A tinge of hope for Soni Sori as SC accepts her plea


By Tariq Abdul Muhaimin1/8/13, Newzfirst

New Delhi – As a temporary relief for the tribal activist Soni Sori, who was languishing in a Raipur jail on charges of aiding Maoists, the Supreme Court on Tuesday accepted her plea and directed the Chhattisgarh government to shift her from Raipur jail to the Central Jail in Jagdalpur.

Soni Sori, a tribal teacher from Chhattisgarh, was jailed on charges of aiding Maoists in October 2011. She has been lodged at the Raipur Central Jail ever since.

Sori had sought a transfer from Raipur jail to Jagdalpur Central jail saying that she would feel more comfortable at Jagdalpur because of the presence of her relatives. The transfer request was also meant to speed up the trial process which was being delayed due to logistical problems.

“It is indeed a positive step. Sori is very happy because her relatives are there”, said Colin Gonsalves, Senior Advocate of Supreme Court who is also representing Soni Sori’s case, while speaking to Newzfirst.

“This is only one relief among the many that we are asking for. Many other issues like custodial torture etc., still need to be addressed in her case”, Supreme Court Advocate Brinda Grover told Newzfirst.

“This ruling will only ensure speedy trial because it will bring her closer to the trial court. The trial was getting delayed because of the difficulty in bringing her to the trial court each time. They do not have enough police escort to take her through such a long distance. It will also give the family easier access to Sori”, she added.

Responding to the Supreme Court order, the Chhattisgarh government told the court that it had no objection in moving her to another prison.

Soni Sori’s story

The tale of Soni Sori is also the tale of every tribal caught between a complex conflict between the Indian State and Maoists in Chhattisgarh. The case of Soni Sori scripts the prevalent paranoia in the name of security, which most often overrides sensitivity towards human dignity, rights and fair jurisprudence.

Soni Sori was a government-employed school teacher at an ashram for tribal children in Jabeli, Dantewada district.  Ironically, she and her family managed to land on the wrong side of both the Maoists and the police.

Sori’s father, Madru Ram, was shot by Maoists on the night of 14 June 2011 when armed and uniformed Maoists stormed Madru Ram’s house in Dantewada’s Bade Bedma village and shot him.

Sori is also the aunt of Lingaram Kodopi, a tribal youth who was arrested from Dantewada on 9 September 2011 on charges of aiding Maoists financially. Kodopi had managed to empower himself by becoming a journalist and working to expose state atrocities against his community.

In an interview to a mainstream magazine prior to her arrest, Soni Sori had said that after the arrest of her nephew, she came all the way to Delhi to expose the truth.

“If laws are there to uphold the truth then I believe in them. I have done nothing wrong. I’m innocent. If today I don’t fight, many adivasis will have to suffer, they will get implicated in false cases, and people will continue to die. As an educated person I want to fight for the truth and I believe that I will get justice”, she had said.

But the cycle of events which unfolded ever since, have further faltered the notion and idea of justice.

Soni Sori’s arrest…

Soni Sori was arrested on 4th October 2011, on charges of acting as an agent between the banned Communist Party of India (Maoist) and the Essar Group, which has mining assets in Chhatisgarh. She was accused of carrying 1.5 million Indian rupees (US $30,000) from the mining company Essar to the insurgents as part of an extortion scheme, and had been wanted by police since the arrest of her nephew Lingaram Kodopi, who was also charged with participation. All three of the accused parties – Soni, CPI (M) and Essar – denied the charges.

After her arrest in Delhi, Soni Sori had pleaded before three judges of the Saket District Court when her transit remand was being heard, that were she to be handed over to the Chhattisgarh police she would definitely be tortured.

In response to petitions filed in Delhi courts, a judge ordered the Chhattisgarh police on 7 October 2011 to take all measures to ensure Soni Sori’s safety in transit. When Sori was produced before a court in Dantewada next day, which was a Saturday, the judge sent her to police custody, but ordered that she be medically examined prior to taking custody and before being produced in the court on Monday.

However, the police failed to produce Sori before the court on Monday claiming that she had suffered serious injuries by falling down in the prison bathroom and had to be immediately admitted in a hospital.

A video captured by a reporter while she was in the hospital, showed her writhing in severe pain on a hospital bed. A medical examination conducted by doctors in the hospital showed “contusions” on her head and “tenderness in her lumbar region” likely to have been caused by “a hard and blunt object”, but observed that there were no visual signs of “bony fractures”.

The medical report also noted black marks on both her middle fingers. Activists suspect that electric shocks administered by the police caused these marks.

The Chhattisgarh police took her to hospitals in Jagdalpur and Raipur later in the week. Remarkably, the medical reports from these hospitals failed to confirm even the observations reported by the doctors in Dantewada. It was in response to this sequence of events that activists and lawyers filed a petition in the Supreme Court of India demanding an independent medical examination, outside the control of Chhattisgarh police.

The Government of Chhattisgarh denied that Sori had been tortured, but on 20th October a bench of Supreme Court comprising of Justices Altamas Kabir, H.L. Dattu and C.K. Prasad granted the petition on grounds that “the injuries sustained by [Soni Sori] do not prima facie appear to be as simple as has been made out to be by the Chhattisgarh police.” The Court further directed the Chhattisgarh government to get Soni Sori treated in the NRS Medical College and Hospital in Kolkata for the injuries she sustained in police custody.

In a letter addressed to the Supreme Court, Sori described the torture she was subjected to by the Superintendent of Police Ankit Garg and demanded to know who is responsible for her condition.

“On the night of 8.10.2011, from 12 midnight to 2:30 am, SP Ankit Garg called me into a room in the police station, gave me electric shocks (current shock), took my clothes off and severely tortured me”, she wrote.

On 2 December, the report submitted by NRS Medical Hospital established that two stones were found in her private parts and rectum, clearly corroborating the veracity of Soni Sori’s charge.

Expressing anguish at the report, a bench of Justices Altamas Kabir and S.S. Nijjar of the Supreme Court sought Chhattisgarh government’s response. It also directed the State government to shift her to Raipur jail after senior counsel Colin Gonsalves told the court that her life was in danger at Jagdalpur prison.

However, since Sori wished to be transferred to Jagdalpur because of the presence of her relatives there, Sori had filed a plea in the Supreme Court asking for a transfer from Raipur jail to the Central jail in Jagdalpur.

“I had asked the SC to keep her in Raipur jail because we felt that there was a possibility of custodial torture at Jagdalpur. However, since Sori feels more comfortable there, we had filed a plea asking for a transfer”, Colin Gonsalves told Newzfirst.

The Chhattisgarh police have a long record of committing human rights abuses and atrocities outside and inside prisons, well documented by human rights organizations such as Peoples Union for Civil Liberties (PUCL), Peoples Union for Democratic Rights (PUDR), Amnesty International and Human Rights Watch.

Sori continues to fight… Activists and Human Rights groups extend support…

On 11 October 2011, Sori began a hunger strike to protest her alleged framing in the payoff case. On 13 October, the National Human Rights Commission announced that it would investigate Sori’s allegations of torture.

In January 2012, Human Rights Watch called on Prime Minister Manmohan Singh to launch an independent probe, criticizing the failure of the Chhattisgarh government to begin an investigation and the lack of inquiries by the national government.

On Republic day 2012, Ankit Garg was awarded the Police Medal for Gallantry for his role in a controversial 2010 raid on Maoist rebels. Several human rights groups across India criticized the award citing Sori’s case.

“Is this an award for ruthlessly torturing people? Does the government approve of these methods?” they asked. A police spokesman responded by saying that the Sori case was a separate matter.

Amnesty International stated that it considered Sori a prisoner of conscience, imprisoned for her critique of human rights violations by both Maoist rebels and Indian state forces. On International Women’s Day 2012 (8 March), it launched a campaign calling for her unconditional release and an investigation into her torture allegations.

A group of 250 activists and intellectuals also wrote to Prime Minister Manmohan Singh on 30 April, expressing concern over Sori’s “rapidly deteriorating” condition in prison and demanding that she receives immediate medical attention.

Sori was transferred to All India Institute of Medical Sciences (AIIMS) on 10 May for treatment. She was found to be suffering from severe blisters in her genital area, and a government inquiry was instituted to learn why the hospital had initially refused her.

Sori’s case, a troubling flashpoint for our nation…

The case of Soni Sori is a troubling flash point for all the undemocratic events plaguing our nation today.

Today the cogwheels of Indian democracy are stuck in a quagmire of State sponsored violence. The ‘red corridor’, which the Government terms as the ‘greatest internal security threat’, suffers from violence of abject poverty, the violence of hunger, the multilayered violence of exclusion and inclusion, the violence of co-option, the violence of ‘rapacious’ development schemes which favor the rich corporations and systematically annihilate the poorest of poor.

 


kracktivist:

Honey singh, you are screaming your name, and for five years you were silent taking all mielage now yous ay its not yours wah re wah !!

Originally posted on The Zeest ::.. Official Zeest Band's Blog:

“BALATKARI” & “Ch**t” are not Zeest Songs!

Please refer to our previous post ‘To Clarify Some Rumors…!’ dated January, 19th 2008, where we had already clarified that:

  • Songs like GMD, XL ki Kudiyan or Balatkari don’t belongs to us. Kindly give credit to the actual artists.
  • Zeest don’t do only swear/slang words songs. You can’t judge any artist from only one song. The purpose of our song BC Sutta is not swearing at all… Please don’t predict what the rest of our music will be like.

So far, The Zeest Band has released only two songs i.e. “BC Sutta (Sutta na mila)” & “100 Rupai” both are registered under US Copyright. While, we have a very unique style of songwriting mostly based on the youth and social issues.

 Now it’s very surprising to see that while facing some criticism, a well-known bollywood filmmaker Mr. Anurag Kashyap, who…

View original 172 more words

SC stays Bombay High Court order charging Vedanta Aluminium


Jan 9, ET

MUMBAI: The Supreme Court has put on hold aBombay High Court order asking Anil Agarwal-controlled Vedanta Aluminium Ltd (VAL) to deposit Rs 187 crore with it as security in an arbitration case involving a Chinese firm.

A two-judge bench on Tuesday granted the stay on a special leave petition (SLP) filed by Vedanta Aluminum, India‘s largest aluminium maker. Power equipment manufacturer Shenzen Shandong Nuclear Power Construction Co (SSNPCC) has alleged that Vedanta caused it losses by stopping work at its controversial alumina refinery at Lanjigarh, Odisha.

The court also gave SSNPCC four weeks’ time to file its reply.

Based on a plea filed by SSNPCC, the high court in December had asked Vedanta to deposit the security amount till the arbitration proceedings were concluded.

SSNPCC had filed an arbitration plea early last year to recover its dues from Vedanta, which was forced to shut down its alumina plant at Langigarh after the environment ministry denied it permission to mine bauxite from the Niyamgiri hills.

As per the plea, Vedanta had placed an order with SSNPCC in 2008 for setting up co-generation units for the Lanjigarh project on a turnkey basis. Following the environment ministry order, Vedanta directed Shandong to “suspend all construction activities” at the site.

 

Pakistani band upset with Anurag for wrongly crediting song -Balatkari by Honey Singh ? #hiphop


By , TNN | Jan 9, 2013, 12.00 AM IST

1
Singer Honey Singh got a lot of flak recently when the song Balatkari was credited to him. People on social networking sites and artistes from the music fraternity had vented their anger on the issue. However, the singer denied that the song was his. There were some who chose to defend the singer, one of them being director Anurag Kashyap. The director’s tweet on a microblogging site read: ‘@ankash1009: Balatkari song is by Zeest.’

Zeest, a Pakistani rock band spearheaded by Saqib Abdullah aka Skip, is known for its songs like Sutta and 100 Rupai. Upset with the comment made by Anurag, the band’s communication manager, Sohail Abdullah, said, “I don’t know why he said it was our song. I would like to clarify that Zeest has never composed such a song and we have nothing to do with it. Moreover, we don’t even know who had composed it. Zeest has so far released only two songs, Sutta (Sutta Na Mila) and 100 Rupai.”

He also went on to clarify that in 2008, Saqib posted on his blog that ‘Songs like GMD, XL Ki Kudiyan or Balatkari don’t belong to us. Kindly give credit to the actual artistes.’ Anurag remained unavailable for comment.

 

#India- Rape jurisprudence has hardly changed over the past two decades #Vaw


 

 #India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw  #Justice #mustread

COVER STORY, Distressing Chronicle

Frontline Volume 30 – Issue 01 :: Jan. 12-25, 2013

On December 17, Additional Sessions Judge-01 (North), Tis Hazari Courts, Delhi, Savita Rao, pronounced an order in a rape case, but it went largely unnoticed amid the angry protests against the brutal gang rape of a girl in a moving bus the previous night. In her order in State vs Tarkeshwar Yadav & Ors, the judge made scathing comments against the government for giving the nod to withdraw prosecution against the accused.

The case was that the accused had attempted to rape his landlady. The judge was not convinced by the prosecution’s suggestion to withdraw the case in the public interest. The judge said: “In the instant case, the court is yet to examine the truthfulness of the case of complainant or the pleas of defence, whereas this application has been moved [by the prosecution] in utter disregard of the sacrosanct duty towards the society that no injustice is done.”

The judge brought on record the copy of the letter written by the Additional Public Prosecutor (APP) addressed to the Director of Prosecution. The letter says that the “allegations [against the accused] are serious in nature. The offence attached to are of moral turpitude, as such it is not a case fit for withdrawal as it will be against the interest of society.”

The judge concluded that the APP had sought the withdrawal of the case, as directed by his higher ups, “contrary to his independent opinion…. [R]emote control seems to be in unseen hands of someone in establishment….” The judge dismissed the application for withdrawal and also directed the Chief Secretary, Delhi, to take action against those who recommended it.

There appear to be only a few judges like Judge Savita Rao in the country. Often there is huge pressure on complainants and victims to compromise. In many cases, the state is incapable of resisting this pressure, and this makes the victims and the judicial system vulnerable. Frontline’s examination of a few rape cases suggests gross negligence by appellate courts in resisting such pressures. In Sajina T. vs State of Kerala (2008), the rape survivor alleged that the investigators were more interested in persuading her to agree to a compromise rather than bring the offenders to book. The High Court, however, rejected her plea for a probe by the Central Bureau of Investigation.

In K. Venkateshwarlu vs State of Andhra Pradesh decided by the Supreme Court on August 17, 2012, Justice Ranjana Prakash Desai and Justice Aftab Alam acquitted an accused, who was a police constable, even though the High Court had found him guilty. In her judgment, Justice Ranjana Desai said the needle of suspicion pointed to the appellant because he was a police constable, and in the small village where the incident took place witnesses could be scared to depose against him. She said: “There are certain circumstances which do raise suspicion about the appellant’s involvement in the crime…. The demeanour of Prosecution Witness-2 [the victim], …the tears in her eyes, her walking out of the court after looking at the appellant, pricks the judicial conscience. But convictions cannot be based on suspicion, conjectures and surmises…. For want of legal evidence, we will have to set aside the appellant’s conviction and sentence. But we make it clear that we are doing so only by giving him benefit of doubt.” Was the Supreme Court declaring its helplessness over the prosecution’s failure to present cogent evidence?

In State of Punjab vs Gurmit Singh (1996), the Supreme Court held that while every latitude should be given to the accused to test the veracity of the rape victim’s version, the court must also ensure that cross-examination is not used to harass or humiliate the victim. “A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak, and the silence or a confused stray sentence may be wrongly interpreted as ‘discrepancies and contradictions’,” the court observed.

On August 7 last year, in Rai Sandeep@Deepu vs State of NCT of Delhi, the Supreme Court acquitted the gang-rape accused because of prevaricating statements of the victim in implicating the accused. Thus, according to the victim’s original version, the accused had forcible sexual intercourse one after the other. If that was so, the court said, it was hard to believe that there was no other injury on the private parts of the prosecutrix [victim]. The court found evidence on record that there was only a minor abrasion on the right side of the neck, below the jaw. Should rapes without any evidence of injury to the victim be disbelieved?

In Papuria@Rajesh vs State of Rajasthan, decided on March 2, 1995, Justice V. Palshikar of the Rajasthan High Court acquitted the accused because the statement of the victim—a nine-year-old girl whom the trial court found the accused had ravished—had not been corroborated. The judge ignored the medical evidence that there was injury, her hymen had ruptured and there was some blood oozing. Although the vaginal smear did not point to the presence of semen, the doctor had stated that the injury was due to a blunt object. During cross-examination, the doctor admitted that such injury was also possible if one fell on a hard, blunt object. The judge concluded that the benefit of reasonable doubt should go to the accused.

In Vijay Sood vs State of Himachal Pradesh, delivered on April 27, 2009, Justice Surinder Singh of the Himachal Pradesh High Court reversed the trial court’s conviction of the appellant for rape of the victim on many occasions when the victim was a minor. “Except her own self-serving vague statement, there is no other evidence on record to substantiate her allegation that the accused committed sexual intercourse with her many times against her will,” he held. After finding no corroboration from her mother, a prosecution witness, the judge concluded that the victim’s allegations had not been proved. He concluded that the victim’s testimony did not inspire confidence.

Yad Ram vs State of Rajasthan, decided by Justice Shiv Kumar Sharma and Justice G. Singh of the Rajasthan High Court on February 28, 2008, records the trial court’s proceedings. During cross-examination, the victim was asked in what posture she was raped. She was made to demonstrate it on a bench available in the court. While the victim was being cross-examined, the trial court was a silent spectator and did not control effectively the recording of evidence in the court.

These cases suggest that rape jurisprudence has hardly changed over the past two decades and that it suffers from serious attitudinal aberrations involving judges at all levels.

V. Venkatesan

 

‘Nobody wants to speak or play with me… All are scared of me’ #VAW #WTFnews


Shivani Naik : Mumbai, Wed Jan 09 2013, IE
FP

Introverted, almost painfully shy, Prajakta Sawant is capable of torrents of sudden grumbles when pushed to the wall. That’s precisely where the Mumbai girl sees herself — rightly or wrongly — pushed against the wall, after slapping a court case on national coach P Gopichand and the length and breadth of the system, alleging “mental harassment” and selection bias.

The courts will have their say. But outside, the young doubles player, not more than three years into her seniors international career, finds herself battling a variety of crises.

“Life feels unsettled right now and I don’t really know what I’m going to do,” she says about her limited options. At the Tata Open at Mumbai recently, Sawant, 21, cut a forlorn figure. “Nobody wants to play with me. Everyone’s scared of me. They just don’t talk to me,” she groaned. “My regular partner won’t play with me. So I’m not sure what my next step in my career will be.”

One of the core members of the junior group, having played doubles for the past six years, Prajakta shifted to Gopichand Badminton Academy in Hyderabad three years ago, and had been working on her double’s partnership with Pradnya Gadre and mixed doubles pairing with Pranav Chopda. Earlier this year, she had a fallout with her partners and demanded a change of partners. But she wasn’t granted one.

Meanwhile, Ashwini Ponappa — whose regular partner Jwala Gutta is on a break — opted to play with Gadre, which left Sawant unpaired. Her communication with the coach had progressively deteriorated by this time and a series of mis-steps later, the girl found herself back in Mumbai. Now, she says, some of her former teammates refuse to even nod or smile at her.

Prajakta is convinced returning to singles isn’t particularly viable. “I’ve played doubles for so long, I’d like to continue in it,” she says. There are many who think she needs to stick to doubles. “After Jwala and Ashwini, she’s one of the better young talents. But doubles badminton is always a thin line and you will always be judged as a partnership,” says a senior international doubles shuttler.

Badminton legend Prakash Padukone speaks of the urgent need to resolve the issue. “If this continues to drag, the awkwardness is bound to affect the girl’s career,” he says.

Prajakta now trains in Mumbai with Leroy D’Sa, a respected doubles coach in the city. He might well be the best choice in her troubled times, because he’s a stern mentor who doesn’t beat around the bush. “Doubles needs guidance, and Prajakta will have to work hard from here. But she’s a good player, and I’ll help her through this,” he says.

Prajakta paired up with his son Nigel — primarily a singles player — for the Tata Open mixed doubles as well as the Syed Modi GP Gold in Lucknow.

She’s playing alongside seasoned singles players Trupti Murgunde in doubles, another blessing in disguise, given that Trupti can guide her. “She’s definitely talented and has a good hand and should look at rediscovering her rhythm, develop more strength,” she says.

The duo plan to play a couple of national-ranking tournaments end January in Hyderabad and then Bangalore. “If we’re playing together, we’ll need to practise more,” she says, quietly confident that the two can eke out some success from the partnership.

But finding a long-term partnership will be difficult as the only academy that can boast of a decent number of doubles players is Gopichand’s. “They are all wary of playing with me,” Prajakta says, looking less like a firing cannon who’s taken on the national coach and more like a troubled youngster.

 

Retd IAS’ memoir questions Narendra Modi’s role in Gujarat riots


Published: Wednesday, Jan 9, 2013, 13:03 IST
By DNA Correspondent | Place: Ahmedabad | Agency: DNA

It has been more than a decade, but the ugly chapter in Gujarat’s modern history, which killed many of its people, continues to haunt memories. The post-Godhra communal violence of 2002 has been mentioned by retired IAS officer of Gujarat-cadre Javid Chowdhury in his autobiography titled The insider’s view – Memoirs of a Public Servant, published in 2012.

In 2002, the 1965-batch IAS officer was posted as secretary in Union ministry of health and family welfare in the then NDA government headed by BJP’s Atal Bihari Vajpayee.

The 18th chapter of the book ‘Discharge of Rajdharma? 2002’ recounts how the Narendra Modi government browbeat prime minister Vajpayee’s offer of medical aid for the victims and summarily maintained that the situation was ‘normal’ in state, despite the PM’s information that it was not.

Modi did not allow the then Union health minister to visit Shah Alam relief camp nor did he go there himself, despite explicit orders by the PM to do so. Chowdhury says, the then state health minister, late Ashok Bhatt, threatened to jump out of the moving car if the central minister insisted on visiting the Shah Alam camp.

He also recounts the events and incidents, which bring out in no uncertain terms, the discomfort of the NDA regime at the incidents in Gujarat, particularly Vajpayee, who is already known to have chastised Modi for not following his ‘Rajdharma’.

Over and above highlighting the sequence of events that betray the Modi government’s partisan attitude towards minority community’s victims of violence, Chowdhury lets out a heartfelt lament at the failure of civil servants in the state to discharge their duties towards the Constitution of the country and its people.

On Sunday, former DGP of Gujarat RB Sreekumar wrote a letter to the Nanavati-Mehta Commission and chairman of Special Investigation Team RK Raghavan, highlighting specifics from Chowdhury’s book, which he claims corroborates the many facts cited by him in his nine affidavits and other documents submitted before the Commission.

“The narration (in Chowdhury’s book) would also authenticate the unethical strategy of the state government to suppress facts about the then precarious situation in the state, in order to make the central government and citizens to believe what the state government wanted them to believe,” Sreekumar has said in the letter.

SIT has not considered his affidavits and submissions as evidence in the reports submitted by them, especially in the case of Gulbarg Society where Modi is one of the accused, for want of corroboration of facts.

Chowdhury also recounts a review meeting in Delhi with Vajpayee after the riots, where the PM is distinctly uncomfortable with Modi’s ‘powerpoint presentation’ giving the impression that the situation in Gujarat is normal. In fact, he writes that Vajpayee, in that meeting, categorically disagreed with Modi for shutting down riot camps so soon after the incident as also the very small amount of compensation given to the victims, and was concerned about how they would rebuild their lives.

A defiant Modi argued that extended camps heightened tension and delayed the return to normalcy. “The PM had pushed his point to the maximum. If he pushed it more, there would be an open rift,” Chowdhury has observed. Union home minister LK Advani present in the meeting “did not utter a word. He was reported to be suffering from laryngitis – no one clarified whether it was viral or diplomatic!” the book says.

#Inda- Burying democracy in human waste


January 8, 2013

Prabha Sridevan, The Hindu

Every day that the practice of manual scavenging continues is another day that negates the right to a life of dignity for those still forced to engage in this demeaning work

The Supreme Court had recently admonished a District Magistrate for filing a “wrong” affidavit stating that there was no manual scavenging in his district. Just a day earlier, Union Minister of Rural Development Jairam Ramesh had publicly apologised for the continuance of the practice of manual scavenging. And I thought of a documentary on manual scavenging that has haunted me ever since I saw it.

It is really what is described as an “in your face” documentary. A scene is of a small girl in a blue frock, and with liquid eyes — what in Tamil we would call “Neerottam.” She answers the questions about her experience in school (what I give below is not a verbatim reproduction of the script, but an imperfect one).

“Did you like school?”

“Yes.” (A shy smile)

“What happened?”

“I stopped.”

“Why?”

“I used to sit in the front row. Then my classmates did not want me to sit next to them. So the teacher asked me to move to the last row. I went for some days. Then I stopped.”

This did not happen decades ago, but in this day and age. It must have been a government school. Where else will a poor Bhangi’s child go? Article 17 of the Constitution states: “Untouchability is abolished.” If a government schoolteacher can ask a child to go to the back row because her classmates do not want any contact with her, when was it abolished?

Let us all feel on our skin the sandpaper-rub of exclusion. We are not done with that little girl yet. The camera stays on her face, while she looks back at us. Slowly those deep eyes, which have known a pain that no eight-year-old should, well up with tears and she whispers:

“I wanted to become a nurse or a teacher.”

Fraternity, we promised ourselves; fraternity assuring the dignity of the individual and the unity and integrity of the nation. What does fraternity mean? Dr. Ambedkar said, when the Constitution was in the making, that: “Fraternity means a sense of common brotherhood of all Indians — of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. Castes are anti-national, in the first place, because, they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity, equality and liberty will be no deeper than coats of paint.” The truth must be told, we have not overcome. Why else did the teacher ask that child to sit away from her classmates?

How do we apologise to her for the insult to her dignity, the vandalism of her dreams, and the destruction of her desire? How do we make amends? Can we, in one lifetime, do it? This was a denial of fraternity, a violation of the basic principle of democracy. We, the units of humanity, are interconnected and respect for each other is a sine qua non of all human interactions. There can be no dilution or compromise on this. It is not dependent on who the one is or who the other. This interconnectedness is fraternity — the spirit that assures and affirms human dignity. That is why it is imperative that fraternity informs all State actions and all social transactions. The dynamics between equality and fraternity work like this: in the absence of substantive equality, there will always be groups whose dignity is not acknowledged resulting in a negation of fraternity. Of the five senses, touch is the least understood. But it is the only sense that establishes fraternity that also establishes kinship. A bridge is built when you touch another in kinship in a way that it is not when you look at, talk to or listen to the other. And “a continent of persons” within India has been denied that “touch,” that kinship. It is because we have not understood the principle of fraternity, that there is no “they” and “us,” there is only “us.”

2010 deadline

That young girl of the broken dreams was born to parents who are manual scavengers. This is a group to which the right to fraternity is consistently and brazenly denied, and the most marginalised of marginalised groups. It is acknowledged in public meetings that manual scavenging is a human rights issue and not about sanitation. We read in the newspapers that this practice would soon be banned and that we would become Nirmal Bharat. But it continues. Even if the winds of change are blowing, for the condemned ones even yesterday is not soon enough, any of the yesterdays. There have been many deadlines for eradicating this practice, one such final deadline was March 31, 2010. Deadlines have come and gone. But manual scavengers continue their work, anaesthetising themselves with drinks and drugs from these assaults on their dignity. Their lives are a daily negation of the right to a life with dignity though they have court orders affirming that right.

When a teacher asks a child — like the one whom we met earlier — what her father does for a living, what would she say? “My father carries all your filth on his head?” She probably remains silent. If she speaks those words, her classmates would not see it just as another job. No, it is a job that has to be done by the “other,” so “our” houses “within” will remain clean, and “the other” after cleaning the house will go outside the margin and remain “unclean.” She would be asked to sit away from the rest. So, she is silent.

‘What do you know?’

I once heard at the National Judicial Academy, an excruciatingly painful experience shared by Bezwada Wilson, who campaigns against manual scavenging. He had seen some persons who were manual scavengers, digging in a pile of excreta.

He asked, “What are you doing?”

“The pail has got buried in the filth; we are trying to retrieve it.”

“So you will dig there with your hands?”

“If we do not get it back, we cannot do our job tomorrow, and we will not get paid. What do you know?”

He said, “I walked and walked for a long time out in the fields and I stood there and cried to the moon, I cried to the wind, I cried to the water, I cried and I asked why?”

In his book “The Strange Alchemy of Law and Life,” Justice Albie Sachs of South Africa writes, “There are some things human beings cannot do to other human beings.” He said it in the context of torture; it is just the same in the context of this abomination. The Supreme Court in State of M.P. vs. Ram Krishna Balothia (1995 SCC (3) 221) rejected the attack on the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, saying that a special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes is necessary, in view of the continued violation of their rights. S.3(1)(ii) of this Act says: “Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe —

i. ………

ii. acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste, or a Scheduled Tribe by dumping excreta … in his premises or neighbourhood,” is punishable.

But the work of manually lifting and the removal of human excreta is inextricably linked with caste and is another form of “dumping.”

Mr. Wilson writes in his Foreword to Gita Ramaswamy’s book “India Stinking …” (2005) that, “(A)n estimated 13,00,000 people from dalit communities continue to be employed as manual scavengers across the length and breadth of this country — in private homes, in community dry latrines managed by the municipality, in the public sector such as railways and by the army.” This is why the heart of a little girl who wanted to become a nurse was broken and she dropped out of school. There are some things one human being does not do to another human being.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

#India- Costly push to mega projects


Author(s):
Sugandh Juneja
Issue Date:
2013-1-15

Cabinet Committee for Investment may dilute environmental and forest clearances

DESPITE concerns from civil society groups, the Union Cabinet gave in-principle nod for setting up a Cabinet Committee for Investment (CCI) on December 13. Introduced as the National Investment Board (NIB) by the Union finance ministry earlier this year, CCI is being set up for expediting clearances for mega projects with investment of above Rs 1,000 crore. CCI will be chaired by the prime minister and comprise members from various ministries as decided by him.

Setting up of the committee is in line with the recommendation of the Comptroller and Auditor General of India (CAG), released in May this year, on augmentation of coal production. “There is a need to constitute an empowered group along the lines of Foreign Investment Promotion Board as a single-window mechanism with representatives of Central nodal ministries and state governments to grant the necessary clearances…,” the report says. The idea has been picked up by the finance ministry, which alleges green clearances are holding up the country’s infrastructure development and growth.

An analysis of clearances granted by the Union Ministry of Environment and Forests (MoEF) during the 11th Five Year Plan shows the finance ministry’s allegations do not hold water. The analysis by Delhi-based non-profit Centre for Science and Environment (CSE) shows that the ministry granted many times more environment clearances than planned for the 11th Five Year Plan in key sectors like thermal power, coal and non-coal mining, cement and iron and steel. About 200,000 hectares of forestland was diverted during the period for these sectors. “Where is the question of green clearances holding up growth? MoEF is granting way more clearances than required, disregarding environment and social issues. What is needed is institutional reform in MoEF to make  the clearance process stronger, transparent and accountable. Otherwise, more institutions like CCI will come up and further dilute the process,” says Chandra Bhushan, deputy director of CSE.

JAYANTHI NATARAJAN An investment board will only promote investment, while MoEF has to protect the integrity of environment
JAYANTHI NATARAJAN,
UNION ENVIRONMENT MINISTER

In October, Union environment minister Jayanthi Natarajan wrote to the prime minister expressing concern over setting up of such a body. “When a minister…,” she wrote, “acting upon the expert advice of officers, takes a decision, there is absolutely no justification for an NIB (now CCI) to assume his/her authority, nor will the NIB have the competence to do so.” She also stated that no one has the right to set up a project just in the name of investment. Her concerns, as pointed out in the letter, stem from a fundamental difference between NIB and MoEF: the objective of an investment board will be to promote investment while that of MoEF is to protect the integrity of the environment and protect forests, wildlife and forest-dwellers.

During a discussion in the Lok Sabha in November, K P Dhanapalan, an MP from Kerala, also said that CCI may dilute clearance procedures. “This may aggravate environmental issues and hence needs to be carefully thought through,” he said. During the discussion, Finance Minister P Chidambaram clarified that CCI will only deal with large projects that give a fillip to the economy. “The committee will monitor these projects and will advise the ministries concerned…,” he explained.

P<br />
CHIDAMBARAM” src=”<a href=http://www.downtoearth.org.in/dte/userfiles/images/14_20130115(3).jpg” width=”150″ height=”165″ align=”left” border=”0″ /> Cabinet Committee for Investment will only deal with large projects that give a fillip to the economy
P CHIDAMBARAM,
UNION FINANCE MINISTER

The Federation of Indian Chambers of Commerce and Industry (FICCI) has welcomed CII. “We hope the committee helps the industry get state clearances also in a faster and time-bound manner as maximum clearances are required at the state level,” FICCI president R V Kanoria said in a press release.

Meanwhile, civil society groups are opposing setting up of CCI. Greenpeace and Bengaluru-based non-profit Environment Support Group (ESG) have initiated online campaigns against it. “Setting up of CCI is undemocratic, dangerous and against the national interest,” says Leo Saldahna, coordinator at ESG. Shilpa Chohan, Supreme Court lawyer, says till the time CCI does not overrule the decision of a ministry and is just an administrative body to look into delays, it may prove to be a positive step by bringing together different departments on a single platform.


 

Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996


The Recommendations of National Advisory Council on PESA and Scheduled Area passed on 21 December is provided below and also attached. Also accessible at http://nac.nic.in/pdf/pesa_31dec.pdf
National Advisory Council (NAC)
Recommendations on Panchayat (Extension to the Scheduled Areas) Act, 1996
Summary
The NAC recommendations consists of (1) Amendments to the Act (2) directions by the Union Government to the States and (3) suggestions to the Central Government. These are briefly as follows;
(1) Amendments to PESA 1996:
The proposal seeks to amend and elaborate on the law with a view to strengthen it and rectify some of the weaknesses in the existing law. The proposed amendments in brief, pertain to the following:
i. Providing list of definitions of key terms used in the Act for greater clarity;
ii. constitution of gramsabha at the hamlet level and power to constitute committees;
iii. mandating ‘prior informed consent’ as pre requisite for land acquisition and licensing for minor minerals;
iv. reinforcing the need to align Central and State laws in conformity with PESA;
v. enabling the State government to make rules;
vi. enabling the Centre to issue directions and
vii. provision for grievance redress under the Act.
(2) Directions:
Certain directions on major issues have been proposed to be issued by the Union Government under Proviso 3 of the Fifth Schedule as an interim measure. These need not await amendment to the Act and can be issued immediately for better implementation of the existing law. These pertain to the following areas:-
i. Aligning various laws in conformity with PESA to ensure autonomy of Gram Sabha and Panchayats in Scheduled Areas.
ii. Notification of list of hamlet/habitations to conduct gramsabha under the law
iii. Elaboration on powers of gramsabha to identify beneficiaries, approve plans, conduct social audit and increased accountability of government functionaries.
iv. Prevention of Land Alienation and Restoration of Illegally Alienated Lands.
v. Regulation of intoxicants for storage, manufacture and consumption.
vi. Control over Usurious Money Lending in the Scheduled Areas.
(3) Suggestions to GOI regarding:
i. Inclusion of tribal habitations hitherto not included under the Fifth Schedule.
ii. Central Govt. to expedite law on Provisions of the Municipalities (Extension to Scheduled Areas) Bill.
iii. Constitution of Special Task Force to review functioning of VI Schedule Areas and to suggest appropriate administrative arrangements for V schedule areas.

 1. Proposed amendments to PESA 1996 have been indicated in italics .

THE PROVISIONS OF THE PANCHAYATS (EXTENSION TO THE SCHEDULED AREAS) ACT, 1996 No.40 OF 1996

(24th December, 1996)

An Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.

Be it enacted by Parliament in the Forty-seventh Year of the Republic of India as follows:-

Short title

1. This Act may be called the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

Definition

2. In this Act, unless the context otherwise requires,

a) “Access Rights” means legal, traditional or admitted entitlements of an individual or community to sustainably use community resources and where relevant, enter into a territory defining or containing the resource.

b) “Alienation of land” means dispossession of land of an individual or community following transfer or change of ownership title or possession, or denial of access to land of any nature located within the jurisdiction of the Gram Sabha, whether to a scheduled tribe or to others.

c) “Community resources” include natural resources such as land, surface and ground water, forests, minerals, habitat and others, located within the territorial jurisdiction or the territorial domain of the community as determined by the Gram Sabha, including intellectual, socio-cultural and religious heritage of communities.

d) “Competent Authority” means a person or an institution as provided under the Rules for the purposes of this Act.

e) “Complaint” refers to any representation, whether oral or in writing, made to a competent authority regarding violation of provisions of the Act by a member/s of the Gram Sabha or the Gram Sabha itself.

f) “Cultural identity” is the recognition of an individual, group or community by virtue of belonging to or being part of a community based on a shared ancestry, history, culture, traditions, mores, beliefs, practices and institutions.

g) “Customary law” means traditional common law or rule or practice that sets an intrinsic standard of conduct of members of a community 

h) “Customary mode of dispute resolution” is the system of adjudication adopted by a community which is part of their culture, tradition and custom but not violating the principles of natural justice.

i) “Gram Sabha”, for the purpose of this Act, shall ordinarily comprise of the assembly of the residents of one or more hamlet/habitation, comprising a community and managing its affairs in accordance with traditions and customs within its respective territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as Gram Sabha at the Panchayat level.

j) “Minor forest produce” is as defined under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006.

k) “Minor Minerals” is as defined under Mines and Minerals (Development and Regulation) Act 1957 where the term ‘building stones’ includes stones such as those used for construction of buildings, boundary walls, pavements, platforms, and wells.

l) “Minor water bodies” means any flowing, impounded or sub surface water and includes all water bodies as defined by the concerned State law.

m) “Money lending” means extending loans in any form for interest, with or without collateral, by individuals and institutions and includes informal advances.

n) “Panchayat at appropriate level” means the Gram Panchayat in whose area a particular resource is situated or the next higher tier namely the Intermediate Panchayat/Zilla Parishad if the resource in question is situated in more than one Panchayat or Intermediate Panchayat as the case may be.

o) “Prior Informed consent” means freely given written assent or agreement to permit an occurrence or to permit an act or to allow an occurrence only after a complete disclosure of facts needed to make the reasoned decision free from any coercion or inducement.

p) “Scheduled Area” means the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.

q) “Social sector” means all development and welfare activities and includes inter alia, health, education, water supply, transport, agriculture and allied activities, infrastructure, irrigation, management of natural resources such as water, forest, land, energy, welfare schemes and services, etc. provided by government and non-government entities.

r) “Traditional management practices” means normative systems of resource care and use adopted by a community to ensure beneficial and sustainable use of a community resource by and for all its members. 

s) “Zone of influence” means the geographical area whose social, economic, and/or environmental conditions are significantly affected by changes induced by the proposed project.

3. The provision of Part IX of the Constitution relating to Panchayats are hereby extended to the Scheduled Areas subject to such exceptions and modifications as are provided in section 4.

Exceptions and modifications to part IX of The Constitution

4. Notwithstanding anything contained under Part IX of the Constitution, the Legislature of the State shall enact enabling provisions and rules for effective exercise of the rights, duties and powers of the Gram Sabha as follows, and shall not make any law which is inconsistent with these rights, duties and powers:

(a) a State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources;

(b) the Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets/habitations, managing its affairs in accordance with traditions and customs; such hamlets/habitations for this purpose will be notified in the manner as may be prescribed. The members of the Gram Sabha at the hamlet/habitation level will consist of persons whose names are included in the electoral rolls for the Gram Panchayat.

(c) the geographical access or jurisdiction of a Gram Sabha of the hamlet/habitation shall be deemed to extend to the traditional community resources like forest lands, cultivable fallows, grazing land, waste lands and water bodies that may have been so accepted by communities concerned according to their tradition which shall be demarcated by the Gram Sabha. This shall be recorded as a territorial rights or access rights, as the case may be, by the district revenue authorities and notified by the District Collector as the geographical jurisdiction and/ or access rights of the concerned village.

Provided that disputes concerning boundaries or access rights between neighbouring hamlets/habitations shall be referred to the Panchayat at the appropriate level/ competent authority as may be prescribed under the Rules by the concerned State governments for early settlement, after which the concerned records shall be corrected accordingly.

(d) (i) Gram Sabha at hamlet/habitation level may constitute Standing/ ad-hoc Committees from amongst their members for assisting the Gram Sabha in discharging different responsibilities.

(ii) The members of the Committees shall be chosen from among members of the Gram Sabha preferably by consensus in an open meeting of the Gram Sabha following such procedure as may be prescribed. 

(iii) Any village committee constituted under any statute, executive instruction of government, department or authority shall function under the control and direction of the Gram Sabhas in regard to the functions and areas under their jurisdiction.

(e) every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution;

Provided that any person aggrieved by any decision of the Gram Sabha, or inaction on its part, or irregularity in the conduct of meetings or such like, can bring the matter before the Gram Sabha for review within such time limit as may be prescribed. An appeal shall lie with competent authority in such manner as may be prescribed under rules by the concerned State government. The decision of the appellate Authority shall then be final and binding on the parties and communicated in writing with reasons thereof.

(f) every Gram Sabha is empowered to:

(i) prepare a perspective plan of 5 years based on development needs and determine priorities of works/programmes to be undertaken. This will form the basis for annual plans under various government schemes and programs.

(ii) direct the Government agencies to submit the prioritized list of works/projects to be undertaken to the Gram Panchayat or Panchayats at appropriate level as well as list of beneficiaries as selected by Gram Sabha under various programmes and schemes within the hamlet/habitation to the Gram Sabha for prior approval of the Gram Sabha.

(iii) consider and approve plans, programs and projects for socio-economic development of all Government and Non-Government Agencies before they are taken up for implementation at the hamlet/ habitation level.

(iv) conduct regular social audit of works and programs taken up in the hamlet/habitation by any Panchayat, State or any other agency.

(g) every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds by that Panchayat for the plans, programmes and projects referred to in clause(e);

(h) the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under Part IX of the Constitution;

Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats;

Provided further that all seats of Chairpersons of Panchayats at all levels shall be reserved for the Scheduled Tribes;

(i) the State Government may nominate persons belonging to such Scheduled Tribes as have no representation in the Panchayat at the intermediate level or the Panchayat at the district level:

Provided that such nomination shall not exceed one-tenth of the total members to be elected in that Panchayat;

(j) (i) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level, affected by the proposed project or located in the zone of influence of any land acquisition project, shall be mandatory for the acquisition of any land in the Scheduled Areas for development projects falling within the jurisdiction of the concerned Gram Sabha, irrespective of the classification of land.

(ii) Prior informed consent of the Gram Sabhas and the concerned Panchayats at the appropriate level shall be mandatory regarding the rehabilitation and sustainable livelihood plan for persons affected by projects in the Scheduled Areas.

(iii) The procedure for prior informed consent in (i) and (ii) above and arriving at a decision shall be prescribed by the concerned State government under the Rules.

(iv) All decisions taken by the concerned Gram sabha/s and the concerned Panchayats at the appropriate level, and the decision taken by the Government or the concerned competent authority, with reasons thereof, shall be placed in the public domain by the concerned State Government ;

(v) Full facts about the project for which land is proposed to be acquired, its zone of influence, its economic, social and environmental impact and rehabilitation and sustainable livelihood plans shall be placed before the Gram Sabha while taking the consent of the Gram Sabha and Panchayats at the appropriate level, as the case may be, as provided in the rules.

Provided if at any point of time, it is found that the consent of the Gram Sabha was obtained through fraud, force, concealment, inducement or omission of information, then the Gram Sabhas and Panchayat at the appropriate level have the right to withdraw consent in whole or in parts as the case may be after due inquiry by competent authority in a time bound manner as prescribed under the rules.

(vi) (a) After the consent has been obtained, the acquiring agency shall mandatorily place before the Gram Sabha for its consideration, the progress of the rehabilitation and sustainable livelihood plan after every 3 months from the date of notification for land acquisition. 

(b) Upon the passage of a resolution from majority of the Gram Sabhas and Panchayats at the appropriate level stating that measures for rehabilitation and sustainable livelihood have not been observed as scheduled, the implementation of the project shall be halted, till the required rehabilitation and livelihood activities are completed. The Gram Sabhas shall be entitled to compensation for any damages incurred due to delays in rehabilitation.

(c) No displacement/relocation of the person/s from the project area which is proposed to be acquired shall be undertaken unless all facilities under the rehabilitation package are certified to be complete and functional at the site of resettlement by the Gram Sabha.

(vii) If the Gram Sabha concludes that the land has been used/transferred for purposes other than for which informed consent was sought/ acquired, and such a claim has been verified by a due process, then the Gram Sabha may inform the State Government its decision in writing to withdraw its consent. Where such withdrawal occurs, the residents of the Gram Sabha shall be entitled to civil damages for fraud and to institute criminal proceedings on the same basis.

(viii) The acquired land shall revert back to the Gram sabha in the event that the purpose for which land was acquired is changed or the project is not taken up within five years from the date on which consent is granted.

(k) The concerned Gram Sabha/s, or the appropriate Panchayats if the spread of the water body falls beyond more than one village, as the case may be, are empowered to plan and manage the minor water bodies in their areas.

(l) the prior informed consent of the Gram Sabha, and, if necessary, the Panchayats at the appropriate level depending on the area under consideration shall be made mandatory for any grant of prospecting license or concession for exploitation of minor minerals in any manner;

Provided if at any point of time, it is found that information provided is false or concealed, or is inaccurate, then the Gram Sabhas and Panchayat are at liberty to withdraw consent in whole or in part.

(m) while endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with-

(i) the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant;

(ii) the ownership of minor forest produce;

(iii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;

(iv) the power to manage village markets by whatever name called;

(v) the power to exercise control over money lending and curbing usury to protect the interests of members of Gram Sabhas as provided in the rules;

(vi) the power to exercise control over institutions and functionaries in all social sectors;

(vii) the power to control over local plans and resources for such plans including tribal sub-plans;

(n) the State Legislations that may endow Panchayats with powers and authority as may be necessary to enable them to function as institutions of self-government shall contain safeguards to ensure that Panchayats at the higher level do not assume the powers and authority of any Panchayat at the lower level or of the Gram Sabha;

(o) the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.

Continuance of existing laws on panchayats:

5. Notwithstanding anything in Part IX of the Constitution with exceptions and modifications made by this Act, any provision of any law relating to Panchayats in force in the Scheduled Areas, immediately before the date on which this amendment Act receives the assent of the President, along with extant rules and procedures which are inconsistent with this amended Act, shall be null and void unless brought in conformity before the expiration of one year from the date on which this amendment Act receives assent of the President;

Provided that other extant State subject Acts along with rules and procedures thereunder dealing with subjects covered under this amended Act, shall be null and void to the extent that they contravene this Act, unless brought in conformity within one year of this amendment taking effect.

Provided that Central Acts along with rules and procedures thereunder dealing with such subjects covered under this amended Act or parts thereof not in conformity with provisions of this amended Act, shall be brought in conformity within one year of this amendment taking effect.

6. The Central Government may, from time to time, issue general or special directions to the State Governments in writing for the effective implementation of the various provisions of this Act and the same shall be binding on the State Governments. 

7. The State shall have powers to notify rules for implementation of this Act. These shall be in conformity with Central directions issued, if any, under this Act.

8. Any member of Gram Sabha can complain on a decision or procedure adopted or action taken in violation of the provisions of this Act by the Gram Sabha, a Panchayat, or a government functionary or agency, or non governmental entities or an individual. The manner of inquiry into the complaint and grievance redressal procedure shall be provided under the rules prescribed by the concerned State. 

 

2. Directions to be Issued under Proviso 3 of the Fifth Schedule

I. Aligning State laws with PESA to ensuring autonomy of Gram Sabha in Scheduled Areas

Sec.4 (n) of PESA Act of 1996 requires that the Panchayats function as institutions of self-governance, for which it is necessary to ensure that the Panchayats at the higher level do not assume the powers and authority of any Panchayats at the lower level or the Gram Sabha. The intent of Section 4(n) is to ensure that the Gram Sabha and the Panchayats at the lower level are rendered functional by enabling provisions, appropriate rules, directions and guidelines that will facilitate efficacious exercise of the multiple powers conferred by PESA on the Gram Sabha.

The following are directions to be issued under Proviso 3 of the Fifth Schedule

1. All provisions in the State legislations, especially those related to Panchayats, that are inconsistent with the provisions of Sec.4 (n) are null and void as the provisions of the Central legislation shall prevail. Therefore, inconsistent provisions in the State laws are to be amended suitably.

2. All subject related laws covered under PESA, and their rules and procedures, of the State should be brought in conformity with the PESA Act, 1996, within a period of one year from the date of issue of directions.

II. Identification and declaration of ‘Village’ and its Geographical Jurisdiction

Section 4 (b) of PESA defines a ‘village’ as a habitation or a group of habitations, or a hamlet or a group of hamlets, comprising a community and managing its affairs in accordance with its traditions and customs and empowers the gram sabha as the assembly of the adults of the village. However, in a clear violation of PESA, the general Panchayat Raj structure has been adopted even in Schedule V areas, whereby the Gram Sabha of Gram Panchayat, usually spread over a number of habitations is being misconstrued to be Gramsabha under PESA. As the successful operationalisation of PESA hinges on adopting the operational definition of Gram Sabha and village, it is necessary that the identification of the ‘village’ and delineation of its geographical limits in conformity with PESA is done to enable it to function as envisaged under law.

Therefore, the following directions be issued under Proviso 3 of the Fifth Schedule

1) State Governments shall prepare and notify the list of hamlets (settlements) in every Panchayat for notification as “gram sabhas” for the purposes of the Panchayats (Extension to the Scheduled Areas) Act 1996 within one year from the date of issue of this direction. Such Gram Sabha shall ordinarily comprise of the assembly of the residents of one or more hamlets, comprising a community and managing its affairs in accordance with traditions and customs within its territorial boundaries. This unit will ordinarily be below the revenue village and is not the same as gram sabhas at the panchayat level.

2) State governments shall devolve necessary powers and resources (both human and financial) to gram sabhas to enable them to undertake their roles and responsibilities in an effective manner through amendments in law, rules and

procedures in areas covered under PESA in addition to undertaking capacity building and training .

 

III. Powers to identify beneficiaries, approve plans, programmes and projects, control over institutions and functionaries and issue of utilization certificate

Sections 4(e) (i) and (ii), 4(f), and 4(m) (vi) and (vii) of the Panchayats (Extension to the Scheduled Areas) Act 1996 confers the power to approve the plans, programmes and projects for social and economic development to the Gram Sabha, before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level. The Gram Sabha is additionally empowered to identify and select beneficiaries under the poverty alleviation and other programmes. Gram Sabha is also empowered to control local plans and resources for such plans including tribal sub-plans, and exercise control over institutions and functionaries in all social sectors; and issue certification of utilisation of funds to the Panchayat for the plans, programmes and projects. However, notwithstanding the clear provisions of the Act, most of the said powers are not conferred de jure and de facto on the Gram Sabha

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha is the Competent Authority for identification of beneficiaries for development programmes and select them accordingly;

(2) The list of works/projects to be undertaken by the government agencies and non-government agencies in the village along with complete details, such as their relevance, full financial details, details of the work/projects including technology to be used, participation of local work force, role of contractors, etc. shall be submitted to the Gram Sabha by the Gram Panchayat or Panchayats at appropriate level; and their approval shall be obtained from the Gram Sabha prior to granting sanction to the plan or project.

(3) The Gram Sabha shall conduct regular social audit of works/projects and programs taken up by any Panchayat, State or any other agency in their area and its findings shall be sent to the Gram Panchayat and to the concerned Government agency for necessary action;

(4) All agencies undertaking any work within the village shall apply for certification to the Gram Sabha together with documentary proof of expenditureand mandatorily obtain certification of utilization of all funds and works undertaken from the Gram SabhaThe Gram Sabha will issue such certificate after inspection and verification of the work ;

(5) Any objection pertaining to the quality of the work or expenditure, etc. may be placed before the Gram Sabha. The Gram Sabha may examine the issue and give proper instruction for improvement and its decision will be final;

(6) The Gram Panchayat and its committees will work under the general direction of the Gram Sabha and be accountable to the Gram Sabha in respect of services and programmes for that area. Any enquiry into the functioning of the Gram Panchayat or any functionary will be conducted after consulting the concerned Gram Sabha(s). The findings and results of the enquiry shall be presented before the Gram Sabha before being finalized and forwarded for proper action;

(7) The Gram Sabha shall review all social sector schemes, institutions and functionaries functioning in the village whether governmental or non-governmental;

(8) On completion of any programme, the complete details thereof will be produced before the next meeting of Gram Sabha. The Gram Sabha may constitute special Committees, call for their training to fulfill their responsibilities and seek assistance of experts to assist in its reviews;

(9) Instructions of the Gram Sabha, including imposition of penalties, steps to improve the implementation of social sector schemes, performance of functionaries and delivery of services shall be complied with by the concerned functionaries.

IV. Land Alienation and Restoration of Illegally Alienated Lands

Ownership and secure access to land is very important for the wellbeing of the tribal people and land alienation is arguably the most important reason for their disaffection. Studies show that the administration has been ineffective in protecting the corpus of tribal lands and hence section 4(m) (iii) of PESA empowers the community to protect the land resources and habitations of Scheduled Tribes in Scheduled Areas, while Sec.4 (d) additionally recognizes the competence of the Gram Sabha to safeguard community resources and both individual and collective rights to land. The Gram Sabha is empowered to take prompt and appropriate action to protect the corpus of tribal lands, prevent alienation of tribal land and take efficacious steps to restore alienated land of a member of the Scheduled Tribe, acting singly or with the support of the Revenue Authorities.

All land transfers to non tribals have been banned in the Scheduled areas of Andhra Pradesh by Regulation No 1 of 1970 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, which has effectively reduced tribal land alienation. Further, the principle underlying the Samata Judgement affirms that land in the PESA areas serves the interests of the tribals. Protection of the corpus of tribal land, restraint on unlawful alienation or acquisition and efforts to ensure that gains from the land accrue to the tribal people is the clear intention of the Constitution, Laws and Regulations of the States and judicial pronouncements.

It is proposed that following directions be issued under Proviso 3 of the Fifth Schedule for incorporation in the Land Revenue Code of the State and other related land laws to enable gram sabhas to carry out these powers and responsibilities pertaining to prevention of land alienation and powers of restoration of alienated tribal land.

Protection of the Corpus of Tribal Land and Prevention of its Alienation

(1) Any transfer of immovable property situated in the Scheduled Area by a person, whether or not such person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Co-operative Societies Act of the State which is composed solely of members of the Scheduled Tribe (1);

1 Adopted from Sec.2(1)(a) inserted by Regulation No 1 of 1970 to the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959

(2) The following shall be included in the provisions in the Land Revenue Code of the States and laws related to alienation and restoration of tribal land requiring

(a) the Revenue Department to make an inventory of all lands in the possession of the tribals and ensure expeditious securing of appropriate titles under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 or Land Revenue Codes or relevant land laws, as the case may be;

(b) the Revenue Department to ban all sale, transfer or lease, in the Fifth Schedule areas without the express prior informed consent of the Gram Sabha;

(c) mandatory intimation from the Revenue Authorities and individual or non governmental entities to the Gram Sabha in writing through the Gram Panchayat of any proposed sale or transfer including lease, mortgage of any land/transaction in the village;

(d) mandatory provision of providing all relevant revenue records sought by the Gram Sabha concerning the proposed sale, transferor lease of the land within 30 days of such request in writing;

(3) Every State having Scheduled Area shall constitute a ‘Land Consolidation Fund’ (LCF). Part of this fund shall be allocated at the district level to a designated authority to be notified by the State Government. The designated authority shall release necessary fund to the Gram Sabha for purchase of any land within its jurisdiction in the manner prescribed below. The LCF shall exclusively be used for enabling the Gram Sabhas in the Scheduled Area for the following purpose:

(a) purchase at market price of any land falling within the jurisdiction of the concerned Gram Sabha owned by any resident whether a Scheduled Tribe or not, and who is desirous of selling his/her land and has made a request in writing to the Gram Sabha;

(b) the land thus purchased shall be in the name of the Gram Sabha of the concerned habitation;

(c) the said land shall be put to use for common purpose by the concerned Gram Sabha;

(d) the Gram Sabha may allocate such land, partly or wholly as the case may be, to any landless Scheduled Tribe of the habitation with enjoyment rights;

(e) the Gram Sabha shall cancel such enjoyment rights if need be and reallocate the same to another landless Scheduled Tribe of the habitation or utilise the same for the common community needs;

(f) The Record of Rights with respect to such land shall be in the name of the Gram Sabha. 

Restoration of Alienated Tribal Land

(1) A clear and explicit provision be made in the Revenue Law and other relevant laws to include such provisions in the Land Revenue Code of the State and laws related to alienation of tribal land that

(a) confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha to restore the alienated tribal land;

(b) authorize the Gram Sabha to call for all relevant revenue records concerning the alienation of such land to be provided within 30 days of such request;

(c) empower the Gram Sabha to conduct a hearing and order restoration of the land back to the concerned member of the Scheduled Tribe;

(d) The Gram Sabha may direct or seek the assistance of the Police in restoration of the land, if it so desires.

(2) Gram Sabha shall inform the orders of restoration to the Sub-Divisional Officer who shall ensure restoration within a period of three months, intimate the same to the Gram Sabha and direct appropriate entries in the Record of Rights.

(3) The Gram Sabha may constitute a Standing Committee from among its members and call upon the Revenue Authorities to train such members in all matters related to the maintenance of records and the exercise of the powers mentioned above.

 

V. Regulation of intoxicants

Sec.4 (m) (i) confers the Gram Sabha with ‘the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant’. Intoxicants, particularly liquor, have been an instrument for usurpation of resources, particularly land, in the tribal habitations with devastating effect on the lives of the Adivasis, particularly women and children. Hence empowering the Gram Sabha with the power to regulate intoxicants is critical to ensuring that the community has direct control and responsibility over this matter.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) The Gram Sabha shall have the powers to grant or deny permission for brewing indigenous/ traditional inebriants for sale, and establishment of a factory to manufacture intoxicants, and will have powers to regulate collection, storage, sale and use of intoxicants within its territory; 

(2) The Gram Sabha shall have powers to regulate existing shops or outlets vending intoxicants in the village and direct the competent authority to close any shop or outlet operating in violation of any law ;

(3) No permit to start a factory may be issued by Government without the consent of all Gram Sabhas in the area; and

(4) Agreement of fifty percent of women present in the Gram Sabha meeting is necessary in all decisions concerning manufacture, sale and consumption of intoxicants.

VI. Control over Money Lending in the Scheduled Areas

Usurious money lending has been the single most important cause of impoverishment and exploitation of the tribal people after these areas were opened up by the British.Usurious money lending has been major cause of dispossession of land and resources of the tribal people, leading to widespread distress and disaffection. It is in this light that PESA seeks to empower the Gram Sabha, to regulate money lending and usury.

In order to effectively carry out these powers and responsibilities, the following directions are to be issued under Proviso 3 of the Fifth Schedule

(1) To include such provisions in concerned State laws, rules or procedures to

(a) Confer power on the Gram Sabha to act suo motu or on a complaint from a member of the gram sabha concerning usurious money lending by any individual or institutions and to direct the competent authorities to cancel the licence of the offending money lender/ institutions and take necessary civil and criminal action as the case may be ; and

(b) Conduct a hearing and order restoration of the monies or interest or mortgaged/ unlawful alienation /conditional sale of property back to the concerned member of the aggrieved member of the Gram Sabha;

(2) Regulate Money Lending by declaring that:

(a) levying of ‘compound’ interest by any money lender, whether individual or institutions on loans given to members of Scheduled Tribes is illegal;

(b) no moveable or immovable property of a Scheduled Tribe shall be alienated in lieu of recovery of loan or interest.

(c) All licences for money lending by individuals to be subject to issue of no objection certificate by the concerned Gram Sabhas in its jurisdiction.

3. OTHER RECOMMENDATIONS TO CENTRAL GOVERNMENT

I. Inclusion of tribal habitations hitherto not included under the Fifth Schedule

Fifty to seventy percent of the STs live outside the Scheduled Areas and hence are denied rights provided in Article 244. The Bhuria Committee rightly observed that the present-day administrative boundaries of the Scheduled Areas were determined during colonial times based on colonial compulsions. The earlier boundaries were modified without paying attention to the fragmentation of contiguous communities living in contiguous areas with the result that tribal communities are continuously being reduced to a minority population, be it the State, district or block and thereby making them marginal in every way.

Various committees had recommended that habitations that have been left out be included and the anomaly rectified. Further, recommendations to make the Tribal Sub-Plan areas coterminous with Vth Schedule Areas has not been implemented, entirely due to political and administrative apathy and neglect, thereby excluding large numbers of tribal habitations. This situation prevails even after the Fifth Schedule to the Constitution (Amendment) Act, 1976 (101 of 1976), which required states to include hitherto tribal habitations. But no tribal habitations in the States of Kerala, Tamilnadu, Karnataka, West Bengal, Jammu & Kashmir and Uttar Pradesh have been included under the Vth Schedule as Scheduled Area.

The provisions of the Fifth Schedule under Article 244(1)2 are applicable not only to the administration and control of Scheduled Areas,but also to the Scheduled Tribes. PESA, as the extension of the 73rd Amendment to the Constitution to the Scheduled Areas cannot be applied to close to 70% of the tribal regions in the absence of their inclusion. Hence it is appropriate to call upon the State governments to make fresh proposals to bring tribal areas under the Vth Schedule.

2 Article 244. Administration of Scheduled Areas and Tribal Areas

(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram

In order to effectively carry out the inclusion of tribal areas under the Vth Schedule to the Constitution, it is recommended that:

States to list out all villages whose Scheduled Tribe population is over 50 percent as per 2011 census and prepare proposal for their inclusion in Scheduled areas to the President. A Special Task Force may be constituted by the Government of India to facilitate and to expedite process of notification by the President of all proposals received from states for inclusion in Scheduled Areas.

II. Upgradation of Panchayats to Municipalities in Scheduled Areas

Numerous Panchayat areas are being upgraded/ converted as municipal/urban areas in the Scheduled Area and it is being argued that PESA is no longer applicable in these areas. This has happened in Chhattisgarh, Madhya Pradesh and Maharashtra, and has resulted in cases being filed in courts. The Chhattisgarh High Court declined to stay the elections to the newly formed urban Panchayat. The Jabalpur High Court stayed elections to 52 District Panchayats and municipalities in 26 districts having Scheduled Areas. In September 2009, the court held the Panchayati Raj Act did not apply to Scheduled Areas and said that the Parliament should enact a suitable law extending 74th Amendment to urban areas in Scheduled Areas. There is also a case pending in Maharashtra. More PESA areas can be expected to be upgraded, taking those out of the purview of PESA and these will exist in a constitutional vacuum and unlawfully brought under the purview of the general municipal law.

The Second Bhuria Committee Report concerning the Extension of the Provisions of the 74th Amendment to Urban Local Bodies in the Scheduled Areas was tabled in Parliament on 19 July, 1995 making a number of observations and recommendations. The Provisions of the Municipalities (Extension to Scheduled Areas) Bill 2001 based on the aforesaid Report as well as the comments from the central ministries and the concerned State governments having Scheduled Areas, was introduced in the Rajya Sabha on 30th July 2001 and was referred to the Standing Committee on Urban and Rural Development on 6 August 2001. The Standing Committee submitted its report and recommendations in November 2003 as its Fifteenth Report. However the Union Government is yet to introduce a suitable law for the administration of Municipal Areas in Scheduled Areas. The result is that the Panchayat areas within the Scheduled Areas are being upgraded into Municipal Areas and taken out of the purview of PESA provisions without the mandatory alternative protective provision extending the 74th Amendment to the Municipal Areas in place and thus creating a legal infirmity. This needs to be rectified.

It is recommended that:

The Union Government takes steps to introduce the revised Provisions of the Municipalities (Extension to Scheduled Areas) Bill in the Parliament at the earliest in such a manner that the interests of the Scheduled Tribes are not adversely affected.

III. Structures above the Gram Sabha at district level in Scheduled Area

Sec.4 (o) of PESA requires that the State Legislature provide the pattern of the Sixth Schedule to the Constitution while designing administrative arrangements in District Panchayats in the Fifth Schedule Areas. At present this has not been adhered to and on the contrary the efforts are to assimilate, integrate or subsume tribal habitations/villages and their Gram Sabhas in the Scheduled Areas into the prevailing Panchayat Raj system operating in the area outside the Scheduled Area where the Panchayat structure dominates rather than the Gram Sabha as envisaged in PESA.

It is recommended that:

The Ministry of Tribal Affairs along with the Ministry of Panchayat Raj jointly constitute a Special Task Force of persons with the expertise on tribal matters to study the functioning of the Fifth and Sixth Schedules and laws related to the tribal people and recommend appropriate administrative arrangement for Vth Schedule Areas within one year.