics and agitations even when human rights are violated − is too narrow to be accepted. One has only to read of the agitations and role of lawyers in the national movement and their resistance during Emergency, to understand that a viewpoint − which says that lawyers should not agitate or only protest “peacefully”− is a political stand which supports the State and the status quo. Provocation From the common story − emerging from the lawyers whom I respect and trust − it appears that a politician, with some premeditation and with a considerable group of supporters, sought to intervene in a proceeding with which he was not concerned at all. This was a proceeding where a challenge to a state government decision − to allow non-Brahmin priests to perform ceremonies in a temple − had been rejected by the single judge of the High Court and the matter was pending in Appeal. It seems that when the advocates, appearing in the case, opposed the intervention application a provocative remark was made by the politician accusing the advocates of being LTTE-funded and his companion made derogatory remarks that the lawyers were benefi ciaries of the reservation policy. The rest is history. The story has an air of conspiracy to it, almost as if persons had preplanned the provocation and the anticipatory reaction with a view to get an opening to attack the lawyers. It is certainly an angle that deserves to be investigated by an independent and credible body. Court drama The attack, that followed, has all the makings of a planned and premeditated assault. The police gathered in large numbers. It appears that they had gathered stones and other missiles. They

|386 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS were well armed. They entered the court premises, destroyed court property; beat up the lawyers, including women lawyers mercilessly and also assaulted High Court Judges and court staff with impunity. Thereafter, they went out on to the streets, went into the offi ces of the advocates and beat them mercilessly there. They smashed cars and scooters. It was rampage of the kind only seen during the British rule. The lawyers have an interesting take on the partial burning of the police station. They say that there were hundreds of policemen in and around police station and that, therefore, there was no chance at all that advocates would venture to set the police station on fi re. They also allege that the police brought certain persons dressed in white shirts and black pants to set fi re to the front part of the police station. Having studied closely, many cases of assaults by policemen of civilian populations, I believe the advocates’ point of view. It was just the other day in Kathikund Block, in Jharkhand, where the police opened fi re on a peaceful Jail Bharo Aandolan of Adivasis. I was told by the Adivasis that the policemen brought an old bus to the village and set it on fi re to justify the use of fi re arms against peaceful protesters. This appears to be a common and very effective police tactic. A professional police force is taught two principles in riot control. The fi rst is the use of minimum force and the second is the sustaining of police injuries with non-retaliation. In controlling a force, that is unarmed, the entire focus of the police is to see that the group disperses. Hot pursuit is never done. The police dig in, they protect themselves and using shields prevent the expansion of the zone of confl ict. If any of their members are injured by stones or bottles or even Molotov cocktails, the injured are removed from the scene and put in ambulances but no retaliation takes place. The Indian police, on the other hand, have a hair trigger revenge response. They easily loose their temper, pick up stones and hurl them at protesters and are only too ready to attack unarmed rioters and shoot them dead. The video recordings, of the incident, will show that it was only too easy to control the advocates and to cause tempers to cool down and to have them disperse. The approach should have been to appeal to well known members of the Bar to intervene and bring about peace. Undoubtably that would require patience. This was not an unusual situation at all and not one which the police should be unable to control. Perhaps the police had no intention of controlling the resentment after the provocation by the politician who turned up on the scene. Perhaps they expected it. Perhaps they had planned it. In any case, it would appear that the police needed, and perhaps created, a situation where they could get into the courts and humiliate the lawyers by beating them black and blue. Urgent reform It is necessary, at this point, to make a little digression and say a few words about the nature of the police force and the need for reform. This force has become, over the years, the largest body of the organised crime in the country. It engages in murder, extortion, real estate deals, gun running and drug traffi cking, the traffi cking of girls, corruption on a large-scale and violence against the poor as a matter of course. Fine and upright members of the police force, though numerous, fi nd themselves unable to do their duty fearlessly and without political interference. Upto the 1990s, the Judiciary used to exhibit some concern and exercise some control over the police and KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |387 CHAPTER SEVENTEEN there are a number of path breaking decisions of this period where the police have been punished for torture, executions and disappearances. A comparative study, of the subsequent period, would probably show that the Judiciary sees to be less interested in controlling the police, as a result of which, the message went out that the police could act at will. They acquired awesome extra-legal powers. The media played a considerable role in creating heroes out of killers in uniform and this led to a view, in some quarters, perhaps also in certain sections of the legal profession, that the law ought not to interfere with the police when they break the law ostensibly in the public interest. Though we inherited the paramilitary model of the police force from the UK and our forces were similar to the police in Ireland, both these countries carried out substantial reform. India failed to reform its police force, which retains its non-professional killer mentality to this day. All that we have − in terms of police reform − is a scanty petition fi led by a former policeman in the Supreme Court seeking reforms from a policeman’s point of view − i.e., seeking to rid the police force of political control thereby concentrating greater powers in the police itself. What is needed is a studious attempt to look at reforms in the UK, Canada, South Africa and elsewhere and to bring about drastic reform in India to weed out violence, corruption, casteism, communalism and sexism, introduce professionalism and a scientifi c approach and to eliminate political interference in the police work. There is, however, no sign of that on the horizon. A study of the use of strong-arm tactics by the Tamil Nadu police will probably show that, as compared to other states, Tamil Nadu is in the forefront of the use of brutal force. If the attack on the lawyers and the judges is understood, in this social and historical background, it will not be diffi cult to comprehend that this most horrendous assault was not a one-off incident but a part of a continuum of police violence. No body of persons, other than that of lawyers, stood in the way of undisputed police raj. No institution stands in the way of unfettered police rule as the Judiciary does. The Bench and the Bar are the only institutions that control the exercise of police power. There is a section of the middle class infl uenced by what they see on television who believe that the police ought to be given a free hand and that the law, with all its technicalities and delays, ought not to come in the way of the police when they take the law into their own hands and bypass the legal system. This vocal section of the middle class play, in the media, a role disproportionate to their numbers and creates an impression that their views represent majority thinking. Nothing could be more wrong. The working classes suffer the violence of the police on a day-to-day basis and have no illusion whatsoever as to the Fascist nature of the police force. This large part of the society looks to the Judiciary and lawyers to protect them from the police. In this sense the public at large and the legal profession have an important role to play in controlling the police and strengthening civil society’s control over the force. If the Bench and the Bar were to perform their role of monitoring and controlling police actions, a natural bond would develop between civil society and the Judiciary. Over the years, however, this bond, which was originally very strong as the courts enforced criminal law provisions fearlessly, has grown weaker with a decline of criminal law jurisprudence and the undermining of the pristine culture of criminal law work.

|388 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS

Raising the Bar It is in this context that the allegation often made − that the standards of the Bar are declining − has to be viewed. It is possible that persons have entered the profession who do not have the privileges of the earlier generations. This is natural because they have not had access to elitist education and resources that most of the earlier generation took for granted. Many of the earlier generations of lawyers were ardent supporters of the rich and politically infl uential and had little time for the working people or for human rights. While seemingly erudite, their value system, and their understanding of law, was slanted towards maintaining the status quo. Many, from this section, for example, ardently oppose the reservation policy today. On the other hand, are the new entrants at the Bar coming not from the elite national law schools but from local institutions. They see and resent the injustices that prevail both in society and the legal system. The present approach is to let things continue as they are. But there is a real danger here. The situation will deteriorate if the Bench and the Bar do not intervene to raise the level through continuing education and training as well as by creating fi nancial opportunities for poor lawyers to survive. Moreover, the deterioration in the Bar is also mirrored by an equal deterioration at the Bench and an even more rapidly declining moral and ethical situation in politics and public life. Those well-heeled lawyers, who criticise advocates for agitations, could do well to look at the culture of corruption, manipulation and exclusion of the poor that surrounds the legal profession. All in all, we are in one grand mess, partly of our own making, where we all look out for ourselves with hardly a care for the institution. This is not surprising since the period of nation building was replaced, during the period of globalisation, by the pursuit of individual wealth and power. We cannot but look at the whole picture. But we must simultaneously try and sort out the problems that plague the legal system to the extent to which we can, even though it is not in our hands to change the political system as a whole. We must do what we can and we must start now. In the context of the simmering discontent, among the rank and fi le of the lawyers in Tamil Nadu, it is important to bring about a transformation of the sorts by providing space to this generation’s aspirations by making the legal system more democratic, accessible and transparent. There are no easy solutions. A possible step could be using the full potential of the legal aid system to integrate lawyers practicing in the magistrate’s courts with the provision of legal aid. This would, in the fi rst instance, provide an important source of support for fi rst generation lawyers. It would give them status as they would be part of the dispensation of justice. More importantly, the Legal Aid System could be the vehicle through which continuing education and the upgradation of skills could take place. The intention ought to be to look at fi rst generation lawyers potentially as a body of persons who, if given the chance, could use their skills, learning and their experiences of every day life, for the public good. Legal aid For this, the Legal Aid Services Authority at the Centre and at the states will need to be radically reformed. For too long it has operated in a formal and detached way. It is an institution with a

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |389 CHAPTER SEVENTEEN huge potential and a clear constitutional mandate but run without passion and creativity. In a country like India, with the problems that we face, a business as usual will not do. It ought to be headed, not by a Justice of the Supreme Court, who is in any case overloaded already, but by a person, not necessarily a judge, who has a history of commitment to the cause of legal aid. The institution must be adequately funded and insulated from state interference. It must build relationships with social movements and root itself in the people of India. Many of these social movements already provide free legal aid to the Adivasis, Dalits, disabled persons, HIV positive persons, prisoners, slum dwellers, workers, farmers and the victims of environmental degradation. It is the duty of the legal aid system to fi nancially support and integrate with the social movements. But that would require the legal aid boards to jettison the ivory tower approach and turn towards the people of India. Perhaps, an impossible task! Justice Srikrishna’s interim report Having known Justice Srikrishna from my Bombay days, when we used to practice together in the labour and industrial courts, I was truly disappointed when I read the interim report. Perhaps, I expected too much. After all, Justice BN Srikrishna is the writer of the Commission of Enquiry Report on the 1992 Bombay massacre of Muslims where he indicted the BJP-Shiv Sena Govern- ment and Bal Thackray and the police offi cers engaging in the killings. It remains to this day one of the outstanding reports ever done regarding communal massacres. Here, however, he is hurried and he appears to have uncritically internalised the police disinformation that the agitation is purely an act of hooliganism by advocates instigated by LTTE sympathisers. This appears to be a major mistake. The report is really very simple. It ignores the precise nature of the provocation. It uncritically adopts the police version − that hooliganism by advocates − was the cause of the police may- hem. Though it describes the assault in strong language it leaves it hanging in the air and does not draw out the consequences of leaving the involved policemen unpunished. The Bench and the Bar Judges and lawyers are natural allies in upholding the rule of law. Both, however, have suffered reverses and lowering of standards over time. Perhaps both have become, to some extent, unac- countable. Nevertheless, the legal profession remains the most important bastion of democracy. If it goes, democracy goes too. It is, therefore, in the vital interests of the civil society that this legal system, which is one of the most extensive and one of the best systems in the developing world, be not allowed to disintegrate and, on the contrary, be reformed and revitalised. If this is to be done, both the Bench and the Bar, no matter what has happened in the past, must work together as allies. Unfortunately, it appears that the strain of the relationship is telling. It may be true that the boycotts have caused frustration among the judges. Nevertheless, this is the time for patience and understanding. One must not mix up issues. Whatever may be the other issues, the attack by the police was unwarranted and brutal. There cannot be two views on that. The attack on the judges was perhaps the fi rst in Independent India. The policemen must be identifi ed and sacked. Only the strongest possible action, by the Judiciary, will assuage the feeling of hurt and humiliation that the lawyers, |390 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS as a community, feel today. If the actions of the Judiciary are not fi rm and comprehensive the lawyers will feel let down and betrayed. Healing will not happen. This is a situation where the Judiciary must come out strongly and openly on the side of the lawyers against the police. Speaking generally, and without reference to the present instance, this is also a situation from which a new beginning must be made where judges will refuse to accept or entertain any ex-parte intelligence communications from the police and rather obtain their information through interaction with the Bar and prominent members of civil society organisations. Intelligence reports, selectively slanted, may play a disproportionately large and negative role in arriving at the truth in any heavily contested matter having social consequences.

–Combat Law January-April 2009

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |391 POLICING THE POLICE

ot a day passes without a report in the press regarding abuse of power by the police. Tor- ture is widespread. Corruption is routine. Anti-women, anti-Dalit, anti-Muslim and anti- Npoor attitudes dominate. All this we know. The Nithari killings only brought into focus once again the need for radical police reform. There is an attempt to do police reform in this country but it is led by the police and this alone should make the public wary. Besides the National Police Commission reports, recommendations have also been made by the NHRC, the Law Commission, the Ribeiro Committee, the Padmana- bhaiah Committee and the Malimath Committee. The last three committees were dominated by the home ministry offi cials. The debate has been slanted in favour of the police with reform having the limited scope of removing political control over the force. The Supreme Court, relying exclusively on these reports, has in its order, dated September 22, 2006, wrongly said that “many of the defi ciencies in the functioning of the police had arisen largely due to an overdose of political interference” and concluded that it was important “to insulate the police from political interference.” In respect of police misconduct, the Supreme Court held that there ought to be a public complaints authority, selected on the basis of recommendations made by the State Human Rights Commission, the Lok Ayuktas and the State Public Service Commissions. Insulating the police force from political control is one thing, establishing independent civilian control is quite another. In a country where the poor face torture by the police on a day-to-day basis, it is imperative that the civilian control be clear, independent and a threat to police misconduct everywhere. To place faith in the State Human Rights Commissions, which are toothless organisations often subservient to the government and which have been recently criticised by the Chief Justice himself, is to miss the point completely. The police force in India continues to this day to be modeled along the lines of the British Para- military Forces that policed the colonies by terror. After the break-up of the empire, the British Police was reformed but the police forces in the colonies raised corruption and torture to an art form. India probably has one of the most debauched forces in the world. For such a criminal force to be freed from political control, without fi rst setting up and testing civilian control structures and procedures, is to take the citizen from the proverbial frying pan into the fi re. Freed from political control and supervised only by formal ineffective structures, this criminal force will come to rule society. De-facto power will, with the Supreme Court order, become de-jure police power. In the UK, pursuant to the Police Reform Act, 2002, an Independent Police Complaints Com- mission has been formed. With its own team − of mainly civilian investigators to investigate

|392 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS cases against the police − these civilian investigators have all the powers of the police during investigation and have access to documents and a right of entry into police premises. Independ- ent non-police persons preside over hearing panels looking into serious cases. The commission can also present cases on behalf of complainants at police disciplinary hearings. Northren Island has a police ombudsman. In Australia, there is a New South Wales ombudsman for less serious complaints and the police integrity commissioner for serious crimes. The latter was established following a Royal Commis- sion report which concluded that the level of corruption in the police had grown enormously and the existing complaint structures were unable to address the issue. External oversight, with fully independent investigation, was sorely needed. In Quebec, the police ethics commissioner is a civilian agency which supervises the conduct of police offi cers and receives complaints from the public. The police ethics committee is a special- ised administrative tribunal that protects citizens in their relations with the police. In British Columbia, the offi ce of the police complaints commissioner is an independent agency handling complaints. The commission for public complaints against the royal canadian mounted police provides a civilian review of the mounted police and has been established by Parliament as an independent body. South Africa, after its transition to democracy in 1990, began the reform of its racist and violent police force. The independent Complaints Directorate, of all the institutions involved in holding the police accountable, is the most signifi cant though questions about its independence remain. In New Zealand, there are strident calls for an independent police complaints authority to be merged with an independent police inspectorate. The Supreme Court, therefore, ought to broaden its horizon from its present reliance on police reports and thereby establish effective civilian control over the police with an independent machinery for investigation into police misconduct.

–DNA newspaper May 14, 2007

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |393 ENCOUNTERS AND POLICE MISINFORMATION

t must be said right away that if a terrorist seeks to kill members of the public and such a terrorist is confronted by the police who kill him in self defence, such a killing is justifi ed in Ilaw and human rights activists will congratulate such a policeman who puts his life in danger so that others may live without fear. But if a person is in police custody, be he a terrorist or be he an innocent – for that is only for the court and not the police to decide – and the police kills such a person in cold blood, such a killing is abhorrent, irrespective of the crimes alleged against the accused and human rights activists have always condemned such extra-judicial killings. Where there is a dispute − as to whether an encounter death has taken place or whether the accused was killed in cold blood − human rights activists have taken the stand that an Enquiry must take place by an agency independent of the police party involved in the incident. In most cases however, police misinformation − about encounter deaths − is blindly accepted by the public who are only too quick to believe that they have been saved from a terrorist attack. It is about time that we become aware of and confront the ways in which the police in India systematically mislead the public by ingenious manipulation of the media and by breeding on our fears and prejudices. Some of the unquestioned “truths” on which police propaganda is based are: Workers have a mob mentality, Pakistan is our sworn enemy, minorities are unpatriotic, criminal elements must be crushed with brute force instead of being taken to court, society is generally under attack. It seems so natural then that, in order to protect ourselves, repressive legislation and a police, overwhelmingly armed and empowered, is needed. Courts and the justice system become meaningless; in fact they are seen to be soft on criminals. This is the mindset so many people have. But there is another side to the story –a terrifying side – where the police are seen as engaging in terrorist activity, and where the police panacea for the ills of society would surely take us deeper into crime, brutality, corruption and the end of the rule of law. Over decades the police force has become the largest body of the organised crime engaging in smuggling, extortion, drug peddling, prostitution and traffi cking, gang-wars, torture, abduction, cold blooded murder and the like. It is not that the police have links with the underworld – they are the underworld. Policing is seen not as the elimination of crime but as the organising of crime in well-defi ned channels and specifi ed areas. Police are the unionists of crime, organising and ensuring that criminals do not overstep their boundaries and hurt middle class sensibilities.

|394 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS

The middle class is crucial because it does not mind criminality as long as it does not infringe upon their freedom. Thus, the police have become the security guards of the rich, condescending towards the middle class, while they terrorise the poor. Such a police force needs “terrorism” to maintain its pre-eminent role in society. Terrorism justifi es police expansion, modern weaponry, special perks in high security areas like the Northeast and secret funds that hardly need any accounting. Terrorism also justifi es repressive legislation like the Armed Forces Special Powers Act and Pre- vention of Terrorism Act. Ironically, such Statutes inevitably rebound on the very middle class that so rabidly support its introduction in the fi rst place. Interception of communications, invasion of privacy, confessions extracted by torture, preventive detention, denial of legal aid and a fair trial and criminal proceedings lasting for years with undertrials languishing in jail, all undermine democracy as a whole. Strangely, repressive legislation hardly impacts on the real terrorists who are never brought to court and are straightaway executed by the police. At best, it is only those on the periphery in respect of whom there is only suspicion for whom the justice system operates. And it is for this farce that society authorises the most awesome anti-people legislation. Human rights activists have never protested in respect of armed combatants who confront the State and are killed in this confrontation. In the State versus armed struggle battle, killings on both sides are considered fair, because, in this unhappy world of violence, might is right. The human rights protest is only in respect of the killing of unarmed combatants and persons in custody. If there was no ISI, the home ministry would have invented its own brand of terrorist as they did in the Northeast, unleashing para-military forces with unimaginable savagery on the local population. It spurred the growth of militant organisations, the rallying point being the atrocity that every family had faced. But it gave the armed forces political power. The Assam Rifl es, for example, ran the government in Imphal, irrespective of the elections. Democratic institutions became meaningless. Police misinformation takes many sub-forms. Many crimes take place with the knowledge and the connivance of the police. Because they are part of the underworld, police intelligence is excellent. Once a crime takes place, it is important that it is seen to be solved. So the accused are paraded masked. But the persons, paraded handcuffed, may have nothing to do with the crime. The weapons recovered may probably come from the unoffi cial armoury of the local police station. Unoffi cial because they are guns seized but not recorded. Narcotics, burnt in public in the presence of the media, may be nothing other than saw dust and the grenades displayed may be bogus. Crime beat reporters lap this up, sometimes knowing the information to be false because good relations with the police ensure repeated scoops. A scrutiny of the crime reporter – police nexus is sorely needed. Encounter deaths are often executions in police custody, sometimes of innocent persons. Fake names may be attached to bodies together with a dreaded bio-data. The truth will go down with the corpse.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |395 CHAPTER SEVENTEEN

During trials, innocent persons may be persuaded to confess and suffer sentences or a person may impersonate the accused and be convicted while the criminal roams free. A convicted criminal may place a dummy in jail and wander free. But for the police, their job is done. The terrorist has been killed, the crime has been solved and the accused has been punished. Society needs the police. Criminals are sprouting everywhere. In such a set-up, the honest and courageous policeman can ﬁ nd no place for himself. Though he is willing to put his life at risk, he cannot be upright. If terrorism is a threat, is not police terror an equal threat?

|396 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation BOOK REVIEW A REMARKABLE READING

t is not often that one fi nds a senior police offi cer (albeit retired) writing about the Army, police and paramilitary forces while, at the same time, calling a spade a spade. For this reason, KS ISubramanian’s book, “Political Violence and the Police” makes remarkable reading. In 250 pages, he covers a wide spectrum on political violence. It is not possible here to refer to all the aspects covered in the book. Therefore, better that I focus on a few of the issues that he has covered so well and which are also dear to my heart. Perhaps without taking too many liberties with the writings of the author, the picture painted is one of a seemingly democratic State which is highly militarised and not averse to putting down struggles for human rights with “exceptional brutality.” The growth of the armed police, after Independence, took precedence over civilian police for beat patrolling and investigation of cases. This police force was not inclined “to safeguard[ing] democracy and freedom.” At three million strong, this police force is possibly the largest in the world. A considerable amount of space is devoted, and correctly so, to the central police forces now standing at one million personnel and whose budget is one-third that of the ministry of home affairs, which is Rs. 210 billion. This is an astonishing fi gure for a country where half the population is malnourished and the central government, and all the state governments, were loathe to increase the budget − from rupee one per day to rupee two − for the Mid-day Meal for children. The author also covers, at considerable length, the functioning of the Intelligence Bureau (IB). Once used by the British, against the national movement, it still functions in the same way oblivious of the requirements of a democratic State. BN Mallik and MK Dhar, former directors of the IB, wrote extensively on how the IB continues to act on behalf of the party in power, doing all kinds of dirty tricks, including bugging of prominent persons including, once at least, the President of India. Its faulty understanding led to the intrusion of the Indian Army into Nagaland. The “seeds of hatred sown during that period have borne the fruits of bitterness” the author writes. Ironically, while the British used one battalion to maintain law and order in Nagaland, free India has 30 battalions stationed in the state. Despite the recommendations of the Shah Commission, that the Bureau ought not to be allowed to be used as an agency of the politicians; and, despite LP Singh’s lament that the “catch all defi nition of ‘national security’ was used as a cloak to hide a multitude of abuses,” the Intel- ligence Bureau continues to remain a servant of the party in power. The author has devoted considerable attention to the Naxalite movement. He is right when he

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |397 CHAPTER SEVENTEEN points out to the social causes of the unrest. He is also right when he criticises the reaction of successive home ministers in setting in motion foolhardy ventures such as those of the Salwa Judum in Chhattisgarh. Two thousand fi ve hundred crores rupees have been allocated by the central government for 55 Naxal districts in the country. If this money was used for providing free food, education and healthcare to the poor in those districts, there would hardly be any cause for discontent which, as the author points out, is the root-cause of militancy. Sadly, instead of using available resources prudently and in the public interest, the expansion of the police force, the purchase of weaponry and related expenses have become the norm. This caused the public accounts commission to express its concern over the large-scale and continued increase in these “unproductive” expenses. I cannot help but feel that the section on communalism has been inspired by the author’s personal experiences when he participated in the Concerned Citizen’s Tribunal on Gujarat which documented the massacre of the Muslims by a fanatical majoritarian group. His vivid description of what he experienced and his conclusion that the police force was communal and participated in this communal crime leads him to the conclusion that when the police force stands fi rm no riot can develop. The author has a substantial section on atrocities against Dalits and Adivasis. Referring to the NHRC reports, and also the reports of the Commissioner for Scheduled Caste and Scheduled Tribes and other documents, he makes the point that the laws, enacted for these communities, are hardly enforced. As a result, the atrocities increased with not a sign on the horizon that anything is intended to be done by the State. I may add that recent studies done by NGOs in Andhra Pradesh and Tamil Nadu have found just one percent conviction rate in the atrocity cases. Finally, the way ahead. The author has some ideas but I think this will need another book. He correctly suggests that the paramilitary colonial repressive structure of the police should be removed and laments that the eight volumes of the National Police Commission have not looked at this at all. While condemning the new Police Act as “too little, too late” it will be necessary for the author, were he to take up the arduous challenge of coming out with a sequel to this book, to develop specifi c and detailed suggestions for reform. He would need to look at the Civilian Oversight Committee in the UK, for example, and the community policing techniques being developed in other countries. He would need to squarely address the central issue as to how genuine civilian control over the police force could possibly eradicate violence by the police and corruption in the police force and make the police the servants of the people. Similarly, at the end of the section on Naxalism, tentative suggestions are made on how Naxalism should be “fought” which are, I think, out of sync with the logic and tenor of his writings. The Naxalites ask for land-reforms and for an equitable distribution of state resources. They seek dignity for labour. Is this to be fought? The way out perhaps is to view this social unrest as a series of political movements and deal with them as such. Contemporary history has at least one striking example, in the case of the Irish Republican Army, of how a democratic State can successfully negotiate with a so-called terrorist organisation and bring them into the democratic processes. The developments in Nepal

|398 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation POLICE REFORMS show likewise that it is possible to bring the Maoists within the mainstream for the strengthening of the democratic processes. But for such an attitude to develop, particularly in the home ministry, will require a radical reform of MHA. All home ministers, in the recent past (and the present home minister is no exception), have been masters in the art of posturing requiring militants to lay down their arms as a pre-condition for negotiations. No serious political discussion can even begin with this childish attitude. All in all, the fault lies in a State which also uses terrorist tactics. Unfortunately, as the author points out, there is no discourse on State violence and the focus is entirely on violence by the oppressed. And there is no sign of reform anywhere.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |399

NORTHEAST EIGHTEEN CHAPTER

1. Critique on Justice Reddy Report: The Fake Repeal of AFSPA 2. The Sorrow of Manipur 3. The Killing of Manorama: The State and Judiciary Have Failed to Curb Torture Photo: Harsh Dobhal

In the guise of ﬁ ghting terrorism, security forces, never intended to be used against citizens of India, were unleashed against the people, creating terror and setting a terrible precedent of allowing, on an almost permanent basis, the Army to replace democratic institutions.

|402 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRITIQUE OF JUSTICE REDDY REPORT THE FAKE REPEAL OF AFSPA

he June 2005 report of the committee appointed by the central government to review the Armed Forces (Special Powers) Act, 1958 makes interesting reading. The committee con- Tsisted of Justice BP Jeevan Reddy, former Judge of the Supreme Court; Dr SB Nakade; Mr P Shrivastav, former special secretary, MHA; Lt. General (Retd.) VSR Raghavan; and Mr Sanjoy Hazarika. The core of the report is Part IV recommendations and Part V which are the suggested amendments to the Unlawful Activities (Prevention) Act, 1967. The recommendations begin with a sort of statement of principles. Even if a law is not made the central government can nevertheless order the Army into any particular state under Article 355 of the Constitution to protect the State against “internal disturbances.” It can do so even without there being a request of the state government. When the Army is deployed in any state the Fundamental Rights of the citizens are required to be protected and they remain “sacrosanct and effective.” The deployment of the armed forces should be undertaken with “great care and circumspection” and ought to be “an exception and not the rule.” The armed forces are not to be deployed too frequently and for “long periods of time.” Keeping this in view the AFSPA is “too sketchy, too bald, and quite inadequate.” “The Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.” All this is unexceptional. The problem starts when the committee departs from these principles when it makes its recommendations and suggests amendments. The ﬁ rst conclusion of the committee is then set out thus: “It is highly desirable and advisable to repeal this Act altogether, without, of course, losing sight of the overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go). For that purpose, an appropriate legal mechanism has to be devised.” To justify the transfer of the provisions of AFSPA to another Statute, in this case the Unlawful Activities (Prevention) Act, 1967 (UAP Act), the committee reasons, in an interesting fashion, as follows: “A major consequence of the proposed course would be to erase the feeling of discrimination and alienation among the people of the Northeastern states that they have been subjected to, what they call, “draconian” enactment made especially for them. The UAP Act applies to entire India including to the Northeastern states. The complaint of discrimination would then no longer be valid.” The committee then notices that the UAP Act “does not provide for an internal mechanism ensur-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |403 CHAPTER EIGHTEEN ing accountability of such forces with a view to guard against abuses and excesses by delinquent members of such forces... over the years many people from the region have been complaining that among the most diffi cult issues is the problem faced by those who seek information about family members and friends who have been picked up and detained by armed forces or security forces. There have been a large number of cases where those taken away without warrants have ‘disappeared,’ or ended up dead or badly injured. Suspicion and bitterness have grown as a result. There is need for a mechanism which is transparent, quick and involves authorities from concerned agencies as well as civil society groups to provide information on the whereabouts of missing persons within 24 hours.” The committee then sets out the suggested constitution of these “grievance cells.” The committee recommended that it should be composed of three persons: “namely, a senior member of the local administration as its chair, a captain of the armed/security forces and a senior member of the local police.” The role of the grievance cells is to “receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt enquiries and furnish information to the complainant.” Thus, it can be seen that grievance cells are dominated by the security forces and the police and have no power to punish at all. All that they can do is enquire into an allegation and provide information. That it is important to have a civilian oversight commission, along the lines prevalent in the UK, is obvious from the fact that the principal grievance, against the security forces, is that there is no accountability at all and that they torture, rape and kill at will. No enquiry has ever come to light where the security forces have been severely punished. It is surprising, therefore, that the Justice Jeevan Reddy Committee should not take this aspect of the matter seriously at all. An independent enquiry is very important for one more reason. In Appendix A Entry 24, the committee recommends that “if on enquiry, it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for institution of prosecution and/or a suit or other proceeding should be granted under S.6 of the Central Act.” Obviously, the word “enquiry” refers to the enquiry conducted by the grievance cell. If this Cell is to comprise of the very forces committing the offence, one can hardly expect anything to come out of these enquiries. The promise of compensation and prosecution is, therefore, illusory. The insertion of a provision, relating to grievance cells, could possibly have an adverse impact on habeas corpus and other petitions fi led in the High Courts or the Supreme Court. These courts have been regularly ordering judicial enquiries in respect of allegations of torture, executions and disappearances. Should such a clause be inserted it could well be contended that the enquiry ought to be conducted, not by an independent judge, but by the grievance cells set up under Statute. After setting out the principles − that the use of the armed forces ought to always be for a limited period − the committee suggests an open-ended time schedule in the following manner: “while deploying the forces under sub-section (3) the central government shall, by a notifi cation published in the gazette, specifying the state or the part of the state in which the forces would operate and the period (not exceeding six months) for which the forces shall operate. At the end

|404 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NORTHEAST of the period so specifi ed, the central government shall review the situation in consultation with the state government and check whether the deployment of forces should continue and if it is to continue for which period. This review shall take place as and when it is found necessary to continue the deployment of the forces at the expiry of the period earlier specifi ed.” It can be seen from this that there is no limitation at all on the deployment of the armed forces in any state nor are there any guidelines laid down apart from the general statement of principles for the deployment of the Armed Forces. Then comes the most dangerous part where a provision is sought to be inserted which is even more pernicious than the provisions of AFSPA read together with the Supreme Court judgement in the Naga People’s Movement for Human Rights case. Simply put, the Supreme Court interpreted the provisions of AFSPA to mean that the security forces cannot substitute the civil administration and the police and are always to act “in aid of the civil power.” What this meant was clarifi ed by the Supreme Court to include taking the police force into confi dence, normally not acting without the consent of the police, at all times working in tandem, handing over suspected terrorists to the police forthwith and without interrogation. The suggested amendments are clearly at the behest of the security forces who saw for themselves a larger role than merely acting “in aid of the civil power.” The committee has qualifi ed the clause “in aid of the civil power” by saying that the forces will do so “to the extent feasible and practicable… However, the manner in which such forces shall conduct their operations shall be within the discretion and judgement of such forces.” The committee further concludes that the deployment of security forces in any states can happen “notwithstanding that no request for such force is received from the state government concerned.” Then comes the clincher. The suggested provision − for opening fi re − is so overbroad that there is no reference to opening fi re in self defence or opening fi re in the context of the likely commission of a terrorist offence. Mere reasonable suspicion − that a person is in possession of arms − is suffi cient to open fi re without anything more. There is no indication at all that the principle of the minimum use of force is applicable at all. A non-commissioned offi cer can order security forces to open fi re. There are no guidelines for opening fi re. There are no guidelines for any enquiry to be conducted after the forces open fi re and injure persons. This draconian provision, suggested by the Justice Jeevan Reddy Committee, is as follows: “In the course of undertaking operations mentioned in (a) above, any offi cer not below the rank of a non-commissioned offi cer, may, if it is necessary, in his judgement, for an effective conduct of operations; use force or fi re upon, after giving due warning, an individual or a group of individuals unlawfully carrying or in possession of or is reasonably suspected of being in unlawful possession of any of the Articles mentioned in Section 15 of this Act.” It can be seen from the above that the only guideline for opening fi re is that the non-commissioned offi cer must, in his judgement, feel it is necessary to do so! The committee suggests that the armed forces, after arresting a person, should forthwith hand over such person to the police. The observation of the committee is as follows: “If the forces deployed under sub-section (2) or sub-section (3) of Section 40A arrest any person, under the preceding section, they shall forthwith hand over such person to the offi cer in charge of the near-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |405 CHAPTER EIGHTEEN est police station.” The word “arrest” is a dangerous loophole. The police regularly make a distinction between “detention” and “arrest” and the period between the two sometimes runs into months. Under AFSPA, the Security Forces were not permitted to arrest any person. They were merely required to take a person into custody and forthwith hand that person over to the police. One of the ‘Dos’ suggested is that “if any person dies during the course of these operations, his dead body should be handed over immediately to the police along with the details leading to such death.” There is no requirement for an independent enquiry to be conducted. There is no punishment for torture, forced disappearances or homicide. Thus the main grievance of the people of Manipur that the armed forces have raped women, tortured and executed persons and caused forced disappearances has been left unattended to by the committee. Finally, Appendix A contains the ‘Dos’ and ‘Don’ts’ suggested by the Supreme Court with some modiﬁ cations.

–The Times of India December, 2006

|406 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE SORROW OF MANIPUR

our years ago in 2002, I visited Manipur together with Justice Hosbet Suresh on a fact- fi nding mission relating to atrocities committed by the Assam Rifl es and the CRPF. As we Fdrove, from the airport to our hotel in Imphal, we saw a bandh being enforced by thousands of women lining the main roads. In a display of strength – so typical of an invading force – jawans were driving down the deserted streets, sirens blasting, brandishing weapons. It was a grim forebearer of the things to come. First we met the 23-year old KP Singh, obviously still in pain, who showed us parts of his intestine protruding from his stomach. The Assam Rifl es put a wooden rod up his anus and it broke inside. We then met with the Meira Paibis, probably the largest women’s organisation in the country. They complained that the security forces were routinely sexually abusing women and little boys. Their memories went back to 1974 to the fi rst reported case of the rape of Miss Rose by the BSF. She committed suicide and no action was taken against the offi cer. In 1996, two Army jawans raped Ahanjaoabi in front of her disabled son. In July 2000, 25-year-old Mecry Kabui was gang- raped by the men of the 112 battalion, CRPF. We met her and she told us her story. Senseless retaliation and killing of innocent bystanders, to avenge attacks on the forces by militants, has gone on in Manipur for decades. In the Heirangoithong Massacre (1984), 13 spec- tators of a volleyball match were arbitrarily gunned down by the CRPF. Fifteen unarmed villagers were similarly dealt with in 1987, in what is known as the Oinam Massacre. The RMC Massacre 1996 saw nine unarmed civilians, including a medical student, killed inside a hospital by the CRPF. In 1999, in the Tunsem Lamkhai incident, 10 unarmed civilians, including state government employees on election duty, were killed by the CRPF. We met the victims of the Tera Bazar Massacre. In August 1993, a militant attacked and killed two CRPF jawans as they were fetching water. On learning of this, the soldiers ran out of their barracks opening fi re on bystanders in a blind rage killing fi ve of them and injuring several others. No enquiry was ever conducted. Adding insult to injury, the government paid a compensation of Rs. 20,000 to the families of the deceased. We met BM Sharma, a shopkeeper paralysed by a bullet in his spine, another victim of random fi ring after the militant had fl ed. He was given Rs. 5,000 ex-gratia and the jawan was never punished. His wife told us, in anguish, that they had paid Rs. 3 lakh for his medical treatment. We also met families of those picked up by the security forces and thereafter treated as “disappeared.” The family of Tayab Ali spoke to us of how he was noticed being picked up by the Assam Rifl es in 1999. He was not seen thereafter. The Assam Rifl es denied taking him into custody.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |407 CHAPTER EIGHTEEN

In 1996, Bijoy Kumar was abducted by the military at night in the presence of his family, never again to be seen. After widespread protests, and a habeas corpus petition, a district judge investigated and made a report. In 1999, the registrar of the High Court reported that this document was missing. At the time of our visit, the NHRC had not found it necessary to hold even a single sitting. Yamen Laba, member of the Manipur State Human Rights Commission, put up heroic resistance nevertheless, looking into instances of murder, torture and disappearances. He pointed out to us that the Chief of the Army Staff had issued ten commandments to his soldiers, the fi rst three being a prohibition on rape, molestation and torture. Justice Suresh, in his report, observed that the commandments were observed in the breach. The AFSPA has its roots in infamy. In 1942, the AICC launched the Quit India Movement. In Singapore, 40,000 British Indian soldiers had joined the INA (Indian National Army) and were marching towards India from the eastern front with Japanese soldiers. Congress was declared an illegal organisation. Prominent Congress leaders were jailed. Mass upheavals took place. Viceroy Lord Linlithgow promulgated the AFSP Ordinance conferring vaguely defi ned special powers on the armed forces to arrest and even kill civilians on mere suspicion. When a Bill was introduced in Parliament, post Independence, to make the provisions even harsher, it was opposed by the MP from Inner Manipur Parliamentary Constituency, who said that the military “have always committed excesses... It is dangerous to invest the military with extraordinary powers of killing and arrest without warrant and housebreaking.” When the Act was impugned before the Supreme Court in Naga People’s Movement for Human Rights vs Union of India, the Apex Court made the mistake of separating the letter of the law from its factual historical context and consoled itself by issuing a series of “Dos and Don’ts” for the military. These were almost immediately put into the dustbin of the history of Northeast. In the guise of fi ghting terrorism, security forces, never intended to be used against citizens of India, were unleashed against the people, creating terror and setting a terrible precedent of allowing, on an almost permanent basis, the Army to replace democratic institutions. Almost immediately, after our departure from Imphal, the 8 Battalion of the Assam Rifl es, in retaliation for a bombing, killed ten innocent civilians at Malom in Manipur. Irom Sharmila Chanu, a student in her early twenties, outraged by this went on a hunger fast and was removed to a hospital and force fed. Reduced to skin and bones, she continues her fast till date, her spirit of resistance inspiring all Manipuris. We, who have gone through the Independence movement, against a militarily superior colonial power, do not seem to have learnt any lessons from the past. There cannot be law and order, among the people, where there is no law and order among the rulers. The time to correct the historical injustice, done to the people of the Northeast by this draconian Act, is now. The Act must be repealed.

– Written in 2006

|408 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE KILLING OF MANORAMA THE STATE AND JUDICIARY HAVE FAILED TO CURB TORTURE

he Gauhati High Court disposed of a writ petition of the Assam Rifl es seeking a restraining order on the publication of the report of the commission of enquiry set up by the state of Ma- Tnipur to enquire into the circumstances surrounding the killing of Manorama. The High Court directed that the report be handed over to the union home ministry. The ball is now squarely in the court of the Prime Minister. The whole of Manipur watches to see what decision he will take. In the early hours of the morning on the July 11, 2004, the 29-year old Manorama was picked up from her house in Imphal and taken away by the Assam Rifl es. Three hours later her body, with eight bullet injuries, was found in a fi eld. The Assam Rifl es say that she wanted to relieve herself and while so doing attempted to escape. She was, therefore, shot and killed. To the public however it appeared incredible that a four feet eleven inch girl, weighting 50 kgs, should escape from eight highly trained jawans in an open fi eld with nobody around. Public unrest engulfed the whole of the state. A man immolated himself. A woman was stripped naked outside the headquarters of the Assam Rifl es inviting rape and executions. In the Enquiry, set up under the provisions of the Commission of Enquiry Act, Manorama’s brother testifi ed that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon, and the chief medical offi cer of the Manipur Health Service and another doctor, deposed that she was killed at close range while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds there were others caused by a blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the fi eld at that time, contradicted the Assam Rifl es version saying that she saw the jawans alight from the vehicle with the lifeless body of Manorama and that they placed her in the fi eld and then she heard the sound of gunshots. Policemen said that they did not fi nd spent cartridges in the area and there was not a drop of blood on the ground. The Army did nothing except to start its own Enquiry which has lingered on till today with no result. It remains oblivious to the mood of the people. As a result, the entire force is tainted. Had General JJ Singh acted promptly and punished the guilty jawans, the Army would not have been in the miserable position that it is today. But years of colonial oppression has made it impossible for the armed forces to discard the rotten apples in their ranks. In the Naga People’s Movement for Human Rights vs Union of India, the Supreme Court clarifi ed

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |409 CHAPTER EIGHTEEN that the role of the Army, as defi ned by the Armed Forces Special Powers Act, requires the Army only to come to the “aid of the civil power” and not “to supplant or act as a substitute for the civil power in the state;” to “invariably consult the state government;” to hand over the arrested persons to the nearest police station “with least possible delay;” to open fi re only if “it is essential for maintenance of public order;” not to interrogate accused persons; and to “get the permission from the magistrate and use as little force and do as little injury to persons” as possible. In Manorama’s case all these rules were fl outed. Ordinary people are not the only victims of this savage power. Max Phazan, a sessions judge, was picked up from his Court by a brigadier of the Assam Rifl es after he had granted bail to a Naga boy and was taken to the barracks and given electric shocks. His complaint, to the High Court, resulted in an Enquiry being conducted which lay in sealed cover for many years. It now seems that the report is missing! Another Naga judge, Justice Shishak later on the Chief Justice of Chhattisgarh, had his house ransacked by jawans allegedly looking for a gun! If the Judiciary cannot protect its own how can it do justice to the people of Manipur? In all the states − affected by militancy from Jammu & Kashmir to the Northeast and from Bihar through Maharashtra to Andhra Pradesh− a clear picture emerges of an Executive that openly supports torture and of a Judiciary incapable of acting decisively. The existence of insurgency is seen as justifying torture. But is torture the result of militancy or the other way around? In Manipur, as indeed in many states of India, young people, who are mere sympathisers and well- wishers, have no choice but to join the ranks of the underground to escape torture. The State, by its crude and vulgar methods, creates terrorists! And in the High Courts, the habeas corpus petitions languish with the Judiciary dealing with them in a cursory and routine fashion. In Jammu & Kashmir today, as in Punjab during the height of militancy, the Judiciary was frozen into inaction by what it perceived as its duty in the face of armed militancy. As a result, it lost the love and the faith of the people. This is a dangerous alienation. It is when, times are the most diffi cult that judges are required to stand fi rm and to take a stand to uphold the Constitution come what may. For when constitutional protection disappears the end of democracy is near. Political will alone is the sole determinant of the direction India takes. Absent a will to proscribe torture, the police and armed forces will grow unchecked into awesome bodies of the organised crime. South Africa is, in this regard, a model to follow. Under the apartheid regime torture was a routine forensic tool. Today, it has been institutionally banished though individual cases may occur. Violence begets violence. We must stop torture now.

|410 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NEPAL NINETEEN CHAPTER

1. Time for the King to Go 2. A Nepali Textbook for India 3. Constituent Assembly or Counter- revolution? 4. Future Tense Courtesy: Internet

After decades of suffering at the hands of the king and his security forces, the people of Nepal in the February Revolution put their stamp on history. Neither the RNA, the armed police, the Americans nor the Chinese could stop the events that unfolded when millions of Nepali people braved bullets to relegate the King of Nepal to the dustbin of history.

|412 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TIME FOR THE KING TO GO

ndia’s policy in Nepal is determined by the desire to neutralise the Maoists. In the process, gruesome acts are condoned causing democracy incalculable harm. This policy will not suc- Iceed because there will be an ever-increasing space for a popular counterforce to a repressive king. As a result, India is reduced to competing, with the US, in arms sales to a king who is against any kind of reform. Nepal, ruled by perhaps the region’s richest men, is one of the world’s poorest countries. Nepal, in the UNDP Human Development Index of 2001, ranks 118 out of 145 countries. Sixty six percent of all females are illiterate. Maternal mortality is one of the highest in the world. Life expectancy today is 32 years! The king controls the State, the Army and most of the economy. Those, who demand a Consti- tutional Monarchy, forget that the king understands that the Army is answerable to him and not to the country. It is this historical absence of democratic space that has seen the Maoists grow from a small group, with few khukris in 1991, to a 78,000-strong Army with an impressive array of automatic weapons and rocket launchers, controlling over half of the country. Its cadre is in the 12-22 age group in a country where 50 percent of the population is below 19 years of age. On February 1, this year (2005), the king seized power and suspended the Constitution. The status of habeas corpus is unclear. A 20-point direction has been issued prohibiting any comment, by the media, regarding the security forces ‘‘that could affect their morale.” The Terrorist and Disruptive Activities Ordinances (TADO) was promulgated, by Royal Order, allowing for a year’s detention without being produced before a magistrate. Recent directives, of the courts to the government to show cause, have been disregarded. The king, though he is now the Chief Executive, is constitutionally exempt from the criminal jurisdiction of the courts. Now even the courts have fallen silent. The NHRC, which had in 2003 reported the extra-judicial execution of 19 persons by the RNA in the Doramba Massacre, has been reduced to a toothless body merely receiving complaints and recording cases. It cannot visit places of detention without prior notice to the security forces. Members of the Bar played an active role in the movement. SN Pyakurel, a former president of the Bar, was arrested along with N. Bhandari, Secretary of the Nepal Bar Association and KC Kalyan, a Human Rights Lawyer from Biratnagar. The press has suffered the same fate. Tara Nath, President of the Nepal Federation of Journalists, has been forced to go into hiding. Gurung Bishnu Nisthuri, the General Secretary of the Federation, was arrested from his house at night. The BBC Nepali news service was forced to suspend broadcast and KC Netra, its correspondent in Nepalganj, was arrested and released. The king’s secretary ominously warned the press that he would be unable to help if the military decided to ‘‘disappear’’ journalists and editors ‘‘for a few hours.” FM stations, across the country, are laying off reporters. A foreign journalist was hit

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |413 CHAPTER NINETEEN on his head by a policeman after showing identifi cation. The Himal Media Group offi ces lie abandoned. Mr Jeet Man Basu, Editor of Sagarmatha, is in hiding. He has been assisting the NHRC, as an eye witness, in the enquiries into the custodial death of Krishna Sen and the torture in the Bhairav Battalions barracks. A 20-point direction has been issued prohibiting any comment by the media regarding the security forces ‘‘that could affect their morale.” The human rights organisations have also come under attack. Krishna Pahadi and Suresh Chan- dra Pokhrel, of the Human Rights and Peace Society (HURPES), have been arrested. Sukhram Maharjan, Member of the Human Rights Organisation of Nepal (HURON), was arrested by plain- clothesmen from his home. His whereabouts are not known. The activists of the Collective Cam- paign for Peace (CoCAP) have been forced underground. Prakash Thapa, a member of Amnesty International, was reportedly arrested and tortured at the Army barracks. The UN Working Group on Disappearances visited Nepal in December 2004 and reported detention of persons without access to judge, lawyer or family and the torture and enforced disappearance of persons suspected of being Maoists. Nepal, according to the UN, had the highest rate of disappearances in the world in 2003 and 2004. The role of the US is most suspect. Michael Malinowsky, the previous US Envoy, regularly visits frontline troops. The US, between October 2001 – September 2004, provided $ 29 million in assault rifl es, grenade launchers, night vision equipments, body armour and communication equipment. US military experts, in early 2003, traveled to Nepal to train the Army in the joint combined exchange training (JCET). The US has not issued a single condemnation of the human rights violations taking place, though Clause 502 b of the Leahy Amendment to the Foreign Ex- change Act, prohibits security assistance by the US to any country engaging in a gross violation of human rights. One reason appears to be the US interest in Nepal’s, second largest in the world after Brazil, hydropower potential. Anxious not be left behind, India provided, over the last three years, about $ 40 million plus arms not counting development aid. General Vij remarked that India was prepared to provide any type of military assistance. Indian bullets for Nepali hearts. There has not been a single comment about human rights violations. India supported the king when resolutions, critical of the Army, were tabled at Geneva in April this year and opposed UN International mediation in Nepal. All this money goes into the pocket of the king. Parliament has not met. The budget is not approved. It is passed through a palace ordinance. The military budget dominates all. The king is not accountable. In the name of a “war against terror,” the funds are used for a war against the people of Nepal. In the meanwhile, the situation is darkening ominously. In January, this year, Nepal and India signed a secret extradition Treaty making possible the sending back of persons possibly to their death. This is contrary to the principle of non-refoulement in international human rights law. On 6th of February, Nepali planes are reported to have dropped bombs in Dailekh district. The time has come for the Indian people to know what their embassy, in Kathmandu, is doing in their name.

–Combat Law April-May 2005

|414 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation A NEPALI TEXTBOOK FOR INDIA

fter decades of suffering at the hands of the king and his security forces, the people of Nepal in the February Revolution put their stamp on history. Neither the Royal Nepal Army, Athe armed police, the Americans nor the Chinese could stop the events that unfolded when millions of Nepali people braved bullets to relegate the King of Nepal to the dustbin of history. Even more astonishing was the stand taken by the Maoists who put forward a series of unprecedented proposals for the restoration of true democracy, the disarming of the militia and the making of a new Constitution. But, as in all revolutions, the forces of reaction are quick to regroup. In the case of Nepal, many of these are to be found in the Seven Party Alliance. Some of them would prefer the King and the old system of class and caste domination to continue albeit in some diluted form. But they are terribly afraid of true democracy and its consequences for the status-quo. It is these groups that today band together under one retort : “the Maoists must fi rst disarm before any negotiation can take place.” In the history of armed rebellions, the disarming of the militia always comes towards the end of the negotiating process and never at the beginning. The talks between the British Government and the IRA, once sworn enemies, is a case in point. Secondly, such negotiations always take place with the main representatives of the armed struggle line because it is only the most respected militant who is capable of getting the rank and fi le to compromise. For the compromise to take place, however, the avenues of power within the democratic system must yield, in part, to the militants who will fi ll these positions of power thus substituting democratic political power for the power of the gun. In the case of Nepal, this means an immediate general election where the Maoists will take democratic power in certain constituencies, a new Constitution where the Dalits and minorities, a powerful base of the Maoist militia, will be adequately represented and the absorption of a part of the underground in the Nepal Army together with the purging of the royalist elements. Only time will tell whether this historic chance offered by the Maoists will be accepted by the Seven Party Alliance and the three powerful nations standing behind them – India, China and the United States. India’s Foreign Secretary Shyam Saran, after a long period of indecision and bad decisions correctly said that India would do what was good for the Nepali people. Marxist leader Sitaram Yechuri’s visit to Kathmandu appears to have had a positive effect. China’s stand is unclear. They have been for decades ardent supporters of the King and a substantial military sup- plier. And as for the United States, nothing can be expected from them accept short-sightedness and a blind hostility to the Maoists.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |415 CHAPTER NINETEEN

There are important lessons for India. Radical social and economic reform is needed to draw militants into the mainstream in India. But that will require that India take a close look at globalisation and its terrible injustices; farmers’ suicides and starvation deaths; gender inequities and mass poverty; and the multiple oppressions of a feudal, caste-divided society. Is the Indian government willing to tackle militancy seriously or will we eternally have a knee-jerk reaction of the armed reinforcements? Independence Day, which ought to be celebrated with great gaiety and fanfare, has become a day for Indians to stay at home fi lled with insecurity and fear. And the sad thing is, there are many who profi t from the spread of fear and hate. Have we become a nation under an artifi cially created siege?

–September-October 2006

|416 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CONSTITUENT ASSEMBLY OR COUNTER-REVOLUTION?

fter decades of extreme repression, the Nepali people rose in revolt in what is now also known as the “February Revolution,” though the uprising mostly took place in turbulent AApril. The king, seeing the resoluteness of millions of people, stepped back after he was told, by his Army generals, that they would not open fi re on unarmed civilians. The Maoist armed forces (the People’s Liberation Army or the PLA), in a strategic move, stayed on the fringes of the movement and let the people lead the struggle. It was perhaps a wise move, for had they led the struggle, a bloodbath may have followed. The king’s retreat saw the demonstrations evaporate overnight thus losing momentum at a time when the king’s departure from Nepal was imminent. An explanation can perhaps be found in the tiredness and suffering of the Nepali people who wanted peace above anything else. When we visited Nepal, in May 2006, we found a new spirit of optimism. Political discussions were taking place everywhere. In old Kathmandu’s Darbar Square, you could see hundreds of candles burning and young people everywhere. With the average age of the population at 20, the future of the Republic of Nepal lies with the young people. The conversations focused on the leadership role of the Maoists during the non-violent April uprising. There is overwhelming admiration for the sacrifi ces made by these young revolutionaries and their willingness to die for a cause. There is no doubt, in anyone’s mind, that, if it were not for the Maoist armed cadre, change, in Nepal, would never have come. This is not to say that the movement was only a Maoist movement. It wasn’t. It was a movement of the masses, sometimes guided, sometimes led and sometimes supported by the Maoist underground. The people of Nepal are the heroes of the February Revolution. This revolution succeeded despite opposition from not only the king of Nepal and his Army but also three hegemonic nations – India, China and the United States — whose embassies in Kath- mandu are overactive but entirely in the wrong direction. The American forces openly interfere in Nepali affairs and it is said that, apart from providing cash and weaponry, they also train the Nepali Army. China openly supports the king. Human rights have ceased to be on its agenda for many years now. And Indian foreign policy may well be characterised as disrespect for democracy, shifting support for the Army, disregard for the people of Nepal and a fear of the Maoists. Indian foreign policy has been uncertain and fl oundering. It is truly a wonder that the Nepali people, after facing decades of torture, executions and disappearances including bombings from the air by the Royal Nepali Army (RNA), should break through

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |417 CHAPTER NINETEEN and assert the will of the people. So many families have a tale of sorrow having lost a brother, a sister, a mother or a father to the bullets of the RNA. Of inhuman bondage There is a close bonding between India and Nepal but there is also great stress. The porous border has made our two countries inseparable. But we have also caused considerable harm to the people of Nepal. One has only to visit the Tanakpur Barrage, constructed unilaterally by India in 1989, that gave rise to a huge controversy because the waters of Nepal were directed to India. GP Koirala thereafter signed a Treaty legitimising the barrage and, in 1996, a seven-party alliance signed the Mahakali Treaty betraying the people of Nepal and giving away the Mahakali’s waters to India. The Mahakali barrage was built, the ﬂ ags of Nepal were removed, almost all the water was sent to UP and hardly any went to Nepal. It is acts like these that create a love-hate relationship between the Nepali and Indian people; love for the Indian people and bitterness against the Indian government. Indian democracy, like the Indian State, has lost its vision, sense of balance and sense of direction. Having lived through one of the most vibrant national movements in world history, it is a shame that we cannot even recognise, let alone identify with, similar movements when they take place nearby. Instead, our reaction is the same as that of our colonial rulers. Suspicion of the poor, manipulation of the weak and downright bullying are the only diplomatic tools we seem to understand and use. This lack of ethical moorings was visible in the panic reaction to the February Revolution. Man- mohan Singh decided to send Karan Singh to Nepal. Apparently, Karan Singh, proud of his royal lineage, said to reporters, as he left India, that he was going to visit his in-laws. That too in the middle of a revolution! Jaswant Singh, who was also keen to visit the king, has close links with the royal family. Thus, at a critical moment in history, the Indian State, and the leader of the opposition in the Rajya Sabha, sided with the monarchy. The consequent change of heart, which quickly followed, was perhaps because of the massive show of strength by the people of Nepal and the certainty of victory which would have left India, like America and China, isolated. Foreign Secretary Shyam Saran then rightly said that India would abide by the wishes of the Nepali people. In any review, done of the regressive role played by the bureaucrats of the Indian embassy in Kathmandu, the initial decision − to supply weaponry to the king − must be centrestage. The decision was later changed. Indian bullets for Nepali hearts! Any introspection must also look at why the Maoist movement was destined to succeed. The average age of the Maoists underground, which consists of 20,000 regular Army soldiers and 80,000 village militia, is about 20 years. Almost 30 percent of this Army is Dalit and an equal percentage consists of women. These are the two most downtrodden sections of the society for whom GP Koirala, and politicians of his ilk, has neither a political programme nor any inclination to serve. Betrayal and hope Land reforms are critical. families, 10 lakh, out of 42 lakh, agricultural families are landless. |418 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NEPAL

Only eight percent of women have land in their names and only four percent have both land and houses in their names. There are 60,000 ”haliya” families who are bonded ”ploughers.” There are lakhs of ”kamaiyas,” or bonded labourers, trapped in bondage because of ”saunki” or debt. The tenants have fallen into dire poverty. A tenant, prior to 1996, could acquire ownership of 25 percent of the land. The fourth amendment, in the Land Reforms Act, 1962, increased the right of the tiller to 50 percent of the land. The ﬁ fth amendment, of 2000, restricted the right only to those tenants who were registered in the government records. The sixth amendment, of 2004, extended the last date of applications up to April 13, 2005. But there was confusion everywhere and most tenants missed the deadline. The Civil Code, 11th Amendment in 2002, gave women equal ownership of ancestral property; but on marriage, property would revert to the parents. Thus, the laws were very complicated and the people unfriendly. To make matters worse, a ”citizen card” was needed for everything. Proof of land ownership was a perquisite. It cost Rs. 1,200 (in Nepali currency) to get a card. This was beyond the reach of most people. The land issue is central to the February Revolution. The Maoists did, using force, bring about political and social empowerment and mass mobilisation. The movement grew because, as areas were liberated, land was handed back to the landless and the Dalits in many places. There is a lesson to be learnt in this for India. Earlier this year, when I went along with veteran civil liberties lawyer KG Kannabiran to meet Union Home Minister Shivraj Patil, I saw how closed the Indian State was to understanding Naxalism and violence. Kannabiran pleaded with the minister but he seemed preoccupied. In the end, he casually suggested that Kannabiran ought to press the Naxalists to disarm, promising to act thereafter. Such an approach is no approach at all. Disarming of the militia comes at the end of a protracted negotiation process and never in the beginning. In the history of democratic States, dealing with the armed struggle movements such as the Irish Republican Army (IRA), this has never happened. In the case of the Andhra Pradesh, the principal issue, apart from cold-blooded murders in fake encounters by the Andhra Police, is that of land. Land ceiling laws exist. But they are violated throughout the country and landlords have successfully used the legal system to obtain stay orders, which continue for decades thus effectively sabotaging the land reforms process. Today, the Naxalites do, by use of force, what the State Legislature and Judiciary ought to be doing, by taking recourse to the Constitution of India. In the context of entrenched upper caste feudalism, capitalism and globalisation, the poor just do not count and reform laws, intended to beneﬁ t the poor, are not taken seriously. Naxalism then is the natural outcome of the globalisation process which isolates, impoverishes and marginalises the majority of the working people and pushes them inexorably towards rebellion. The very nature of capitalism, and the imperatives of globalisation, create militants, such as the Naxalites, who see force as the only way to defend the Right to Life. Returning to the situation in Nepal, the retreat of the king appeared to be tactical. The head of the armed police and the intelligence police chief were suspended but the Army top brass was not touched. The upper layers of the RNA owe their allegiance to the king and not to the Constitution.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |419 CHAPTER NINETEEN

The palace brigades even more so. It would be foolish for anyone to assume that the king will be disrobed by the cosmetic reforms brought about by Parliament. Changing the name of the Army and removing the word ‘Royal’ and by cutting the budget of the palace will not suffi ce. Indeed, it is said that a counter-revolution is being planned. The upper rungs of the Army are active in scheming a comeback. And in Nepali civil society, there are many fallen stars who are ready to join hands against the revolutionary forces. To sustain the revolution, Parliament, as it is currently constituted, must be dissolved. It has all the old discredited cronies. Their strategy is to prolong the life of Parliament and to delay as much as possible the elections for the Constituent Assembly. It is said that, if elections were to be held today, the Nepali Congress would be wiped out together with many of its allies in the Seven-Party Alliance. An old and ailing GP Koirala would be relegated to the dustbin of history. And justice for all One of the fi rst decisions of Parliament, after the February Revolution, was to appoint the Krishna Jangrai Majhi Committee to probe into atrocities committed by the security forces. Majhi, formerly a judge of the Supreme Court, resigned. He is widely recognised as an upright and just man. Nevertheless, in intense times such as these, routine procedures and practices must be jettisoned. One decision, that Parliament can and ought to take, is to implement the recommendations of the 1990 Mallik Commission which found the then prime minister, cabinet ministers, police and Army offi cials guilty of acts of atrocities against the people of Nepal. But the government declined to act and betrayed their mandate. The Attorney General complained that the report was fl awed. It was never implemented. A Public Interest Litigation was fi led in the Supreme Court asking for directions to the government to implement the recommendations, but this was rejected. This gave the Army, and the police, virtual impunity. The UN Commissioner for Human Rights in Kathmandu, Ian Martin, has gone on record to say that it was a mistake not to implement the report. As a result, the very same offi cers committed atrocities once again in the mass demonstrations that led up to the February Revolution in Kathmandu and all over Nepal. The performance of the Supreme Court was hardly glorious. The challenge to the imposition, by the king, of a state of emergency was left undecided by the court until the people decided the question through a revolution. There is a judge on the court who has gone on record saying that the king was above the Constitution. Having said that, habeas corpus and some other human rights cases were dealt with promptly, by some Benches, during the insurrectionary period. All in all, as for the Apex Court, it was a mixed record. The Constitution needs to be scrapped. It ought to be replaced immediately by an Interim Consti- tution, drafted by a committee appointed by popular vote. It must make a radical departure from traditional Constitution. Though it may borrow some articles from the Indian and South African Constitutions, it must make a radical departure and proceed to lay down, for the fi rst time, the basic structure of a Constitution for a democratic socialist republic where Capitalism will be relegated to a corner and Fundamental Rights reign supreme.

|420 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NEPAL

Tales of repression No attempt to reconstruct society can ever be complete without a public stocktaking of the thousands of young Nepali boys and girls who were tortured, executed and abducted by the police and security forces. From the Maoist groups alone thousands of people have been jailed. We met with Krishna Prasad Prajuli, father of Shiva, a 28-year-old man from Leknath municipality district Kaski, who has been missing since 2001. He was taken by the civil Army from Pumdi Bhundi (outside Pokhara) while he was returning after visiting his relatives. After picking up Shiva, the Army raided Krishna’s house thrice. He said that many others, who were picked up from his village, have disappeared. We met with AN Baral, father of Netra Prasad Baral, a 24- year-old youngster, who was picked up from village Bharatpur by the Army and taken to Phulbari Barraks at Mahendragarh. He sent a letter to his father. He was studying for his BA. Netra was handcuffed and blindfolded and never seen again. We met with Govinda Gautam, whose uncle Damodar Gautam (Sangram), was picked up at 8.30 pm from Dhanakuna by the Army about three years ago. He was injured in a mine blast at the time he was picked up. He was an innocent by-stander. In agony, he begged for water from the Army. Instead, the commander pissed in his mouth. He was kicked and thrown into a truck. He said that he wanted to see his nine-month-old son before he died. Govinda’s father was in the police, but he was told by the Army that, if he interfered, he would be behind bars. We met with Tara Adhikari, 34. She is a vegetable vendor. Four years ago her husband, Chhabhi Adhikari, 34, was killed by the Army. Two years ago her sister-in-law, Munna Adhikari, 24, was also killed by the Army. They were Maoist full timers. They came from village Sahimaran in Kaski district. They found the corpse of Munna. She was blindfolded with her hands tied behind her and shot in the temple. We met with Dilliram Adhikari, 40, resident of Pokhara, and a teacher, since the 1980s, in the government school. In January 2006, at midnight, Inspector Narendra Chand, together with the Army and the police from Phulburi, beat him up and kept him in detention for a month. Mary Arno’t of the International Committee of the Red Cross, helped him get out. We met with Biswa Prasad Lumichane in the Kaski Karagar prison. He, along with several of his male comrades, was on the second day of his hunger fast. There were more than 70 young boys and men in the jail. Along with him were women comrades who are separated by a wall. Asha, Sharmila and several others who all had suffered in different ways − wounded by a bullet, given electric shocks, tortured, their heads pushed under water in drums. We met Leela Thapa who was ordered to be released by the Supreme Court. She, together with Ambika Mudbari, was on fast in jail. Ambika Mudbari has been in jail for six long years and has been charged with collecting donations for the Maoists. She was tortured by putting her head in a water drum. They demanded that those who have disappeared be accounted for; that prisoners of conscience be released; that the Terrorist Act be repealed; and that war criminals be punished. There were eight women under preventive detention and six under the Terrorist Act. Though the jail had capacity for only 60 persons, there were 200 persons kept like pigs herded together. There were only four toilets for 200 people.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |421 CHAPTER NINETEEN

Beware the Royalists The forces of reaction seek to waste time while they regroup thinking that the revolutionary fervour will cool down with time. They may be right. But then, they may be wrong. The mass demonstrations, we have seen in recent months, prove that public memory is long and public anger is near the surface despite the reforms that have taken place. Like in all things, it would be the greatest mistake for anyone to compare Nepal with any other society and draw parallels for lessons to be learnt. This is because Nepal could well be, despite its poverty, one of the most socially and politically advanced countries in the world today. The key to success lies in the speed and in not following precedents because all precedents are invariably limited by Capitalism. Nepal is no longer, and need no longer be, the capitalist country with a capitalist Constitution even though it may exist within global capitalism. This is what the Nepal experiment is all about.

–Combat Law September-October 2006

|422 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation FUTURE TENSE

epal, in the framing of its Constitution, could do well not to turn to either India, or the US, or any other country for a model to emulate. These Constitutions were framed to propagate Ncapitalist systems, and, even in that context, have become somehow outdated if not obsolete. The US Constitution is retrogressive on the aspect of locus standi, which is the capacity to initiate litigation that does not recognise the public interest petitioner as a well-intentioned person unless she or he is directly affected and only then can she or he sustain litigation. The Indian Constitution, which is far more progressive in its response to the poor than the US Bill of Rights, has not recognised many economic rights − such as the Right to Housing, or the Right to Education, or even the Right to Food − as a Fundamental Right. Indian courts have incorporated these rights by Judicial law making. However, subsequent attempts to introduce rights − such as the Right to Education by a constitutional amendment − caused both confusion and heartburn. The most recent example − of South Africa − includes a Constitution with the latest innovative clauses such as the Right to Housing and the abolition of the death penalty. Yet even the South African Constitution is placed entirely within a capitalist framework where individual property rights are supreme. As a result, land reforms have not taken place and resentment is brewing on a massive scale in the countryside. People must know that Nepal today, despite its economic backwardness, is one of the most advanced nations on the planet in terms of the level of social consciousness. The February revolution draws attention to the aspirations and dreams of the people of Nepal. Therefore, the public good is paramount and must eclipse the dominant position of property rights found normally in a capitalistic constitution. True, a system of multi-party democracy and private property can exist within a framework that is predominantly socialist. Can democracy and socialism co-exist? Can democracy and Commu- nism co-exist? The Nepali people may perhaps introduce, for the ﬁ rst time, a system of governance that puts the interest of the society and the well being of its people on a higher platform than crass proﬁ teering through a capitalist enterprise. Nepal, in the enactment of a Constitution, will complete the legal articulation of the dreams of generations of poor Nepali people who have suffered under the king for so long and who, as envisaged in the second revolution, desire a nation where dignity of the individual is supreme and peace is at hand. The drafting of a Constitution, and the ultimate words and phrases found therein, are only one part of the Constitution-making process because the manner in which these ideas are drawn out from the people are as important as the ultimate formulation itself. Should a small group

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |423 CHAPTER NINETEEN of persons sit aside behind closed doors and ponder over voluminous manuscripts studying the decision-making process in India and elsewhere? Should the people of Nepal not be involved in a grand large-scale exercise where, speaking in simple terms but straight from the heart, those, who have suffered the loss of the dear ones, will say what they want as terms of the Constitu- tion. Are poor and illiterate people incapable of drafting a Constitution for themselves? To make Constitution framing a closed doors affair is perhaps the greatest mistake a country can make. More so, as it is a country which has witnessed a revolution by people who were astute enough to know that the king and his numerous admirers, even in the SPA, were those without whom the country would be far better off. They know who the friends of the people are. They know what the country needs. The involvement of masses of people in the drafting of the Constitution through large public meetings and suggestion forums is possibly the way forward. the Constitution would then truly be a document and of the people. It would contain nothing esoteric or confusing or convoluted. The Constitution must allow for no compromise. It must contain nothing ambivalent. It is important to take note of the fact that the US government possibly already has a draft Nepal Constitution that may be lying in the pockets of certain persons of the SPA at this moment. The drafting of the Constitution will be an embattled affair. The manner in which it will be drafted and its actual terms will be as momentous as the February Revolution. What follows are some components of a possible future Constitution. • The Constitution framed, and given by the people of Nepal, will usher in a sovereign, secular, socialist, ”Republic of Nepal,” free of monarchy and decades of oppression; • To bring about a system where the poor and minorities are uplifted and are free and where resources are used entirely to serve the common good; • To bring about re-organisation of the police, the paramilitary and the Army; to incorporate the Maoists; to eliminate torture, execution and disappearances; to abolish the death penalty; to put the forces effectively under civilian control; to introduce community policing; to divert scarce State resources – currently expended on the forces – towards the essentials of life such as food, education, health services, etc; • To grant general amnesty releasing people from prison and thereafter to radically reform the prisons and lock-ups focusing on the rehabilitation of the inmates; • To make special provisions for reservation at all levels, including the Judiciary, and in promotion, afﬁ rmative action and positive discrimination, reservation for marginalised sections, indigenous people, Madheshis, women and minorities, and to enforce a system of proportional representation; • To abolish untouchability effectively and completely and to root out atrocities and discrimination against the Dalits; • To reorganise the districts and create states of the Republic of Nepal keeping the interests of ethnic, religious and minority groups in mind; • To provide for effective federalism so that – save for a few areas such as defence, foreign

|424 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NEPAL

affairs, Judiciary and the like – the states administer themselves in an autonomous fashion; • To abolish the Supreme Court, as currently constituted, and reconstruct the Apex Court as well as the High Courts by ensuring that only those judges, in whom the people of Nepal have faith, are appointed. Ensuring the enforcement of the Fundamental Rights to be the highest duty of the Judiciary; • To provide for the enforcement of all human rights, as provided for in the UN, in both private and public bodies and persons; to provide for the automatic integration, into Nepali law, of all UN instruments and the principles of customary international law; • To recognise rights of indigenous people to continue to reside in their areas and in the forests even without written title to lands; • To recognise rights of the poor against forced evictions and to not displace them from their own lands; • To enshrine, in the Constitution, the primacy of land reforms. This would ensure that land is transferred into the hands of the landless and small farmers;. • To ensure that the plans and budgets are made in a transparent manner and in consultation with the people, including the minority and special groups, so as to ensure that the State’s resources are effectively spent in the progressive enforcement of the Fundamental Rights; • To defi ne as precisely as possible and to expand from time to time the range of constitutionally protected Fundamental Rights including cultural, social and language rights; • To reconstruct the NHRC and other commissions, to give them more power to enforce their orders and to ensure that those appointed truly have a reputation among the people in the area of human rights, and truly represent the different sections of society including the Dal- its, women and other minorities; • To introduce the rule of the people, at the village level, so that people take decisions that directly affect their lives and to ensure that nothing is done contrary to the will of the people; • To affi rm the doctrine of Secularism. The State has no religion and shall, at all times without any exception, stay away from religion and shall, under no circumstance, provide funds or assistance of any kind to any person or body associated in any manner with religion; • To affi rm the uniform civil code throughout the State where no custom, tradition, practice, or law − including marriage, divorce, maintenance, inheritance, custody and the like − shall operate, even if enacted, if the said custom, etc., is found to discriminate against women and the said provision shall be deemed to be void to that extent only. All other religious practices, that do not discriminate or are not offensive to the Fundamental Rights, shall continue; • To affi rm the right to self-determination where a collective of people, considering themselves to be systematically oppressed, shall have the right to vote to secede from the Union, • To affi rm the right to adequate and nutritional food to all persons residing in Nepal and to enforce this right as a fi rst charge on the nation’s resources; • To affi rm the public’s rights to the airwaves and the right of non-profi t bodies to run radio stations and the like without any charge; KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |425 CHAPTER NINETEEN

• To affi rm the Right to Information and to radically reorganise the functioning of the government and private bodies so that information is available to the public on demand without delay, demur or charge; • To eliminate all forms of violence and discrimination against women and children, stamp out traffi cking, enforce 50 percent reservation for women everywhere and introduce positive discrimination and affi rmative action programme for women; • To integrate all disabled persons by providing comprehensive access, freedom from discrimination and reservation in education and employment; • To provide all poor persons with free and comprehensive healthcare with specifi c attention given to HIV+ persons so that they are treated with dignity and without discrimination and stigma to live a constructive and purposeful life; • To affi rm that the State shall allocate its resources in such a manner that the enforcement of Fundamental Rights will be a fi rst charge on the State exchequer over defence of the State, the police and the like and that State shall endeavour to meet the Millennium Development Goals of the UN; • That the State shall be a friend of labour protecting them through a comprehensive framework of laws and courts, ensuring the Fundamental Right to work, a minimum age, effective redressal, in cases of unfair treatment, and provisions for security in old age. The State shall preserve the environment and hold the land and its mineral wealth, the waters, the forests and the air in trust for and on behalf of the people of Nepal; • That the State shall construct a Judiciary with people of integrity, wisdom and a zeal for public service who shall be, as an institution, independent of the Executive and shall administer justice impartially and fearlessly. Drafted on May 14, 2006, Kathmandu

–Combat Law September-October 2006

|426 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS 3 Kaliyug: TheDescentIntoDarkness 13. The ONGCinSudan 12. ImpactontheEconomicRights WTO: 11. 10. Integration of InternationalRefugee Critique:HMSeervaionJinnah 9. Media:theStingOperations 8. TheJammu&KashmirHighCourtand 7. Legal AwarenessontheIssueof 6. Two-Child Norm: A Terrible Crisis in the 5. Trafficking ofWomen andChildrenon 4. Constitutional Law: Reflections on the 3. TheIndianSupremeCourtandPublic 2. NoBudgetsfortheFundamental Rights 1. Conventions inIndianLaw Economic Rights Disability RightsNeeded Making the Rise Indian Experience Interest Litigation

CHAPTER TWENTY Illustration: Shyam Jagota

The NGOs have complained for decades that the Fundamental Rights cannot be enforced unless there are adequate budgets to back them up. The courts have responded by saying that budgets are not justiciable and that courts cannot get into that area.

|428 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation NO BUDGETS FOR THE FUNDAMENTAL RIGHTS

he NGOs have complained for decades that the Fundamental Rights cannot be enforced unless there are adequate budgets to back them up. The courts have responded by saying that Tbudgets are not justiciable and that courts cannot get into that area. This is a questionable proposition, for Fundamental Rights are undoubtedly under the jurisdiction of the courts. Basic rights − such as healthcare, education, food and housing − are being fl outed because the State chooses not to make money available. Are the courts required to stay silent on this matter? The debate, over the shabby budget available to the Judiciary, will perhaps force the Judiciary to take notice and break from the past apathy and hands off approach regarding budgets. My article “Delay: Not the Judiciary’s Fault,”1 talks about how the Judiciary, in India, has been starved of funds. Resultantly, India has one-fi fth the number of courts it ought to have given the population and the volume of litigation. Delays are, therefore, inevitable as judges are unable to handle the workload and are forced to grant adjournments. The Executive has been quick to attack the Judiciary on this issue, knowing that in the public perception the judge is seen as responsible for the delay. The Executive, who refuses to appoint judges and is the real culprit, escapes scrutiny and censure. And the Judiciary appears unsure as to how the propaganda battle waged against it is to be countered. The former President of India, Mr APJ Kalam, was so naïve as to suggest that judges work on Sat- urdays, perhaps not realising that judges in the superior courts often not only work on Saturdays but also on Sundays. Supreme Court Justices, for example, have a fresh additional workload on Mondays and Fridays apart from the other hearings on other days. Like school children they have an enormous amount of home work to do, they have probably the highest work load as compared to any superior court in the world. The current President and the Speaker of the Lok Sabha also went on record attacking the Judici- ary for delays. The Lok Sabha Speaker Somnath Chatterji, who is fond of warning the Judiciary not to cross the ‘lakshman rekha,’ himself transgressed the forbidden line when he found fault with the Judiciary for the delays when the root-cause was the reluctance of the Executive to appoint more judges, set-up more courts and give the Judiciary fi nancial autonomy. Reverting to the issue of budgets for Fundamental Rights, the paper by Kriti Toshniwal and Vinod

1 See page 397 of this volume. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |429 CHAPTER TWENTY

Vyasulu titled, ‘Karnataka: Fiscal Correction for Human Development,’2 makes a study of the budgets of the state of Karnataka for the period 2000-2008 and concludes that even though Karnataka was one of those states with unused surplus cash, the proposed increases and capital outlays for developing infrastructure for education and health, did not take place. On the contrary, “expenditure on health and education as a percentage of total expenditure actually declined over the period.” In fact, “expenditure on social services as a percentage of total revenue and capital expenditure has even recorded a slight fall.” In his article, ‘ Budgeting for Right to Healthcare in India,’3 Ravi Duggal points out that India has one-third the number of general practitioners that we ought to have. On the other hand, instead of focusing on three hundred essential medicines as recommended by WHO, India has 20,000 drug companies and over 60,000 formulations, many of them irrational if not downright fake. While WHO recommends ﬁ ve percent of GDP to be spent on public healthcare services, the present government commits less than three percent. Yamini Mishra and Bhoomika Jhamb in their article ‘Gender Budgeting and Beyond: Emerging Is- sues from the Budget 2008-2009’4 calculated that the women-speciﬁ c allocation (percent share of total expenditure) for women in agriculture was 3.66 percent and for food subsidy was 4.35 percent. Priority accorded to women in health, declined from 53.91 percent share in the last budget (2007-2008) to 53.56 percent in 2008-2009. Similarly, the percent share in higher education dropped from 19.27 (2007-2008) to 17.13 percent (2008-2009). There were no allocations in the present budget for the implementation of the Domestic Violence, Act. In his article ‘A Budget for the Urban Rich, not Farmers’5 Praful Bidwai points out that last year the government “wrote off taxes and duties worth a colossal Rs. 2.79 lakh crores.” This equals “one-half of all the taxes collected” and included “Rs. 1.48 crores in customs duty exemptions, Rs. 58,655 crores in corporate tax concessions, and over Rs. 38,000 crores in income tax exemptions.” The Finance Minister also “ reduced taxes on cars, two wheelers, air conditioners and refrigerators.” He also points that the defence allocation “ stands at Rs. 121,160 crores as compared to a mere Rs. 34,300 crore to education.” Vincent Manoharan and Paul Diwaker of the National Campaign for Dalit Human Rights in their article ‘ Budget Day- A Black Day for Dalits Again’6 lament that though under the Scheduled Caste (SC) sub-plan, Government of India was liable to allocate 16.7 percent of the total planned budget for the Dalits as a percentage equivalent of their share in the population less than one- third was allocated. Thirteen departments/ministries made, “negligible allocations more as a formality.” Many of the ministries and departments particularly road transport and highways, science and technology, land resources, rural development, youth and sports, agriculture research, com-

2 Human Rights and Budgets in India, HRLN-CBGA publication, 2009. 3 Ibid. 4 Ibid. 5 Ibid. 6 Ibid. |430 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS merce, urban development and water resources made zero allocations”7Ashutosh Kumar Vishal of the NCDHR in his article ‘ Union Budget 2008-2009: Denies Scheduled Caste their Right to Development’8 makes the same point. In a stunning article ‘ Concern for the Aam Admi- How has it been met in the Budget?’9 Dr NC Saxena points out that, “that according to the Planning Commission’s Approach Paper for the XI Plan, there has been a sharp increase in unemployment (from 9.5 percent in 1993-94 to 15.3 percent in 2004-2005) among the agricultural labour households.” Though the present government promised in it’s ‘common minimum programme,’ way back in 2004 that it would increase public spending on education to six percent and on health to three percent of GDP, “there has been hardly any serious effort in the budgets presented to move towards the announced targets. Overall expenditure on education and health has stagnated at about half the desired levels.” Mere additional allocations in the central budget are misleading because, “more than 80 percent of the expenditure on these sectors is borne by the states, and unless they too fall in line, additional central allocations do not change the picture.” He also demonstrates how “expenditure on education and health as percentage of total expenditure has stagnated or even fallen in the states in the lat eight years.” He makes a scathing critique for the budgets for the implementation of the National Rural Em- ployment Guarantee, Act (NREGA). “In 2006-2007, the total foodgrain released for wage employment schemes was only 24 lakh tons as compared to 68 lakh in the previous year. This has further come down to only 7.3 lakh tons in the current year (upto November 2007) and may not even reach 15 lakh by the end of March 2008. Converting these fi gures into cash would imply that the total expenditure by the Government of India on wage employment schemes came down from Rs. 18406 crores in 2005-2006 to Rs. 16,117 crores in 2006-2007, and close to Rs. 15,000 crores in the current year. If infl ation is taken into account the allocation for 2008-2009 is less than what government spent in 2005-2006 by atleast 30 percent. No wonder the legal guarantee of hundred day wages, according to the Comptroller and Auditor General (CAG), has been fulfi lled in only three percent of cases. Thus the introduction of NREGA has actually reduced governments fi nancial liability to support wage employment.” Studying the budget, Dr Saxena found that the expenditure on child labour, rescue and rehabilitation came to “less than 30 paise per child worker per day.” Dealing with the rural distress and referring to a press note of the National Sample Survey Organisation (NSSO) his calculations found, “as many as 19 percent of Indians in 2005-2006 living in rural areas belong to households which cannot afford to spend more than Rs. 12 a day per person on consumption, and in the towns and cities as many as 22 percent belong to households where the daily per capita expenditure is less than Rs. 19.” Scanning national data, Dr Saxena found, “only about half the poor have Below Poverty Line (BPL) or Antayodaya Anna Yojana (AAY) cards whereas 70.4 percent of the richest quintile have managed to get these cards.”

7 Ibid. 8 Ibid. 9 Ibid. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |431 CHAPTER TWENTY

In his article ‘Ensuring Access to Drinking Water and Sanitation in Human Rights Paradigm,’10 Gyana Ranjan Panda calculated that only 52 percent of the target of the “ Accelerated Rural Water Supply Programme (ARWSP)” was achieved because there was “massive under utilisation of the allocated funds.” The CAG found, “several examples of corruption, fraud and waste and also poor monitoring of surveillance of the water quality.” In the International Year of Sanitation (2008), the Government of India claims to have successfully implemented the Total Sanitation Campaign (TSC) in 578 out off the 610 districts of the country. However, the mid-term review report, the annual report as well as the outcome budget described the “moribund” state of affairs. Pravas Mishra in his article ‘Surplus Budget but Neglected People’11 analyses the budget for the state of Orissa and fi nds that the state expenditure on health declined from one percent of GSVP in 2001-2002 to 0.85 percent in 2007-2008. Similarly the state expenditure on family welfare declined from 3.92 percent to 3.41 percent during the same period. The budgetary allocation on school and mass education showed “ a declining trend over the period of nine years.” The Orissa Education Watch, 2006 found, “half of the schools in poor condition.” Seventy three percent of schools lacked toilets. The schools lacked, “basic facilities for disabled children and safe drinking water.” The CAG report, 2006 found, “out of 48,490 schools in the state, there is no facility for drinking in 2,866 schools, no toilets in 31,131 schools and no electricity in 41,205 schools.” In his article ‘A Bag of Tricks to get the Votes,’12 Prof Arun Kumar points out that “agricultural investment as a share of the total investment has fallen sharply.” He also argues that the rate of infl ation is not correctly calculated because the service sector, whose share in the economy is now 60 percent, is not represented in the infl ation index; so the index is not representative of the price rise. The rise in rents, school fees, medical expenses, cost of fi nancial services, etc., are not represented in the present infl ation index.” Enakshi Ganguly Thukral, Bharati Ali, Abhijeet Nirmal and Madhumita Purkayastha of Haq – Cen- tre for Child Rights have analysed the budget for children by desegregating the allocations made for the benefi t of the children from the overall budget and found, “several major schemes that have allocations for children missing from the expenditure budget.”13 The share of budget for children according to statement 22 was 4.5 percent, less than 4.8 percent last year. There was a fall in the budget allocation for child health in proportion to the total budget from 0.268 in 2007-2008 to 0.244 in 2008-2009. The authors point out that the juvenile justice boards (JJB) and child welfare committees (CWC) are to be set up in all the 611 districts of the country, yet the money has not been made available for setting up these institutions. Kamal Nayan Kabra in his article, ‘ Corporate Euphoria Again’14 analyses the budget and con-

10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. |432 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS cludes that, “the share of public expenditure on rural development by the Union and the state governments in the Net National Product (NNP) that used to be 3.6 percent for a population that is over 70 percent has come down after liberalisation and the period of fi scal consolidation is just 2.7 per cent of the NNP. Similarly, the share of total expenditure on agriculture and allied activities, including irrigation and fl ood control, that used to be 37 percent of the First Plan total expenditure, has steadily declined to 16.5 percent for the Tenth Five Year Plan period.” Dealing with the forgoing of public revenue he fi nds that, “On account of various tax concessions, exemptions and incentives, the total excise, customs, personal income tax and corporate income tax revenue foregone during 2004-2005 was 2.067 lakh crore. It increases to nearly Rs. 2.352 lakh crore in 2005-2006. Of this amount, the exemptions from corporate income tax alone amounted to about Rs. 34,620 crore. This amount increased to over Rs. 50,000 crore next year. Indeed, the corporate income tax foregone by the Union Government is trivially less than the total amount spent by both the Union Government and the 28 state governments on all rural development schemes.”

–Human Rights and Budgets in India 2009

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |433 THE INDIAN SUPREME COURT AND PUBLIC INTEREST LITIGATION

he use of the Constitution to defend and further the rights of the poor has taken a unique turn in India. Unlike many courts in Europe or the United States,1 the Indian courts are em- Tpowered to directly incorporate International Treaties as part of municipal law and to enforce them as such. Thus International Treaties are not only used to interpret ambiguous provisions of law but are also, by themselves, capable of being acted upon in the Indian courts. This very positive interpretation of the Constitution was utilised as far back as 1969 in Maganbhai’s2 case, where the Supreme Court held that international Conventions that add to the rights of citizens are automatically enforceable while International Conventions that take away existing rights require such domestic legislation to become enforceable. In the Gramophone Company of India’s3 case, the Supreme Court held that ‘the comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conﬂ ict with Acts of Parliament’. In the Apparel Export Promotion Council’s4 case the Supreme Court held that ‘the courts must forever remain alive to the international instruments and Conventions and apply the same to a given case where there is no inconsistency between international norms and the domestic law occupying the ﬁ eld.’

1 While most European States adopt a dualist system with respect to incorporation of international law, former countries from the Soviet Bloc have been much more willing to directly incorporate human rights Treaties, international customary law and general principles of international law within their constitutions and thereby permit judicial application. See, for example, the Constitutions of Latvia and Estonia. A similar trend is evident in Latin America. 2 Maganbhai vs Union of India, AIR 1969 SC 783 (1969). The Supreme Court stated: ‘By Article 73, subject to the provisions of the Constitution, the Executive Power of the Union extends to the matters with respect to which Parliament has power to make laws. Our Constitution makes no provision making legislation a condition of the entry into an International Treaty in times either of war or peace. The Executive Power of the Union is vested in the President and is exercisable in accordance with the Constitution. The Executive is qua the State competent to represent the State in all matters international and may by Agreement, Convention or Treaties incur obligations which in international law are binding upon the State. But the obligations arising under the Agreement or Treaties are not by their own force binding upon Indian nationals. The power to legislate in respect of Treaties lies with Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the Treaty or Agreement operates to restrict the rights of citizens or others or modifi es the laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the Agreement or Treaty….If, in consequence of the exercise of Executive Power, rights of the citizens or others are restricted or infringed, or laws are modifi ed, the exercise of power must be supported by legislation : Where there is no such restriction, infringement of the right or modifi cation of the laws, the Executive is competent to exercise the power. 3 Gramophone Company of India Limited vs Birendra Pandey AIR 1984 SC 677. 4 Apparel Export Promotion Council vs AK Chopra, 1999 (1) SC 756. |434 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

Another important divergence of Indian law from European and US law is in respect of lawmaking by judges. The notion or ‘fi ction’ that judges only interpret the law has long since been discarded. It is now well settled that judges do, in fact, make the law, often through progressive and creative interpretation. The progressive teleological interpretations of the European Court of Human Rights and European Court of Justice are a case in point. The Indian courts have, however, gone one step further. The Supreme Court has candidly admitted that judges do, in fact, make law, particularly in circumstances where there is a gap in the law or where legislative coverage in respect of a Fundamental Right has been lacking for a considerable time. It is interesting to note that some western courts that have moved in the same teleological direction have sometimes been compelled to issue detailed orders or even re-write legislation. As the decisions of the Supreme Court stand on par with Statutes, a combination of this lawmaking propensity together with the incorporation of international standards in Indian law makes for a very potent force. This was seen in Vishakha’s5 case where, due to the lack of a law relating to sexual harassment in the country, the Supreme Court incorporated the provisions of the Conven- tion on the Elimination of All Forms of Discrimination Against Women and laid down guidelines in respect of the prevention of sexual harassment and punishment for that crime. Locus standi in the enforcement of ESC Rights The debate on the Optional Protocol manifests a restrictive approach on the issue of standing to sue, and may benefi t from the approach of the Indian courts. Western law traditionally requires a direct connection between litigant and the subject matter of the litigation. In India, however, innovative developments came over two decades ago when the Supreme Court held that it was permissible for any person acting bona fi de in the interest of the poor, illiterate or the oppressed to fi le writ petitions either in the High Courts or the Supreme Court for the enforcement of a Fundamental Right.6 The poor in India rarely know the law and are too poor to litigate. As a result

5 The Court stated: ‘In the absence of domestic law occupying the fi eld, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are signifi - cant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the Fundamental Rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.’ Vishakha vs State of Rajasthan, 1997 (5) Scale 453 at para. 7. Available at www.supremecourtonline.com/cases/2447.html 6 See, for example, SP Gupta vs Union of India & Another [1981] (Supplementary) SCC 87; where the Court held that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reasons of violation of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any Fundamental Right of such person or class of person, in this Court under Art. 32 seeking Judicial redress for the legal wrong or injury caused to such person or determinate class of persons. This Court also held that procedure being merely a hand- maiden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffi ce to ignite the jurisdiction of this Court.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |435 CHAPTER TWENTY of the ruling, however, any doctor, lawyer, social worker, academic, indeed any person can ﬁ le a case for the enforcement of the rights of millions of persons without needing to demonstrate any direct nexus with the reliefs sought in the litigation. Burden of proof The liberal standing requirements, however, raise the issue as to how a public interest litigant is to gather the evidence necessary for a national level case relating to large numbers of poor persons? The Supreme Court answered that question by laying down that once the public interest petitioner brought the issue to the court, he is viewed as having done a service to the court and the people. Thereafter, it is the duty of the court through the appointment of commissioners to gather the evidence necessary to establish the facts for the prosecution of the case. In other words, the evidentiary burden shifts on to the court and it becomes the public duty of the court to continue with the matter. Moreover where the breach of a Fundamental Right is alleged the burden is on the State to demonstrate that its actions are legal. Mandatory orders and their implementation How are the orders of the court to be enforced? Is it adequate for the court merely to make an order and then sit back and wait for the petitioner or some aggrieved party to ﬁ le a case for contempt when the order is disobeyed? An interesting innovation took place on this point after the Judiciary noticed that orders of even the superior courts were routinely disobeyed in India. The Court developed the practice of issuing the ‘continuing mandamus,’ whereby after the orders are issued, courts continued to retain jurisdiction over the matter and periodically reviewed progress of the implementation of the court order. Resources The Indian Supreme Court considered the question of how courts should respond to the routine objections of states that they do not have adequate funds to enforce ESC rights. In the Ratlam Municipality7 case, the Supreme Court held that when it comes to the enforcement of a human right the court would not entertain an Enquiry into the ‘perverse expenditure logic’ of the state departments.

7 Ratlam Municipality vs Vardichand and Others, AIR 1980 SC 67. Residents within part of Ratlam Municipality, lacked sanitation and brought legal action against the municipality requesting that drain pipes be constructed. The municipality claimed a lack of funds. The magistrate gave orders that the Municipality had to draft a plan within six months. After the High Court approved the order, the municipality appealed to the Supreme Court. The Supreme Court upheld the order and directed the municipality to take immediate action within its statutory powers. This included construction of suffi cient public latrines and drains and provision of water supply, the Supreme Court held that the plea of fi nancial stringency by the municipal body is no defence for its failure to fulfi l its statutory obligations. This Court held that “The plea of the municipality that notwithstanding the public nuisance, fi nancial inability validly exonerates it from statutory liability has no juridical basis. The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the state regardless of budgetary provision. Otherwise, a profl igate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defense a self-created bankruptcy or perverted expenditure budget. That cannot be.” Further, it held that “Decency and dignity are non-negotiable facets of human rights and are a fi rst charge on local self governing bodies.” |436 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

ESC Rights There have been hundreds of cases relating to the enforcement of ESC rights through the medium of Public Interest Litigations. In the People’s Union for Civil Liberties case,8 which is a petition that has affected millions of people throughout India, the Supreme Court directed a Mid-day Meal for school children, the giving of highly subsidised grain to the poor particularly indigenous people, the sick and the disabled, an employment scheme for the unemployed, and pensions and free grain for the aged. In the CERC’s case,9 the Supreme Court held that the right to health and medical care for workers is a Fundamental Right. In Vincent Panikurlangara’s case,10 the Supreme Court held that ‘public health is of high priority – perhaps the one at the top.’ In the Pas- chim Banga Khet Mazdoor Samity’s case,11 the Supreme Court held that the State cannot avoid its constitutional obligations to provide medical services to the people, on account of fi nancial constraints. In Unikrishnan’s case,12 the Supreme Court said that education was a Fundamental Right and it was the duty of the state to provide free and compulsory education for all children. In Shantistar Builder’s case,13 and in the Nawab Khan’s case,14 the Supreme Court held that housing was a Fundamental Right and that ‘it is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The state has the constitutional duty to provide shelter to make the Right to Life meaningful.’ The mere fact that encroachers have approached this Court would be no ground to dismiss their cases. Where the poor have resided in an area for a long time, the State ought to frame schemes and allocate land and resources for rehabilitating the urban poor. In MC Mehta’s case,15 the Supreme Court held that everyone has a right to a clean and healthy environment. In Chameli Singh’s case,16 the Supreme Court expanded the defi nition of the Right to Life holding that “In any organised society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the Right to Food, water, decent environment, education, medical care and shelter. These are basic human 8 People’s Union for Civil Liberties (PUCL) vs Union of India [(2001) 7 SCALE 484]. 9 CERC vs Union of India [(1995) 3 SCC 42]. 10 Vincent Panikurlangara vs Union of India [(1987) 2 SCC 165]. 11 Paschim Banga Khet Mazdoor Samity vs State of West Bengal [(1996) 4 SCC 37]. 12 J.P. Unikrishnan vs State of Andhra Pradesh [(1993 1 SCC 645]. 13 Shantistar Builders vs Tatome AIR 1990 SC 630. Upholding the importance of the right to a decent environment and a reasonable accommodation, the Court held: “The Right to Life would take within its sweep the Right to Food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fi reproof accommodation.” 14 Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan, AIR 1997 SC 152. 15 MC Mehta vs Union of India and Ors., [(2001) 3 SCC 756] 16 Chameli Singh vs State of UP [(1996) 2 SCC 549]. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |437 CHAPTER TWENTY rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.”17 The Optional Protocol : Double standards? For the developing world in general and India in particular the principal forensic issue will be the clash between two systems – the WTO and the Constitutions of the States that protect the Right to Life and injunct discrimination. The WTO system of Treaties and Agreements have an immediate impact on the poor and denude them of the Right to Life. Translated simply in ground level politics, the WTO philosophy can be summed up in three words – subsidies are bad. But the poor can access housing, food, education, health services and public transportation only if these are subsidised. This was understood by government after independence right upto the eighties when a part of the nation’s wealth was diverted to the poor. Thus a system of public schools and hospitals were subsidised throughout the country where the poor could get free education and medical treatment. These are being dismantled today. The dominant thinking in the middle classes who remain hostile to the poor and see them as lazy and prone to committing crime, and all political parties is that the poor are too numerous to benefi t from education and that resources would be spread too thin. If the poor remain uneducated and the resources are concentrated on the middle classes that would be more effective. Similarly, it is hardly of concern that the poor – denied proper public healthcare – fall sick and die. So too, the commitment government once had to provide subsidised grain to the poor through an extensive network of fair price shops – the largest in the world – is now under attack and the dominant ideology of the government is “either you buy or you die.” Likewise, life saving and essential drugs for the poor suffering from diseases such as fi laria, malaria, tuberculosis, leprosy, diabetes, hypertension and heart disease, which were once under price control, are now too expensive for the poor to afford. Under the WTO regime, the WHO list of essential medicines is being ignored and price control imposed by Statute dismantled. Changes in the patent laws will take drugs out of reach of the poor. Thus two system of law emerge opposed to each other. On the one hand, stands the system of human rights enshrined in international covenants and state Constitutions; on the other hand are the Treaties and Agreements with regards to trade and business under WTO. The latter undermines the former directly and is meant to eclipse human rights. The hypocritical approach of government towards human rights is clear from the way in which governments approach these two systems. The WTO Agreements and policies are implemented with gusto and immediately

17 India has ratifi ed the International Covenant on Economic, Social and Cultural Rights (ICESCR), which ‘commits all State Parties to the present Covenant to recognise the right to an adequate standard of living … including housing’. The Covenant has been interpreted to ground a prohibition on forced eviction that provides for the right to alternative accommodation in the case of forced evictions, although some allowance is made for a country’s resources: ‘Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.’ See Committee on Economic, Social and Cultural Rights, General comment No. 7: The right to adequate housing (Article 11.1): forced evictions (1997) at para. 16. In its 1993 resolution on forced evictions, the UN Commission on Human Rights emphasised that ‘the practice of forced eviction constitutes a gross violation of human rights, in particular, the Right to Housing’. |438 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS whereas implementation of human rights provisions are tied up in interminable discussions on justiceability that have gone on for decades. Even today arguments abound on whether an Op- tional Protocol ought to be drafted. This is laughable since an Optional Protocol can be, in any case, rejected by any State in limine. Similarly, WTO Agreements are implemented in full and it would be preposterous for any nation to be part of the WTO system and implement Agreements only partially. In the UN system, however, the arguments making the rounds is that the Optional Protocol should follow an a-la-carte system with nations picking and choosing to accept and implement what pleases them to do! Imagine an a-la-carte WTO! Decades after ratifying UN instruments designed to protect human rights, the international community is not ready to implement the provisions. Why enact these provisions in the fi rst place if there is no commitment to full implementation? Why make a pretence of agreeing to implement universal human rights standards? And if developing countries like India can follow a principal that in the enforcement of a human right, fi nancial constraints cannot be an excuse why is the developed world so timid as to make the question of resources inhibit the enactment of an Optional Protocol? We are thus on the brink of the development of a new jurisprudence whose ultimate direction is uncertain and fraught with danger for the poor. Will the Constitutional Courts of the States uphold the protection given to human rights or allow these to be eclipsed by Executive Agreements? Will the Courts succumbs to the persuasion to the effect that striking down a term of an International Agreement – albeit unconstitutional – will result in a pariah status for the country or will the courts fearlessly uphold the supremacy of human rights even in the Judicial review of business and trade? Only time will tell.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |439 CONSTITUTIONAL LAW REFLECTIONS ON THE INDIAN EXPERIENCE

he use of the Constitution to defend and further the rights of the poor has taken a unique turn in India. Unlike the courts in Europe, or the United States, the Indian courts are em- Tpowered to incorporate International Treaties as part of municipal law and to enforce them as such. Thus, International Treaties are not only used to interpret ambiguous provisions of the law but are also, by themselves, capable of being acted upon in the Indian courts. This very positive interpretation of the Constitution was made use of as far back as 1969 in the case of Maganbhai vs Union of India1 where the Supreme Court held that international Conventions, that add to the rights of citizens, are automatically enforceable without municipal legislation being amended. On the other hand, International Conventions, that take away existing rights, require such implementation to become enforceable. The second important divergence of the Indian law, from European and US law, is in respect of law-making by judges. The notion that judges only interpret the law has long since been discarded. It is now well settled that judges do, in fact, make the law through very inventive and progressive ways of “interpretation.” The Indian courts have gone a step ahead. The Supreme Court has now quite candidly admitted that judges do in fact make laws, particularly in circumstances where there is a gap in the law or where legislative coverage, in respect of a Fundamental Right, has been lacking for a considerable period of time. As the decisions of the Supreme Court are at par with Statutes, a combination of this law-making propensity, along with the incorporation of international standards in Indian law, makes a very potent force indeed. This was seen in the case of Vishakha vs State of Rajasthan.2 No law, relating to sexual harassment, was in existence in the country at that time. Given this fact, the Supreme Court incorporated the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and laid down the Vishakha Guidelines for the prevention of sexual harassment and the punishment attendant upon the crime. These guidelines are now law and are enforceable throughout the country. The third important development in the Indian constitutional law, relating to the poor, is in respect of standing to sue. The US, and European law, generally requires a direct connection between the litigant and the subject matter of the litigation. In India, however, innovative developments were introduced over two decades ago when the Supreme Court held that it was permissible for any person − acting bonafi de in the interest of the poor, the illiterate, or the oppressed − to fi le writ 1 Maganbhai vs Union of India, AIR 1969 SC 783 (1969). 2 Vishakha vs State of Rajasthan, 1997 (5) Scale 453 (1997). |440 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS petitions either in the High Courts or in the Supreme Court for the enforcement of a Fundamental Right.3 This innovation illustrated that the Judicial System was more than merely a system of justice for the rich. The poor in India rarely understand human rights and even more rarely do they understand litigation. Thus, as things stand today, any doctor, lawyer, social worker, academic, indeed any person, can fi le a case in a proper court for the enforcement of the rights of millions of persons without needing to demonstrate any direct nexus with the relief sought in the litigation. The liberal standing requirements, however, raise the question of how a poor public interest litigant is to gather the evidence necessary for a national level case relating to large numbers of unfortunate persons? The Supreme Court answered that question by saying that once the public interest petitioner brought the issue to the court, he is viewed as having not only done the court but also the country a service. Thereafter, it is the duty of the court, through the appointment of commissioners, to gather the evidence necessary to establish the facts for the prosecution of the case. In other words, the evidentiary burden shifts on to the court and it becomes the public duty of the court to continue with the matter. Another issue, then, is to ensure that the orders of the court are obeyed. Is it adequate merely to make an order and then sit back and wait for the petitioner, or some aggrieved party, to fi le a case for contempt when the order is disobeyed? An interesting innovation took place on this point after the Judiciary noticed that even Supreme Court orders are routinely disobeyed in India. The court evolved the practice of issuing the ”continuing mandamus,” whereby, after the orders are issued, courts continue to retain jurisdiction over the matter and periodically review the progress of the implementation of the respective court order. As for the issue of resources, the Indian Supreme Court considered the question of how courts should respond to the often routine objections of State Parties − that they do not have adequate funds − to ensure that basic fundament rights are enforced. In the Ratlam Municipality case,4 the Supreme Court held that it would pay no heed to the ”perverse expenditure logic” of the state departments in any matter concerning the enforcement of a human right. There have been hundreds of cases relating to the enforcement of Fundamental Rights through the medium of Public Interest Litigations. For instance, in the People’s Union for Civil Liberties case,5 which is a petition that has affected millions of people throughout India, the Supreme Court directed a Mid-day Meal for school children, the giving of highly subsidised grain to the poor and an employment scheme for the unemployed. Similarly, in the Unikrishnan6 case, the Supreme Court said that education was a Fundamental Right and it was the duty of the State to provide free and compulsory education for all children. The Supreme Court has held, in the asbestos case, that the right to health is an integral part of Article 21. And in the Shantistar Builder’s case,7 the Supreme Court held that housing is a

3 See, e.g., [S.P. Gupta vs Union of India 1981 (Supplementary) SCC 87ADD CITATION HERE]. 4 Ratlam Municipality vs Vardichand and Others, 67 AIR, (1980). 5 People’s Union for Civil Liberties vs [NEED FULL CITATION] (2001). 6 JP Unikrishnan vs State of Andhra Pradesh,. [(1993) 1 SCC 645NEED FULL CITATION] (1983). 7 Shantistar Builder’s vs Narayan Khimalal Totame,. [(1996) 1 SCC 233 NEED FULL CITATION] . KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |441 CHAPTER TWENTY

Fundamental Right. Then in 1997, in the Nawab Khan case,8 the Supreme Court held that “it is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The State has the constitutional duty to provide shelter to make the Right to Life meaningful.” Likewise, in the MC Mehta case,9 the Supreme Court held that everyone has the right to a clean and healthy environment and also said that the Right to Life does not mean a ”mere animal existence.” There are many important public interest petitions, coming up now before the Supreme Court, with which the Human Rights Law Network is actively associated. A case, demanding the provision of ARV drugs to persons infected with HIV, is pending. Lawyers, in India, look to South Africa and many South American countries for precedents in this regard. An important case, relating to the Right to Housing for slum dwellers, is also pending before the Supreme Court. A third case relates to the rights of indigenous people who are currently being evicted from forest areas. Here once again, we seek guidance from South America, Canada, New Zealand, the United Kingdom and elsewhere for matters relating to the customary rights of Tribal communities to continue to reside in forest areas notwithstanding their lack of formal title to land. The approach of the Human Rights Law Network is to always undertake cases in collaboration with the people’s movements so that the lawyers learn from them and the orders of the courts are ultimately monitored by the people’s movements. Not much can be done without the support of NGOs. There are some who criticise the activist nature of the courts and say that ultimately an activist Judiciary encroaches on the Executive branch of government. While this may be true, the situation in India must be understood. The Executive branch is mired in corruption and has long ceased to function properly, particularly with respect to its duties towards the poor. Has the Supreme Court encroached upon this realm? Yes, it has. But it has done so on behalf of the poor and to that extent people feel that the Judiciary has done something good. In the long term, it is not a healthy trend to have the Judiciary constantly pulling up the government. Accountability and responsibility of the government must be restored. Today in India, however, the situation is that the Judiciary remains the only democratic institution, the integrity of which, to a substantial extent, cannot be questioned. The law-making, by judges, has also impacted positively on the appointment of judges. Whereas earlier judges were appointed largely by the Executive, in a subsequent Constitutional Bench decision, the Apex Court held that the appointment would be done by the collective of judges in consultation with the Executive. It is said that this is not entirely satisfactory and the Executive must be given a more prominent role. Be that as it may, independence of the Judiciary has been enhanced by judges appointing judges rather than the Executive being empowered to do so.

8 Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan, AIR 1997 SC 152 (1997). 9 MC Mehta vs Union of India and Ors., [1999] ICHRL 58 (29 April 1999). |442 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation TRAFFICKING OF WOMEN AND CHILDREN ON THE RISE

espite the enacting of the Immoral Traffi cking Prohibition Act, traffi cking of women and children rises exponentially in India. Apart from seminars and glossy publications, neither Dthe central nor the state governments have done much to prosecute the brothel keeper, the pimp and the traffi cker. A recent study, published by the NHRC, shows that prosecutions are almost down to zero. To add insult to injury, the traffi cked victim is often arraigned as the key accused and is put in jail. The legal system is so utterly useless that, even in cases where the traffi cker is arrested, bail is inevitably granted and the ultimate acquittal is a foregone conclusion. Courts have often released traffi cked victims, put into state institutions, back into the custody of traffi ckers, posing as relatives, anxious to claim their child. The legal system has failed miserably in its role as protector of the constitutional rights of the traffi cked victim. In Vishal Jeet case (1990.3.SCC.318) the Supreme Court declined to go into the issue of rehabilitation and confi ned itself to giving directions for the setting up of advisory committees which have never functioned despite the order. In 1997, in Gaurav Jain case (1997.8.SCC.114), the two Justices on the Bench of the Supreme Court disagreed and the matter was sent ultimately to the Hon’ble Chief Justice of India to consider whether a larger Bench should be constituted. From then onwards, the court has not found time to address this issue. Justice K Ramaswamy’s scathing criticism of the government’s pretence of rehabilitation is of some importance. “Ultimately it all ended in a fi asco. Unless proper arrangements are made and concerted actions taken ad-hoc attempts to enforce the law defeat the provisions of the Juvenile Justice Act. Proper planning, constant and persuasion are the appropriate means, rather than abrupt, ad-hoc or coercive steps. It is rather unfortunate that juvenile homes run by the government are not yielding expected results.” The principal reason, for the inability to stop traffi cking, is that the law enforcement agency, responsible for implementing ITPA, is itself involved in the traffi cking of women and children. Policemen, throughout the country, have a cosy relationship with brothels, visiting them regularly and are paid bribes as protection money. This scandalous situation, known to everybody, has gone unchecked. But who will police the police? Not only do they protect the traffi cker, pimp and brothel keeper from prosecution but also instruct the public prosecutor, as and when prosecutions do take place, to grant bail and an acquitted. The rescued girl is then given back to the traffi ckers only to return to the brothel.

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |443 CHAPTER TWENTY

Thousands of children are missing from the villages of India, traffi cked to cities by parents, relatives and close associates in the village. They are merely shown as missing in police station records. As a result, apart from a casual Enquiry, nothing else is done and the children are treated as lost. Those who are rescued are kept in awful circumstances. State institutions are worse than jails. The food is worm-infested, toilets overfl ow and, in winter, the inmates sleep on the fl oor. Medical facilities are primitive. Counselling is not available. No wonder, traffi cked victims often feel they are better off in brothels. The root of the matter is that the government budget for looking after a rescued women is mere Rs. 500 ($ 10) per person per month which includes food, clothing, toiletries and medicines. It is this shocking allocation of money that results in traffi cked victims being treated worse than animals. What needs to be done? First of all, no change can take place till people realise the gravity of the situation. Combating traffi cking must be of the highest priority, higher even than the traffi cking of drugs and the arms trade. For this change to happen, poor women and children must be recognised as human beings with rights rather than an object to be sexually exploited. Government of India must form a national nodal agency and a national centre for missing and exploited children so that traffi cking is tackled, not as a local issue alone, but as a federal crime requiring a coordinated national response. Advisory boards, set up under the Act, should evict all government representatives who sit on these boards and do no work. These people should be replaced by reputed social workers. Under Section 13 of ITPA, special police offi cers should be trained and appointed to deal only with traffi cking cases. They should not be given any other work. The CBI should take its role − as the implementing agency throughout India − seriously and appoint a considerable number of offi cers to specialise on ITPA investigations and prosecutions. No victim of traffi cking should ever be put behind bars or prosecuted. No trans-border traffi cked victim should ever be prosecuted under the Foreigners Act or the Passports Act. All traffi ckers, pimps and brothel keepers should be prosecuted not only with respect to the provisions of ITPA but also the Indian Penal Code provisions relating to rape. No victim should be called repeatedly to court over a prolonged period to give evidence. Video conferencing should be used. Bail should not be granted to traffi ckers because they invariably misuse this freedom to get possession of the victim once again. Following the directives of the Supreme Court, in the Delhi Domestic Working Women’s Forum case (1995 1 SCC 14), substantial compensation should be paid by the State to all traffi cked victims. A new and comprehensive system of witness protection must be put into place. The National Legal Aid Services Authority, and the state authorities, should set up a pool of trained lawyers and pay them well. Today they get a shameful pittance for their efforts. A special cadre of public prosecutors should be developed to handle ITPA cases with special emphasis in their training on the confi scation of the assets of the accused and on the prosecution of the police for misconduct.

|444 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

Instead of all this, a new law is proposed to be enacted which is as pathetic as the present government’s efforts to tackle the menace of trafﬁ cking. Fancy provisions call for the prosecution of the customer as if he is going to enter his name, address and mobile number in a register maintained at the entrance of the brothel! All in all, in this land where women are supposed to be revered, trafﬁ cking of poor women and children will continue unabated. The government will continue to, as we say, “pay lip service.”

–Trafficking & the Law 2006

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |445 TWO-CHILD NORM A TERRIBLE CRISIS IN THE MAKING

he Human Rights Law Network began doing public interest writ petitions to implement the reproductive rights of women in a rather spontaneous and incremental fashion. The Su- Tpreme Court decision in Javed vs State of Haryana [(2003.8.SCC.369)] provoked much discussion among social activists because the Supreme Court had gone totally off-track. The judgement was a blunder of epic proportions. Persons, who had been disqualifi ed from contesting Panchayat elections in Haryana, fi led a petition in the Supreme Court impugning the constitutionality of the state notifi cations laying down the norm. In these proceedings, the central government appears to have given the Supreme Court the impression that the two-child norm was part of the national population policy. Nothing could be further from the truth. The consultations, that took place prior to the announcement of the national population policy, showed that the two-child norm, with its package of disincentives, was emphatically opposed due to the anticipated adverse impact on poor women and had therefore been omitted from the policy altogether. The decision of the Apex Court in Javed’s case was a classic example of how a court can make mistakes because the parties, before the court, are unable or unwilling to explain the complexi- ties involved. The court made several mistakes. Firstly, it relied on an obsolete 1960s Club of Rome Framework and characterised “the torrential increase in the population….as more dangerous than a hydrogen bomb” (Russel). It approvingly quotes two obscure writers, on the subject, who say that “the rate of population growth has not moved one bit from 1979.” This was very wrong. The truth is that India has experienced the sharpest fall in decadal growth from 23.81 in 1991 to 21.34 in 2001. This is the lowest population growth rate since Independence! Secondly, it referred to the fi rst to the Seventh Five Year Plans (ending 1991) with their emphasis on punitive disincentives and failed to notice the landmark departure in approach in the Cairo Conference (1994) with the emphasis on development, quality of life, welfare of women and the rejection of disincentives. Thirdly, it failed to notice that none of the grounds, taken in the petition, related to the impact on women. Towards the end of the judgement, under the title “incidental questions,” reference is made to the impact on women but these matters have been summarily dismissed. The court was not informed that population experts, throughout the country, were unanimous in their view that the impact on poor women would be immediate and severe.

|446 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

Research carried out in Orissa, Rajasthan, Haryana and Madhya Pradesh, after the decision of the Supreme Court, indicated that the norm to disqualify candidates led to the desertion of wives and families, seeking of abortions with the associated abortion- related health risks, giving away of children for adoption and initiation of new marriages by male elected members. Women bore the brunt of the disqualifi cation clause. Several states put together a package of punitive measures for the breach of the two-child norm. These measures included − exclusion from elections, exclusion from ration cards, kerosene and other BPL incentives, denial of education in government schools to the third child and withdrawal of welfare programmes for Dalits and Tribals. This two-child norm became effectively a two-boy norm and, despite the prohibition in the law, sex selections and determinations were done extensively in the country. As a result, the sex ratio is skewed to such an extent that no girl children were born for months together in Delhi hospitals and there were villages in India with no girls to attend schools. A terrible crisis is in the making. The Human Rights Law Network (HRLN) collaborated with many NGOs and academics and held the People’s Tribunal on India’s Coercive Population Policies and the two-child norm in 2004. Testimonies of victims and experts were taken. Government offi cials participated and made a fool of themselves. These proceedings are documented in an HRLN publication titled “Coercion versus Empowerment.” Then the government at the Centre changed and the UPA came to power. It must be said, to the credit of the UPA, that the Prime Minister took a stand against the two-child norm and the crisis passed. The BJP- dominated states continued to pursue this policy to varying degrees but with the issue was pretty much defl ated when the central government withdrew from the two-child norm. It was around this time that the Uttar Pradesh and Bihar Health Watch brought us a case of barbaric practices in the government’s sterilisation camps where women were treated worse than animals. The Supreme Court’s fi nal order which came rather abruptly and which directed the enforcement of the extensive government guidelines, which were largely ignored, came to us as a happy surprise. The court directed the government to appoint qualifi ed and experienced doctors for sterilisations, carry out prescribed checks before doing any operation, obtain informed consent, ensure that the specifi ed equipments are available, maintain proper records and statistics, hold enquiries in cases of malpractice and punish accordingly, bring into effect an insurance policy and pay compensation in appropriate cases. Then the Voluntary Health Association of Punjab, with the assistance of HRLN, fi led a writ petition in the Supreme Court seeking guidelines to plug the loopholes in the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Detailed proposed guidelines were submitted to the Supreme Court after holding a series of national consultations on the matter. The matter is pending there. In the meanwhile, despite the UPA propaganda, the situation of women − on the maternal mortality and the morbidity front − continues to deteriorate. The Prime Minister grandly announced the national rural health mission (NRHM) while simultaneously following a policy of privatisation of healthcare. Public health services introduced and expanded the user-fee system to such an extent that the poor today have to pay for hospital beds, drugs, the food in the hospital, bandages, injections, drips and diagnostic tests. Very often they have had to pay just to enter the hospital. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |447 CHAPTER TWENTY

So treacherous has been the central government and indeed all the state governments that it can be safely said that the right to healthcare − declared by the Supreme Court in Paschim Banga Khet Majdoor Samity vs State of West Bengal [(1996.4.SCC.37)] and Consumer Education and Research Centre vs Union of India [(1995.3.SCC.42)] − is illusory and unattainable and exists, as we Indians say, only on paper. And despite the victories that HRLN advocates have had in courts, I would not hesitate to say that Judiciary has overwhelmingly and universally let down the people of India on the issue of the Fundamental Right to free public healthcare. Hundreds of cases were reported throughout the country where poor women, many of them in labour, were turned away from reputed government hospitals because they could not pay the hospital fee. We did a case of Sushila Kumari, a Dalit, who was refused entry into a government hospital at Banda in Uttar Pradesh and delivered her baby on the pavement. A writ petition was fi led in the Allahabad High Court for punishment of the hospital offi cials and for compensation. I saw the little child a few months later and if there ever was a child of God, this was it! One would need all of the Almighty’s protection to live after being born in circumstances as the poor are in this country. Most of the women affected are Dalits, Tribals and minorities. Closer to our offi ce, our team worked for Laxmi Mandal, a woman who carried a dead fetus in her womb for days while she went from one government hospital to another in the capital city of Delhi and was turned away and treated with disrespect even as it was obvious to the hospital doctors that she was suffering from septicemia and was likely to die. This is the brutal country. Globalisa- tion has eroded the right to a life of dignity. Healthcare has become a thriving business. Ministers are more interested in handing over government land and facilities to private hospitals for commercial gain rather than for looking after the health needs of the working people. I have no doubt, realising that 80 percent of the poor get their health services from the private sector because the public sector has become bankrupt, that the working people will one day rise in an insurrection against capitalism and all it represents. Nowhere do they suffer as much as they do in the denial of health facilities. It may well be one of the main reasons for revolution in this country. At a later stage, came the intervention in the child marriage cases. The experience here showed the steep decline in social values after Independence. Pioneering work against child marriage by socio-reform religious movements such as the Brahmo Samaj and Arya Samaj in 1860 and by Ishwar Chandra Vidyasagar and Raja Ram Mohan Roy, played an important role in infl uencing the prohibition of intercourse with a wife who is below 10 years of age. In 1886, Behramji Malbari, a Parsi reformer, succeeded in getting the British to ban Hindu Infant Marriage. In 1927, the minimum age of marriage was proclaimed to be 12 and 14 years for girls and boys respectively. The Child Marriage Restraint Act came into force in 1929 as a result of the consistent efforts of an eminent social reformer, Harvilas Sharda, after whom the Sharda Act was named and the minimum age of marriage was raised to 18 for girls and 21 for boys. Subsequent work, in this fi eld, was done by social reformers like Dayanand Saraswati and Mahatma Gandhi. Despite the fact that the fi rst voice, against this evil practice, was raised nearly one-and-a-half centuries back, it is still in practice in India today. The writ petition, fi led in the Supreme Court, by HRLN, on behalf of the Forum for Fact Finding, Documentation and Advocacy, pleaded, and this is an accepted fact, that child marriages were being “celebrated” on a very large-scale particularly during Hindu festivals such as Ram Nava- |448 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS mi, Akshaya Tritiya, Karma Jayanti, Basant Panchami and Teej. More alarming was the fact that offi cials justifi ed the continuation of this evil practice on the basis of customs and traditions. In the petition, numerous instances are cited where policemen, district offi cials and even ministers have attended child marriage celebrations where hundreds of “couples” are married off together and these offi cials have been photographed offering blessings to them. With more than half the girls in this country marrying before they become adults it is no wonder that about 10 percent of the child births are by adolescent girls. These adolescents contribute to the very high maternal mortality and morbidity, the high rates of anemia, foetal wastage, miscarriage and still-births and propensity to spontaneous abortions. These girls are denied education. This case is now pending in the Supreme Court and orders have been made for the collectors, and the superintendents of police in the districts, to ensure that child marriages do not take place. There has been a noticeable drop in public celebrations but it is possible that child marriages have merely gone underground. In this regard, India seems to be far behind its neighbour Sri Lanka that has succeeded − through expanded education, nutrition and legislation − to increase the age of marriage substantially. The abortion cases, brought to the courts, highlight the terrible abortion situation in the country. Eighteen percent of women in India die during child birth as safe abortion facilities are not available. Ninety percent of the six million induced abortions are illegally provided in unregistered clinics or by uncertifi ed medical staff. The general attitude of men in Indian society, which is also refl ected in the attitude of the State, is that they could not care less if women bled to death. In our scheme of things, women are at a distinct disadvantage and are placed lower than animals in the social hierarchy. Niketa Mehta’s case showed how obsolete the Medical Termination of Pregnancy (MTP) Act, 1971 has become. The provisions are fairly liberal upto the twentieth week of pregnancy. After that abortions are permitted only if they are “immediately necessary to save the life of the pregnant woman.” This cut-off period was introduced in 1971 presumably because it was considered unsafe for pregnant woman, given the technology available for the performance of abortion, in those days. Now, of course, technology has vastly improved. The Indian law makes no exception for foetal abnormality or for the mental distress and trauma of the pregnant woman. This is in sharp contrast to other Statutes prevailing in Europe. Niketa Mehta was therefore not permitted to abort the foetus. The Bombay High Court made a terrible order. In the meanwhile, Niketa miscarried and the Supreme Court is to hear this case soon. Nothing undermines the reproductive rights of women more than hunger, malnutrition and starvation do. Professor Utsa Patnaik in her March 2007 book − The Republic of Hunger − concluded, “during the years 1998-2003, per capita foodgrains absorption had fallen sharply to levels not seen for the last half century.” Between 1990 and 2007 the annual absorption of foodgrains per head came down “from 177 kg to 155 kg…levels last seen in the initial years of World War II.” She concluded that large sections of rural India “have been already reduced to the nutritional status of Sub-Saharan Africa.” Inspecting National Sample Survey (NSS) data on calorie intake, corresponding to food consumed, she concluded that by the year 2000, seventy percent “of the rural population was below the norm of 2004 calories per day,” meaning that “seven-tenths of

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |449 CHAPTER TWENTY the rural population was in poverty in 1999-2000.” To combat maternal mortality and morbidity arising out of malnutrition the central government introduced the national maternity benefi t scheme (NMBS) providing Rs. 500 to every Below Pov- erty Line woman several weeks before delivery ostensibly so as to enable the woman to buy some food before the delivery of the child. Payments were restricted to the fi rst two pregnancies. In 2007, or thereabouts, the central government introduced the Janani Suraksha Yojana (JSY) to encourage institutional delivery. A seemingly impressive array of incentives were supposed to be paid to doctors, staff and to pregnant women if the deliveries were done at the institutional facilities. The vast majority of Indian women, however, preferred to have their babies at home and resisted institutional delivery. A cursory enquiry will tell you why. Roads are bad, transportation is not available, institutional facilities are often like a house of horrors and, most important, the staff in these facilities treat women with extreme indignity and disrespect. Without seeking to address the real concerns of women, the UPA Government embarked on an ambitious scheme to promote institutional delivery and to penalise women who had their babies at home. Government discontinued the NMBS wrongly linking it up with the JSY and took the stand, when challenged in the Supreme Court, that all that the government had done was to replace the NMBS with a more benefi cial scheme. It was then pointed to the Supreme Court that the schemes operate in different fi elds. Whereas the NMBS is meant to provide nutrition before childbirth, irrespective of where the delivery takes place, the JSY is meant merely to promote institutional delivery. Ultimately, after the intervention of the Supreme Court, orders were made directing the government to continue with both programmes. Thus, NMBS was saved. It must be said, however, that the implementation of the programme is extremely poor in the country and very few Below Poverty Line women are provided with a pittance allowance for the purchase of food. HRLN then did a series of cases in various High Courts and in the Supreme Court of India on the violence unleashed against women when they chose to exercise their right of choice. Young women were savagely attacked all across the country when they became romantically involved with boys outside their community, caste or religion. Many died in what are known as “honour killings.” The most barbaric of these were the “acid attacks” where men threw acid on women, particularly on their faces, after being rejected. This left the women permanently scarred physically and emotionally. Prosecution, of these offences, was generally done under the “causing grievous hurt” section of the Indian Penal Code. It is only recently that the Karnataka High Court has held that the offence is an “attempt to murder,” which carries the life sentence. This issue is now pending in the Supreme Court. All in all, our limited experience has taught us that there is tremendous potential for Public Interest Litigation work on reproductive rights issues. The situation is so appalling and women are treated so badly that even the most conservative judge cannot help but make an order to help the petitioner. It would, of course, help enormously if the Supreme Court were to, in an appropriate case, make a holistic order conceptually dealing with reproductive rights and situating them within the ambit of Article 21 – the Right to Life. We would then have a new branch of constitutional law emerging in the country. In the meanwhile, innovative work can be done to bring practical relief to women particularly in rural areas. |450 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

An array of fascinating writ petitions can be done. Blood and emergency obstetric care facilities are not available in most community health centres (CHC) and many hospitals. The CHCs and the public health centres (PHC) rarely have safe drinking water. Doctors, particularly gynaecologists and anaesthetics other medical staff transferred to rural areas, hang on to their posts in the city and refuse to serve in villages. The conditions in hospitals are visibly below standard. Over- crowded and dirty and devoid of basic equipment they need substantial upgrading. The traditional birth attendants and their vast body of traditional knowledge are being excluded completely in the National Rural Health Mission. Misuse of drugs, such as oxytocin, and the intra-muscular use they are put to for inducing labour is widespread. Non availability of C-section facilities in CHCs is routine. The auxiliary nurse midwife needs to be expanded and trained. The Indian public health standards are required to be enforced so that the norms for ante-natal care, counselling, childbirth and post-natal care are realised. User-fee needs to be abolished. All in all, the struggle for a good quality and free public health system, along the lines of that which exists in Cuba, is what we ultimately aspire for. The globalisation, and the immorality it brings with it, is fundamentally antithetical to such a dream. The forces of globalisation, in the ﬁ eld of healthcare, can be summed up in three words − “subsidiaries are bad.” This new order of capitalism is therefore, oriented to making the poor pay for the services they need. For a country where 70 percent of the population is below a dollar-a-day, paying for health services is well nigh impossible. “Either you buy or you die” says the health minister. This is why people die en masse. At the same time, this principle − of the supremacy of market forces − works admirably for the upper-middle classes. Magniﬁ cent hospitals are built in cities and patients, from all across the world, come to India for professional medical services. For the rich, who can afford to pay, this works well. This is why we see grand hospitals for the rich and a broken–down, dilapidated, ramshackle system for the poor. And our bureaucrats and judges, who never visit public facilities, haven’t the foggiest idea about how the people live.

–May 2009

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |451 LEGAL AWARENESS ON THE ISSUE OF DISABILITY RIGHTS NEEDED

olding workshops with the disability activists across the country on the Persons with Dis- abilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, I was Hstruck by how little the disability sector, government offi cials lawyers and even judges knew of the provisions of the Act. Ten years after its enactment, it was hardly implemented anywhere. The commissioners appointed under the Act were never from the disability sector. They were invariably holding a substantial post elsewhere and paid attention to their statutory duties under the Act in a cursory fashion. State wide schemes that are mandatorily required to be framed do not exist in a single state. The three percent reservation in employment and education was but forgotten until a public interest petition was fi led in the Supreme Court. It was only thereafter that the identifi cation of the posts began – nine years after the Statute was enacted. The Act contains very powerful provisions for free education of the disabled children requiring the state to provide them with free transportation, books and the like. The State Policy dictates the main streaming of children. But nowhere is the Act being implemented. In the rural areas, the condition of disabled children is most pathetic. And though mainstreaming is talked of, the public schools do not have sign language interpreters or facilities for the blind and autistic and even the facilities for the locomotor disabled are most primitive. The situation in respect of access is so bad that if one were to visit the Supreme Court, the High Courts of the states, the Reserve Bank of India, the labour commissioner’s offi ces and even the offi ces of the commissioners appointed under the Act, one would fi nd that access has not even been thought of. Cinema halls, public buildings and railway stations continue to be built without access. While the locomotor disabled have agitated for their rights in the recent past and have fi led public interest petitions from time to time, the deaf, blind, autistic and other sectors lag far behind. The deaf are routinely denied driving licences. The authorities are not even willing to look at other countries where the deaf are given licences. At railway station ticket counters, where they struggle to explain themselves, they are often treated as insane, beaten and pushed out of the queue. Even the nation’s capital, Delhi, does not have a sign language interpreter at its over crowded railway station. At the banks, offi cials are most reluctant to allow a deaf person to open an account. For the blind, even elementary devices like auditory signals at crossings have not been introduced anywhere. Crossing the roads in India is a hazardous venture for sighted persons. For the blind, it is a nightmare and newspapers regularly report the knocking down of blind persons

|452 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS by speeding vehicles. Very few Braille presses exist and many that do are obsolete. Hardly any government or NGO offi ce is friendly to the blind. The normally very western oriented airlines recently refused to allow a prominent activist and academic to travel on a plane with his guide dog. After protests, he was reluctantly permitted to travel but the restrictions remained. Why did the Persons with Disabilities Act leave out autism and other disability sectors? Perhaps part of the reason why government offi cials are so callous in their dealing with the disability sector is because the commissioners appointed under the Act are themselves not from this sector. It is inconceivable that institutions for the disabled in the United States or Europe will be run by government offi cials not from the disability sector. But in India, the appointment of a disabled person as a commissioner is the exception to the rule. When a public interest petition was fi led in the Supreme court asking that only disabled persons be appointed as commissioners, it was dismissed out of hand. But compare this with the position in the Scheduled Castes and Scheduled Tribes Commissions and the Womens’ Commissions. Can one imagine the appointment of a man as the Chairperson of the National Commission for Women? What an uproar there would be! Or can any government dare to appoint a non Scheduled Caste person as the Chairperson of the Scheduled Caste Commission? Holding workshops on the law, I was struck by the enormous energy, vibrancy and thirst for knowledge in the disability sector. The meetings held saw people attending from remote parts of the country often travelling for days to reach the venue. The meetings, which invariably began with a recount of the experiences of people, saw the telling of the most tragic tales of suffering and of the indifference of the government. Pronounced was the failure of lawyers to learn from the disability sector and to use their skill to champion their cause. The legal fraternity by and large remained indifferent to the plight of a huge section of people estimated at one-fi fth of the nation’s population. Fortunately, the Judiciary did not share that indifference. Judicial responses were uneven but in many cases judges rose to the occasion interpreting the law in a manner benefi cial to the sector thus doing justice. But only the fi rst steps have been taken. The scope for using the legal system to redress the grievances particularly of the poor is signifi cant. In the years to come, many petitions will be fi led in the High Courts and the Supreme Court for the enforcement of these Fundamental Rights.

–Disability and the Law June 2005

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |453 THE JAMMU & KASHMIR HIGH COURT AND ECONOMIC RIGHTS

he Jammu & Kashmir High Court played an active role after the earthquake which hit the state in October 2005. GM Wani, an advocate practicing in the High Court, fi led a Public TInterest Litigation complaining of inaction by the state authorities in providing relief to the earthquake-affected people of the state. He pointed out, inter alia, that sick and injured persons were being charged certain amounts for ambulance services even though they were not in a position to make these payments. He also complained that airdropping of supplies − including food, drinking water and medical reliefs − was not being done in inaccessible places such Simari, Jabdian, Chatkadi, Tad, Gundi Saidan, Teetwal and Bhadurkoot in Tangdhar. Certain other advocates also intervened to point out that the areas beyond Tangdhar were not being looked after at all. By order dated 14 October 2005, the High Court summoned the heads of various governmental and non-governmental agencies involved in the relief operations and directed the state government to fi le a status report. The High Court was particularly concerned about the 32,000 affected families who were without shelter. Initial directions were given on October 20, 2005 for the free supply of tinsheets and timber for the construction of houses and for the supply of electricity and drinking water to the earthquake-affected areas. A crisis management committee was constituted and directed to act expeditiously. On October 21, 2005, the High Court found that 40,000 houses had collapsed in the affected area and that the whole population had been rendered homeless. The situation was bound to worsen in view of the ensuing winter and the snowfall. A second mass disaster was likely to hit the area if shelter was not provided. Extraordinary steps were needed. The High Court was dissatisfi ed with the suggestions of the crisis management committee, because the committee had not taken a defi nite stand on whether or not the housing materials were to be supplied free of cost. Moreover, there was apparently no time frame within which the State was to act. Observing that “extraordinary steps” had to be taken “at whatever costs” the High Court felt that it could not remain “an idle spectator.” On October 26, 2005, the High Court found the response of the chief secretary of the State falling “short of requirement.” If appointed, members of the Bar Associa- tion were required to visit Uri and Tangdhar. Lawyers, willing to undertake free legal aid work, were to be deployed along with judicial offi cials. On October 29, 2005 the High Court directed the various government agencies “to immediately divert all their stocks and supplies to the affected areas and not to insist on any payment” at that stage. On November 23, 2005, the High Court lamented the fact that the relief package, of Rs. 40,000, was disbursed to only 6,500 out of 10,000

|454 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS families. The Rs. 10,000 package for temporary housing was released to only 3,000 out of 10,000 families. This was, according to the High Court, “not understandable.” In view of this default, the High Court directed that free rations be supplied to the affected families for a few months more. The divisional commissioner, who was supervising relief operations, was transferred. The High Court noticed that some offi cials of the State Legal Services Authority were inactive. Lok Adalats were directed to begin functioning in the affected areas. On December 27, 2005 the High Court recognised that a problem existed in respect of excluded cases where the assessment of the damage was either not done at all or was improperly done. The State issued fresh notifi cation ordering re-assessment in certain cases. The High Court also directed that free rations be continued at least upto January 2006. Further that the kerosene quota, for each ration card, be increased from 6 to 10 litres in the districts of Barah Mullah and Kupwara. The High Court then found that, for some reason, the cheques could not be encashed as a result of which the affected people had not received any cash reliefs. The High Court wanted that the affected people should get cash reliefs, through mobile vans, at their doorstep. Then the High Court was informed that the relief commissioner, Uri Sector, had directed the withholding of all cheques of Rs. 30,000 denomination. This led the High Court to conclude, prima facie, that the relief of Rs. 30,000, offered by the government for temporary housing, had not reached the people. The High Court was also informed that, in 11 villages in the seismic sensitive area, temporary housing was not allowed. The High Court was also informed that the Lok Adalats had given awards involving Rs. 25 crores. The High Court directed that these awards be immediately honoured. The Right to Health services In the case of GM Khan vs State of J&K, the petitioner complained about the violation of the ban on private practice of doctors and of the absence of the government doctors in the government hospitals, dispensaries and health centres. The petitioner further complained that private hospitals and nursing homes were mushrooming without registration or licences as required by the Jammu & Kashmir Nursing Homes and Clinical Establishments Act, 1963. He also pointed out the malpractices by the government doctors. The petition was treated as being one in public interest. The director, health services Kashmir division, was summoned, along with the assistant drugs controller, in view of the complaints that spurious drugs, contrary to the provisions of the Drugs and Cosmetics Act, were being freely sold in the market. The High Court directed the principal secretary, health and the director, health services to furnish details of private hospitals, nursing homes and clinical establishments which were unregistered and to close them down. The offi cials were also directed to inform the High Court about the ir- regularities in the attendance of the government doctors at the district, tehasil and block levels. They were also directed to inform the High Court about the availability of necessary medicines and medical equipments in the government institutions. The High Court was informed that, even though there was a blanket ban on private practice, the ban was violated. The High Court therefore directed the commissioner, vigilance organisations, to inspect and raid premises in order to enforce the ban. Subsequently, a status report was fi led by the government in the High Court. The High Court was KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |455 CHAPTER TWENTY told by the director, health services, Kashmir, who was present in the Court, that most of the district/sub-district hospitals, health centres and dispensaries “were facing shortage of doctors who remain attached to the medical colleges/hospitals in Srinagar.” The government also informed the High Court that “there was one un-registered nursing home and 112 unregistered clinical establishments found in Jammu Division. As against this, 16 unregistered nursing homes and 725 unregistered clinical establishments have been located in Kashmir.” Eight drug establishments were found unlicenced in Jammu Division and 529 in Kashmir. Two hundred clinical establishments were closed down by health department offi cials. The government was also informed about the increasing volume of spurious drug trade going on unchecked in the state. Nevertheless, he had found no spurious drug in the last two years! The drug controller “pleaded his helplessness to deal with the problem because of lack of infrastructure.” He informed the Court that he had closed down 64 out of the 520 unregistered and unlicenced druggists and chemist shops. Going through the provisions of the Nursing and Clinical Establishments (Registration and Li- cencing) Act, 1963, and the Rules framed there under, the High Court found that “there was no worthwhile criteria in place for registration of private hospitals/nursing homes and clinical establishments .” By order dated April 19, 2006 the High Court directed all government doctors to revert to their posts in the district/taluka/block within 10 days. Two hundred vacancies of assistant surgeons were directed to be fi lled in by the Kashmir division. The government was directed to review its criteria and norms for registration of hospitals, nursing homes, clinical establishments and laboratories. It directed the closure of unregistered and unlicenced druggists and chemists throughout the state. It further directed the setting up of an expert committee to deal with the issue of spurious drug trade. It also prohibited the sale of toxic drugs and medicines from a valid prescription-registered medical practitioner and without issuing a voucher to the customer. The Disability cases Javaid Ahmed Tak vs State of J&K is an important public interest petition involving disability rights. It began with a representation made by an NGO called Humanity Welfare Helpline, which complained that specifi c provisions, for disabled persons, were not to be found in the various government schemes and that no attempt had been made to create a barrier-free facility in educational institutions. The Court was informed that no census had been conducted in the state and that the only scheme the state government had was the provision of Rs. 300 as pension per month to 24,000 disabled persons. Another 24,000 disabled persons were registered with the social welfare offi cers but were not being paid “because of lack of fi nances.” The state government conceded, “there is no policy formulated by the Government for the improvement of the conditions of the physically challenged people.” By order dated April 17, 2006 the High Court directed the principal secretary, and the director of the social welfare department and the director of the composite rehabilitation centre, to conduct the census of the disabled persons throughout the state and to ask all disabled persons to register themselves with the social welfare offi ces in the state. The fi nance secretary was directed to provide adequate funds. On September 18, 2006 the High Court observed that “there was no |456 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS worthwhile response from the department heads of the government.” The High Court deprecated the “casualness of government functionaries.” Pursuant to these directions, status reports were fi led. From a perusal of these reports, the High Court found that there were 300,000 disabled persons; 170,000 of them being male. 200,000 visually challenged persons existed; 17,000 speech challenged; 40,000 hearing challenged; 38,000 were locomotor disabled; and 25,000 were suffering from mental illness. Some 2,30,000 handicapped persons were in the rural areas and 72,000 persons in the urban areas. More than 1,81,000 were illiterate and 1,20,000 literate. In Kashmir, only 28,000 persons were getting government assistance. 31,000 cases were pending due to “paucity of funds.” In Jammu Division 42,000 disabled persons were registered out of whom only 30,000 were receiving some sort of fi nancial assistance and 16,000 registered cases were pending due to “paucity of funds.” Thus, only about 20 percent of the disabled population was receiving assistance from the government while 80 percent were left “unattended.” The High Court found “this position quite agonising, if not alarming.” The status report shows that 45 percent disability was a requirement for being eligible for registration and assistance. The High Court found that this percentage was high and that, as a result, “quite a large number of handicapped persons would suffer exclusion from the consideration zone.” The High Court felt that a review of this policy was necessary. The government also informed the High Court that a comprehensive policy, for disabled persons in the state, had been formulated and was pending consideration by the state co-ordination committee. The High Court found the functioning of the composite regional centre for persons with disabilities “quite curious” because very little was known about the centre and concluded that “the centre had not succeeded in creating the requisite impact and awareness of its functioning among the general public.” The High Court then commented on the functioning of the state co-ordination committee and executive committee, which was constituted two years ago, “we fi nd it surprising that neither existence of these committee, is known, nor is there any evidence of their coordinated action leading to formulation of any policy or its implementation on the subject of problems faced by the disabled persons. As a matter of fact, it is a common complaint that the social welfare department has been functioning in isolation and mostly found to be dealing with routine matters without there being any policy or plan of action adopted by it to implement provisions of the PWD Act.” The High Court, fi nding that there were 36,714 highly disabled children in the age group of 6 to 14 years, who did not have access to educational facilities, directed that schools be set up in Srinagar and Jammu for these children. The High Court directed that all cases, pending with the deputy commissioners and chief medical offi cers, be cleared within two weeks. The High Court concluded that the present position, if allowed to continue unchecked and unregulated, would have disastrous consequences for the health and life of general the public. By order December 14, 2006, , the High Court, after perusing the status report fi led and after

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |457 CHAPTER TWENTY questioning the director of composite regional centre at Srinagar, found that over the last six years it had only received a grant of Rs. 2 lakhs as a result of which it was starving for want of infrastructure, equipment and funds. It was also brought to the notice of the High Court that reservation, for the disabled persons in the government service and educational institutions, was not being implemented. The High Court castigated the secretary to government, social welfare department for submit- ting a half-baked report and for staying away from the Court, along with his directors, leaving a matter of public importance unattended. He was then summoned to the High Court. Directions were given for the revival of the composite regional centre. This matter is still pending in the High Court.

|458 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MEDIA: THE STING OPERATIONS

he leading Indian decision, on sting operations by the media, is RK Anand vs Registrar, Delhi High Court reported in 2009.8.SCC.106. New Delhi Television (NDTV) carried out a Tclandestine operation, with a concealed camera, and telecast a programme showing a public prosecutor and a defence counsel negotiating the sell-out of a prosecution lawyer in favour of the defence. One of the initial objections taken was that only a partial transcript of the sting recordings were submitted to the Court. The Court recorded its disapproval of NDTV withholding the full transcript from the Court and characterised its conduct as “quite cavalier and casual.” There are worrying references to the liability of the media in sting operation proceedings, though the Supreme Court ultimately relies on the recordings produced by NDTV to hold that the charge of criminal contempt was made out against the advocate. The Supreme Court found it “inexplicable” that the High Court “did not put NDTV in the array of contemnors.” The Supreme Court suggested that, if the accused were to take the stand that the recordings were fake and if the TV channel “failed to establish the genuineness,” NDTV “would have been equally guilty, if not more, of serious contempt of court and other criminal offences.” Thus it is very important, for the media, to keep a meticulous record of its programmes and CDs so that allegations − that the recordings are not genuine − are not leveled. Interestingly, as the Supreme Court itself noticed, though NDTV played a historical role in exposing the corruption in the legal system, “NDTV came under heavy attack practically from all sides.” The advocates called the sting programme “malicious and motivated” and claimed that they had been defamed. Their questioned the “propriety of the stings and the repeated telecast” when the matter was pending trial. They submitted, to the Court, that the sting operations were “fraud with highly sinister implications.” They also suggested that “the TV channel should have informed the trial court and obtained its permission.” They said that “it was the duty of the TV Channel to place the sting materials before the Court before telecasting any programme.” It was even suggested that “NDTV was equally guilty of contempt of Court” and “trial by media.” It was submitted that, in our system of law, “there was no place for trial by media in a sub-judice matter. The Supreme Court disagreed with the submission that stings can only be carried out after taking the permission of the Court. “The idea appears to be quite repugnant both from the points of view of the Court and the media,” as such a course will result in the media “acting as some of sort of special vigilance agency for the Court. Such course would also amount to “pre-censorship of reporting of court proceedings.” Such a requirement would result in the “infraction of the media’s right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. The Supreme Court also disagreed with the submission that a sting programme was essen-

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |459 CHAPTER TWENTY tially “trial by media.” The latter phrase relates to media coverage which creates “a widespread perception of guilt” and which not only makes a fair trial “nearly impossible” but also results in the accused being held guilty in the public perception. The sting programme, on the other hand, showed people trying to subvert a trial and exposed the sorry state of affairs of criminal administration in the country. There was nothing in the sting operation which suggested that the accused were guilty. The Supreme Court also disagreed with the submission that the sting operation tended to interfere with the administration of justice in that particular case. On the contrary, the NDTV programme showed that there was a conspiracy to undermine the trial. The programme “proved to be substantially true and accurate.” It was intended to “prevent” the obstruction of justice. The Supreme Court went on to outline “excessive in the telecast” and “a number of statements and remarks which are actually incorrect and misleading.” Additionally, the Supreme Court found “stridency” a sad feature of the broadcast. Although it was justiﬁ ably “sensational” in the beginning, “the programme never regained poise and it became more and more shrill.” The Court also found that NDTV’s “disclosure before the Court do [sic] not appear to be completely open, full and frank.” Nevertheless, it concluded by saying that NDTV had “rendered valuable service to the important public cause to protect and salvage the purity of the course of justice.” The Supreme Court appreciated the professional initiative and courage of Poonam Aggarwal and the painstaking investigation undertaken by NDTV The electronic media ranges “from very good to unspeakably bad.” Moreover, private TV channels experience the “inherent dilemma to reconcile its business interests with a higher standards of professionalism.” Media trips, mostly on television rating points, when commercial considerations “assume dominance over higher standards of professionalism.”

–Written in 2009

|460 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation CRITIQUE HM SEERVAI ON JINNAH

he author of the Constitutional Law of India and the former Attorney General of India has provided an interesting account of Mohd. Ali Jinnah’s role in the Partition of India. According Tto Seervai, the picture painted of Jinnah − as being the person who brought about Partition on account of disappointed ambition, vanity and intransigence − is contrary to the material available for scholars of history. Seervai describes Nehru as being arrogant and imperious and shows Gandhi as being indifferent to the demands of the Muslims. Seervai also suggests that Gandhi was the person who introduced religion into politics with disastrous consequences. Jinnah joined the Congress in 1906. He was hailed as the ambassador of Hindu-Muslim unity after the 1916 Lucknow Pact where the Muslim League and the Congress agreed to jointly ﬁ ght against the British and agreed to separate electorates for Muslims with weightage in excess of the numerical strength. In 1914, Annie Besant started the Home Rule League. The Bombay Branch had Jinnah as its president. In 1920, Gandhi was made president of the League but Annie Besant resigned because politics had become “intertwined with religion.” Gandhi had begun a subtle introduction of religion into politics as his ascetic image had begun to appeal to Hindu religious sentiment. This technique − to arouse political consciousness − was understandable. But there was a price to pay. Gandhi’s support for the Khilafat Movement- essentially a religious movement -saw Jinnah cautioning Gandhi not to encourage Muslims fanaticism. Years later, in a meeting with Richard Casey, Governor of Bengal, Gandhi told Casey that Jinnah had warned him “that it was a crime to mix up politics and religion in the way he had done.” But Gandhi was not to be deterred. Writing in Young India he boasted: “I ensure the safety of the cow, that is my religion, from the Mussalman’s knife.” In 1925, the all-party conference appointed a committee, headed by Nehru, to frame the Consti- tution. The Nehru Report rejected separate electorates for Muslims. The Muslim League wanted that and also demanded that residuary powers be given to the provinces as they saw a federal form of government as more appropriate for India. Jinnah pleaded that these amendments be accepted to avoid “revolution and civil war.” They were rejected. Jinnah said to a friend: “this is a parting of ways.” Then when the British announced the Communal Award, providing for separate electorates and reservation of seats for both Muslims and depressed classes, Gandhi announced a fast unto

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |461 CHAPTER TWENTY death which was withdrawn after Dr BR Ambedkar intervened and the Poona Pact was arrived at under which there was reservation of seats for depressed classes but with joint electorates. In the elections to the provincial legislatures, under the Government of India Act, 1935, out of 485 Muslim seats the Muslim League won only 108. The Congress ministries were formed in eight provinces. Then the Congress decided, in a historically disastrous move, not to form a coalition with the Muslims. A serious situation arose. In the United Province the Congress contested nine out of 66 Muslim seats and lost all. In Bombay, Congress contested, two out of 30 and lost both. The backlash had begun. In his autobiography, India Wins Freedom, Maulana Abdul Kalam Azad, president of the Congress 1939-46, wrote: “if the League’s offer of cooperation was accepted the Muslim League would have merged with the Congress...” But Azad’s recommendation was rejected by Nehru who said that no Muslim should be admitted into the cabinet unless he joins the Congress because he wanted the cabinet to be homogeneous. In his biography of Nehru, Brecher wrote: “the Congress adopted an imperious attitude.” In March 1937, Nehru remarked “there are only two forces in India today, British imperialism and Indian nationalism.” Jinnah was quick to retort “No, there is a third party, the Mussalman.” His- tory was to bear him out. Yet even as late as 1937, Shiva Rao wrote that Jinnah was not thinking of a separate State of Pakistan. In 1945, VP Menon wrote: “upto 1935 Muslims were under the impression that their interest would be safeguarded if they get adequate representations in the legislatures. Thanks to the Congress policy of excluding all the other parties from the provincial executives the minorities learnt that the majority party could set at naught the wishes of the minorities and that their representatives in the legislatures would not be a sufﬁ cient safeguards. This was the real motive behind Jinnah’s cry for Pakistan. Exclusion from the share in the power was the real foundation. The cry for Pakistan was more vociferous in the provinces in which the Muslims are in a minority than in the majority Muslim provinces...” The Congress then began a search for a solution. The Desai - Liaquat Ali Pact and the Sapru Committee suggested the formation of coalition ministries at the Centre. This was turned down. Then it was Azad’s turn to fail in 1945. Accepting that the Muslim fears were genuine and must be removed he suggested, to Gandhi in a letter, that the Constitution must be federal, units must be given the right to secede, there should be joint electorates with reservation of seats and there ought to be parity between Muslims and Hindus in the legislature and the Central Executive “until communal suspicion disappears.” Gandhi replied “my opinion differs from yours.” Bhulabhai Desai and Tej Bahadur Sapru, prominent lawyers, also pleaded in vain. As a result of the Congress attitude, in the 1945 Central Legislature Assembly elections, the League won every Muslim seat and the Congress Muslims lost every seat forfeiting their deposits in many cases. The Congress overlooked the fact that though 200 million Hindus were arithmetically not equal to 90 million Muslims, arithmetic had no place in the framing of a constitution. Some sort of meaningful parity was to be worked out. Nehru rejected this while Gandhi made no practical

|462 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS attempt to ﬁ nd a solution. Wavell said, “Gandhi seemed quite unmoved at a prospect of a civil war. Even after the Muslim League call for direct action the Calcutta killings and the boycott of the Constituent Assembly, in 1946 Gandhi did not budge.” All the rest is history. Wavell who, according to Seervai, tried repeatedly to get the Congress to accommodate the Muslim League for a uniﬁ ed India was sacked. The Congress began planning for the partition of India. Azad opposed the Mountbatten plan saying, “I warned Jawaharlal that history would never forgive us if we agreed to partition. The verdict would be that the country was divided as much by the Muslim League as by the Congress.” Gandhi, who had previously said that partition would come to India over his dead body, advised that circumstances had arisen which made partition unavoidable. Jinnah left India with an appeal to both Hindus and Muslims to bury the past and wished India success and prosperity. The next day Patel said at Delhi “the poison has been removed from the body of India. We are now one and indivisible.” By July 1947, East Bengal, West Punjab, Sind, Baluchistan and the North West Frontier Prov- ince voted for Pakistan. More than 600,000 lives were lost and 14 million people experienced a painful migration.

–The Indian Express 2005

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |463 INTEGRATION OF INTERNATIONAL REFUGEE CONVENTIONS IN INDIAN LAW

here is a common misconception that ratifi ed International Conventions are not enforceable in Indian courts unless a statue is enacted. This misconception is based on the American Tand English position without taking into consideration the specifi cities of the Indian Con- stitution. The clearest discussion on this issue is found in Maganbhai Ishwalal Patel vs Union of India (AIR.1969.SC.783). “Making of law... Is necessary when a Treaty or Agreement operates to restrict the rights of citizens or others or modifi es the laws of the State. If the rights of the citizens or others which are justifi able are not affected, no legislative measure is needed to give effect to the Agreement or Treaty.” Justice Shan relied on Article 73 (1) of the Constitution: “subject to the provisions of this Constitution, the Executive Power of the Union shall extend. [a] to the matters with respect to which Parliament has power to make laws; and [b] to the exercise of such rights, authority and jurisdiction as are exercisable by the Gov- ernment of India by virtue of any Treaty or Agreement.” He also relied on Article 253: “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any Treaty, Agreement to Convention with any other country or countries or any decision made at any international conference, association or other body.” The common misconception is that Article 253 − which empowers Parliament to make laws for the implementation of a Treaty, Agreement, or Convention − necessarily implies that, unless such a Statute is enacted, the Treaty, Agreement or Convention cannot be enforced. Justice Shah rejected this argument saying that it proceeded upon a misreading of Article 253. While the Article conferred upon Parliament a certain power, it did not seek to circumscribe the extent of the power conferred by Article 73. “Our Constitution makes no provision making legislation as a condition of entering into an international Treaty either in times of war or peace. The Executive is qua the State competent to represent the State in all matters international and may by an Agreement, Convention or Treaties incur obligations which in international law are binding upon the State.” The decision of the Court is therefore to the effect that if an international instrument adds to

|464 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS the rights of citizens it is enforceable directly, but if it restricts the existing rights of citizens, it requires, for its enforcement, the enactment of a Statute. Maganbhai’s case was a case in point where the State had exercised its powers under Article 173 by entering into an international agreement with the Government of Pakistan. A writ petition was fi led against the Government of India seeking to restrain the government from acting upon those agreements and from ceding certain areas to Pakistan without the approval of Parliament. In Gramophone Company of India Limited vs Birendra Pandey,1 Chinnappa Reddy J. speaking for the Court held : “There can be no question that nations must march with the international community and the municipal law must respect rules of international law just as nations respect Interna- tional Conventions. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do no run into confl ict with Acts of Parliament.” The position is thus quite clear. If an International Convention runs counter to an Indian Statute, the Convention cannot be relied upon. If, however, the Convention does not confl ict with an Indian law, then the international law must be accommodated and absorbed into Indian law. The sanction for this lies in Article 51 (c) of the Constitution. Article 51 (c) states: “The State shall endeavour (c) to foster respect for international law and Treaty obligations in the dealings of organised people with one another; Chinnappa Reddy J. relied on the decision of Lord Denning in West Rand Central Gold Mining Company vs The King.2 “It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and complied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant.” This proposition was also advanced by Lord Latham Chief Justice in Politics vs The Common- wealth3 where he held that, in a case where international law confl icts with national law, the former must yield to the latter. The main task, however, is to interpret Statutes, as far as the language admits, not to be inconsistent with international law. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but whether in fact it has actually done so. This was stated in almost similar language by the Supreme Court of India in Tractor Export vs Tarapore & Co.4

1 AIR 1984 SC 667, No.2]. 2 (1905) 2 KB 391. 3 70 Common Wealth LR 60. 4 (1970) 3 SCR 53. KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |465 CHAPTER TWENTY

What, however, would be the position if the International Covenant was not ratifi ed? It is possible to argue is that, even if a Treaty or Convention or Resolution is not ratifi ed or agreed to by India, courts are still at liberty, provided there exists no Indian law to the contrary, to incorporate these Conventions, Treaties and Resolutions into Indian law and thereby enforce them. In People’s Union for Civil Liberties vs Union of India5 the Supreme Court held: “The provisions of the Convention which elucidate and go to effectuate the Fundamental Rights guaranteed by our Constitution can certainly be relied upon by the courts as facets of those Fundamental Rights and hence enforceable as such.” This is, therefore, a clear enunciation of the principle that, since Fundamental Rights are capable of an ever-expanding defi nition, international instruments may be incorporated into Fundamental Rights and enforced in like manner. This was done by the Supreme Court in the recent case of Vishakha vs State of Rajasthan,6 where the Court reiterated the principles that in the absence of a domestic law occupying the fi eld to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of international Conventions and norms are signifi cant for the purpose of interpretation of the guarantee of gender equality, the right to work with human dignity in Arti- cle 14, 15, 19 [1] [g] and 21 of the Constitution of India. Any International Convention, consistent with the Fundamental Rights and in harmony with its spirit, must be read into these provisions to enlarge the contents thereof. Referring to the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) the Court held: “The International Conventions and norms are to be read into them [Fundamental Rights] in the absence of an enacted domestic law occupying the fi eld when there is no consistency between them.” The Court also approvingly referred to the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs vs Teoh7 where the High Court recognised the concept of legitimate expectation in the context of observance of international law in the absence of a contrary legislative provision and even in the absence of a Bill of Rights in the Australian Constitution. The rights of refugees, in the absence of India’s ratifi cation of the Refugee Convention, is based on India’s claim to abide by the Universal Declaration of Human Rights, Article 14(1) of which states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Also on Article 13 of the International Covenant on Civil and Political Rights: “Also alien unlawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the Competent Authority or a person or persons especially designated by the Competent Authority.”

5 (1997) 3 SCC 433. 6 (1997) 6 SCC 241. 7 250_ICHLR 128 ALR 353 Bulletin on IHL & Refugee Law [Vol.3 No.2]. |466 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS

In addition, Article 22 of the Convention on the Rights of the Child states: “1. State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, State Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such child and to trace the parents or other members of the family or any refugee child in order to obtain information necessary for reuniﬁ cation with his or her family. In case where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reasons, as set forth in the present Convention.” Are these Articles incorporated into Article 21 of the Constitution of India and can they be enforced in Indian courts? The ﬁ rst question is whether any Indian law, which deals with the issue of refugees, exists and if it does exist, does this law run counter to international law? The answer is simple. Neither the Citizens Act, 1995 nor the Foreigners Act, 1946 deal with the issue of refugees. Refugees, as compared to other persons who either enter the country illegally or reside in the country illegally, are distinguishable from others in the sense that they are persons governed by the “doctrine of necessity.” They have been compelled to either enter the country or to reside in the country because of a reasonable fear of persecution. If there exists a “reasonable apprehension” or a “well grounded fear of persecution” or “a clear and present danger,” as in the case National Human Rights Commission vs State of Arunachal Pradesh,8 foreigners would be entitled to the protection of Article 21 of the Constitution. The state government would be required to act impartially and carry out its legal obligations to safeguard the life, health and well being of foreigners. In Khudiram Chakma vs State of Arunachal Pradesh,9 the Supreme Court approvingly referred to the Universal Declaration of Human Rights in the context of a refugee : “Article 14 of the Universal Declaration of Human Rights, which speaks of the right to enjoy asylum, has to be interpreted in the light of the instrument as a whole, and must be taken to mean something. It implies that although an asylum seeker has no right to be granted admission to a foreign State, equally a State which has granted him asylum must not later return him to the country whence he came. Moreover, the Article carries considerable moral authority and embodies the legal prerequisite of regional declarations and instruments.”

8 (1976) 1 SCR 3.742. 9 (1994) Supp (1) SCC 615. 252_ICHLR.

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An unreported judgement of the Supreme Court in, Dr Malavika Karlekar vs Union of India,10 directed the authorities to check whether refugee status ought to be granted and, until the question is decided, not to deport the petitioner. Similar orders were made by the Gauhati High Court.11 Various High Courts have also granted relief to refugees. In exercise of power, under Article 226 of the Constitution read with Article 21, the Gauhati High Court, in the case of U. Myat Kayew and another vs State of Manipur12 and another on 26.11.1991, allowed the petitioners, who had entered India without valid travel documents and who were lodged in Manipur Central Jail, to be released on interim bail on personal bond to enable them to approach the UNHCR, Delhi to seek refugee status. The petitioners had taken part in the Movement for Democracy in Myanmar and had taken shelter in India. They voluntarily surrendered to the authorities and were taken into custody. Cases were registered against them under Section 14 of the Foreigners Act for illegal entry. Cases were registered against them under Section 14 of the Foreigners Act for illegal entry. The Court did not insist on local sureties as the petitioners were foreigners and local sureties would not be easily available. Similar orders were passed by the High Court of Punjab and Haryana.13 Therefore, though India is not party to either the 1951 Convention on the Status of Refugees or the 1967 Protocol, the general principles of international law, relating to refugees, must be taken as incorporated directly into the Indian Constitutional Law via Article 21. This must be done, particularly in view of the fact that India has acceded to the 1996 International Covenant on Civil and Political Rights; the 1966 International Covenant on Economics, Social & Cultural Rights; the 1989 Convention on the Rights of the Child; and the 1979 Convention on the Elimination of All Forms of Discriminations Against Women. No provision − either in the Foreigner’s Act, 1946; or the Registration of Foreigner’s Act, 1939; or the Passport [Entry into India] Act, 1920; or the Passport Act, 1967 − deals, in any manner, with refugee law. There is therefore no domestic law related to refugees that is in conﬂ ict with international Conventions, Treaties and Resolutions. Section 3(1) of the Foreigner’s Act, 1946 does grant an absolute right to the Indian government to expel foreigners from Indian territory. It is not the right, but the exercise of that right, that is in question. This right has to be exercised in a reasonable manner. The reasonableness, in the context of refugees, is to be determined by international refugee law. That is how the various courts have granted relief to refugees in certain circumstances. That is how the Gauhati High Cour,t in the case of Bogyi vs Union of India,14 ordered the temporary release of a Burmese citizen in order that the petitioner could apply for refugee status to the UNCHR. In a special address by the Rajya Sabha Deputy Chairperson Dr Najma Heptulla at a seminar on Refuges in the SAARC Region held in New Delhi in May 1997, the stand taken was that India had not acceded to the 1951 UN Convention on Refugees as well as the 1967 Protocol because the

10 Writ Petition (criminal) 583 of 1992 on 25.9.1992. 11 Civil Rule No.1981 of 1989 & No.515 of 1990 on 11.9.1990. 12 Civil Rule No.516 of 1991. 13 Criminal Writ Petition No.658 of 1997 on 11.9.1997. Bulletin on IHL & Refugee Law [Vol.3, No.2]. 14 Civil Rule No.1847/89 254_ICHLR . |468 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS instruments called for refugees to be given certain facilities in respect of housing and education. A similar excuse was given by Justice Dr Nasim Hassan Shah, former Chief Justice of Pakistan, when he said that Pakistan could ill afford the guarantee of the rights stipulated in the Conven- tion. The economic implications appear to be the main excuse. What both speakers did not understand was that the refugee Convention was a political issue where States had to agree, in principle, to uphold the Fundamental Rights of foreigners ﬂ eeing persecution. Whether, after the grant of asylum, they are housed in slums or ﬁ ve star hotels is a secondary issue. In any case, Indian courts have achieved by judge-made-law what the government was unable or unwilling to do. Today, therefore, it is a possible view, that international refugee law stands fully integrated into Indian law via Article 21 of the Constitution irrespective of the government’s decision not to ac- cede to the Convention and Protocol.

–Bulletin on IHL & Refugee Law 1998

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |469 WTO: IMPACT ON THE ECONOMIC RIGHTS

lobalisation has, in many ways, had a positive impact on people and societies, though it brings with it a downside. The WTO already adversely impacts poor people in developing Gcountries throughout the world and the situation is expected to worsen. As in life, so too in law. The confl icts taking place within civil society, as a result of the WTO regime, are also refl ected in legal proceedings in the Supreme Courts and the Constitutional Courts throughout the democratic world. When the Executive enters into an international agreement, which adds to the rights of citizens, there is no controversy at all. But what would be the legal position when constitutionally protected economic rights, such as the Right to Food and the Right to Health, are negatively impacted on account of international trade agreements entered into by bureaucrats without giving particular attention to the rights of the poor. This is the emerging new frontier of international public law that is likely to take centre-stage in the courts in India in the next few years. How does the WTO and TRIPS adversely impact the poor in India? How does the Agreement on Agriculture affect food security in India? How will the Seeds Bill, recently introduced, impact on the farming community, particularly with respect to self-suffi ciency and sustainability? Is India moving in the direction where farmers throughout will jettison their long-tested traditions of seed harvesting, preservation and sharing and ultimately be dependent on multinational seed corporations for the seeds that they sow? How can the Biodiversity Act be used to protect species and genetic material in India? What are the lacunae in the Act? Is genetically modifi ed food safe? Should India, with its potentially huge capacity to do organic farming and produce organic goods, go the American way of GM foods? Most important, how will the WTO impact on the health of ordinary citizens who are too poor to afford branded drugs at international prices? Should India give up on its long standing tradition of categorising drugs for malaria, fi laria, tuberculosis, diabetes, etc., in the essential list? Should it impose a drug price control regime? Do the citizens not have a right to health? Should the magnifi cent public health system, developed after Independence, be allowed to be privatised and virtually truncated? How will the new patent regime impact on the availability and prices of essential drugs? To answer these questions, and to encourage a discussion on health and the law, leading academics, jurists, health professionals and other experts need to initiate the discussion and also to provide information on how other countries have protected the poor and reaffi rmed the commitments made in their Constitutions on the Right to Life.

|470 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation THE ONGC IN SUDAN

he ONGC is one of the largest investors in Sudan. It has invested over $1 billion, including the construction of a 741 km oil pipeline, in the country since 2002. The TSudanese government, though, is no ordinary business partner. During the North- South Civil War of the 1990s, and more recently the confl ict in Darfur, the government has proved itself one of the most repressive in the world. Indeed, ONGC’s investments have attracted much international criticism for providing needed money to the Sudanese government. These criticisms raise not only moral questions about India’s involvement in the country, but also highlight the political and economic costs of doing business with Sudan. Over half of the Sudanese government’s revenue is derived from oil. The government uses this money to buy arms and fund the Arab militants, it supports in Darfur, to attack the region’s mostly African population. The confl ict is estimated to have killed at least 200,000 people and displaced two million, mostly civilians, since fi ghting began in 2003. The United States, because of its racist and systematic nature, labeled the killing in Darfur as genocide in 2004. Many proponents of peace, because oil revenue insulates Khartoum from international and domestic pressure over Darfur, have criticised ONGC’s, and other foreign oil companies,’ operations in Sudan. Seventeen US states and dozens of universities − such as Columbia, Yale, and the University of California − have divested ties from these companies. That means these pension funds will sell their stocks in oil companies like ONGC and refuse to buy such stocks in the future. Divestment campaigns are also underway in countries such as the United Kingdom (where Cambridge and Oxford are considering divesting) and Australia. China has been heavily criticised for its heavy economic, military and political support of the Sudanese government. As a result, the 2008 Beijing Olympics were recently labeled the “genocide Olympics” and a boycott is being threatened in the west. Further, China’s callousness, while it pumps oil from Sudan and arms the government, over the violence in Darfur, has led many Africans to say that they are being treated like a colony. India’s support of Khartoum has already tarnished its reputation abroad and this support, like China’s, could bring future problems. To take an example, Darfur may be a

KALIYUG: The Decline of Human Rights Law in the Period of Globalisation |471 CHAPTER TWENTY major issue when Delhi hosts the Commonwealth Games in 2010, or in India’s attempts to secure a seat on the Security Council. India’s economic involvement, in Sudan, gives it a unique ability to shape events in Dar- fur. India would play a vital role − if it joined the table with the United States, Europe, the Africa Union, and China − to ensure Sudan accepts the proposed UN peacekeeping force. Khartoum could then be pressed to agree to a longer-lasting political settlement to the crisis. Such a proactive approach, by Delhi, would be best not only for the people of Sudan, but would also help protect India’s energy interests while furthering India’s standing as a global leader.

|472 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation KALIYUG: THE DESCENT INTO DARKNESS

ndia has transited into Kaliyug in the 61st year of the Republic. Surveys of the Union of India as well as expert reports published by the Arjun Sengupta Committee and the NC Saxena ICommittee, reveal that 70 percent of the population is below the poverty line in terms of the food intake minimum standard of 2,400 k calories per person per day, a standard set by the Planning Commission in 1979. Over 50 percent of all women and children are malnourished with 17 percent of the child population is so severely malnourished that a whole new generation of Indians will become adults with malformed brains and stunted growth. Even in the urban areas, where conspicuous consumption is always on display, malnourishment of children is upwards of 50 percent. This is the spectre of starving India. For the top 20 percent of the population − who have experienced during the period of globalisation a licence to loot, corrupt and cheat − this is Satyug. The rich have never had it so good since the beginning of the decline of Nehruvian social democracy in the early nineties and the establishment of what is called the liberal regime. A seismic shift, fueled partly by international capital and the devious planning of the World Bank and the IMF, took place in the thinking of politicians, corporations, administrators and judges. Earlier, and in accordance with the constitutional mandate, the country was to be taken along as a whole, the resources of the State were to be used to serve the common good and a reasonable part of the gross domestic products was to be kept aside to subsidise education, health, food, housing and transportation for the working people. With globalisation all this began to change. Education for all was quickly jettisoned with the argument that it is impossible to educate so many poor children, that is inadvisable and unproductive to spread resources thinly and that, since in any case the middle classes are the engines of change, State resources ought to be concentrated on them if the gross domestic product is to be pushed up. The Supreme Court, in TMA Pai’s case, made a disgraceful decision opening the doors for commercialisation and privatisation of education and casting a shadow on the earlier decision in Unikrishnan’s case correctly providing for strict state regulation and prohibition on commercialisation. Similarly, government public health facilities went into a tailspin, while some of the ﬁ nest health facilities in the world sprung up in the cities of India. The public health centres lacked medicines, doctors, testing equipment, beds and food for poor patients. The World Bank then came along with its prescription for “user fees” requiring people below the poverty line to pay for health services. Dalit women, delivering on the pavements outside government hospitals, became a common sight. Despite the jurisprudential exhortation − that the right to public healthcare, free drugs and indigenously manufactured medicines is a Fundamental Right under Article 21 of the

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Constitution − the rot set in and is too deep to reverse. How does it matter and what effect could it possibly have on the GDP if tens of thousands of poor people suffer ill health or die of malaria or tuberculosis? From the GDP point of view, healthcare for the poor did not matter at all. The shift in ideology, away from social democracy towards what was quaintly called “globalisation,” affected the Judiciary as well. Senior judges, who held the post-Independence emphasis on socialism in derision, used the enormous power of the Judiciary to undermine social policies of the government. They did their best to erode constitutional law protections. The Supreme Court, in the Steel Authority of India Limited case, made it possible for capitalists to convert their entire labour force into contractual labour thus effectively taking away all their protection under labour laws. In Umadevi’s case, persons who were employed and who had been working for decades in permanent work positions on a pittance, were denied regularisation, thus giving a legal cover to slave labour. Environmental jurisprudence, meticulously put in place by Justice Kuldeep Singh and others in the Supreme Court, was systematically dismantled by subsequently appointed judges in the superior courts who had a pro-capitalist bend of mind. They saw environmental law, and environmental activism, as an irritant which hindered the “development” of the country. They, therefore, used the quite dubious doctrine of “sustainable development” in an even more suspect way to allow for all kinds of environmentally destructive industrial activity quite unmindful of its effect on the environment. As a result, India, today, has been devastated. The forests have been cut, the cities are polluted, lush green areas have been mined, the rivers of India have turned into sewage drains and water shortage has become so acute that, in the years to come, social upheavals will centre around this deprivation. The great Indian nation is being turned into a desert. When the Tribals, Dalits, workers, slum dwellers and the dispossessed of this country protested, often feebly, they were met with ﬁ erce repression. Police torture is widespread and has become the principle forensic tool for the investigation of crimes. Nowhere in the world, other than in In- dia, has the police force turned into such an awesome body of criminals in uniform. The average rate of conviction in the country, in cases of atrocities against Dalits, has sunk to one percent. As a result, rape of Dalit women, murder of Dalits, destruction of houses, burning of standing crops, robbing of cattle, destruction of Dalit temples, throwing excreta in wells and untouchability practices − such as the two tumbler system − continue unchecked. Despite the Right to Housing being declared a Fundamental Right, by the Supreme Court in Nawabkhan’s case and although the UPA manifesto speciﬁ cally includes a ban on forced evictions of slums, about a million of the urban poor every year have their homes bulldozed without notice, compensation or rehabilitation to make way for the skyscrapers of the rich. Nothing symbolises the fragmentation of the country more succinctly than the home ministry directed operations of the security forces in the Tribal areas of the Northren states. The Army of the rich − in the guise of going after the Maoists, who purport to be the Army of the poor − loot, pillage and destroy Tribal hamlets much like the American forces did in Vietnam. They have the licence to kill. They are above the law. More worrying is the propaganda that the security forces are out to save the country. Nothing could be further from the truth. Politicians, ministers and

|474 KALIYUG: The Decline of Human Rights Law in the Period of Globalisation MISCELLANEOUS political parties are on the pay roll of mining companies. The military operations are designed to further the interests of these mining companies. Contracts, between the State and these companies, if carefully perused, will show that the mineral wealth of India is being siphoned away for a pittance. A new generation of anti-nationals have established themselves as the protectors of India’s security. This is the period of Kaliyug. The lust for money, that globalisation brought with it, has depleted spirituality, morality, together- ness, comradeship and justice. Only a national uprising will reverse this trend.

–Hard News magazine February 2010

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