#India- Shut all mines in tribal areas


DNA Special

Tuesday, Apr 9, 2013, 3:00 IST | Place: New Delhi | Agency: DNA

Tribal minister shoots letter to 9 guvs seeking cancellation of leases.

Union tribal affairs minister V Kishore Chandra Deo has asked governors of nine states to invoke their special powers to revoke lease agreements and MoUs signed between state governments and corporates to extract mineral wealth in tribal areas.

Pointing out that power lobbies were disregarding land regulations, he castigated the Congress-ruled Andhra Pradesh government. The union minister, who is also from Andhra Pradesh, said the higher echelons of power in the state were themselves trying to brazenly distort not only the law but also  constitutional safeguards against the interests of tribal and other forest-dwellers.

In an identical letter written on April 4 to the governors of Bihar, Gujarat, Madhya Pradesh, Jharkhand, Maharashtra, Odisha, Rajasthan, Andhra Pradesh and Himachal Pradesh, the minister even linked indiscriminate mining activities to national security by propelling the Left Wing extremism.

He even went to the extent castigating his own government saying the insensitivity to the plight and problems of this entire population is the greatest challenge the nation is facing at present.

“The main threat today is the mining in Schedule V areas which has shaken the confidence and faith of the people in the region in our democratic system.”

He has reminded governors that Article 244 of the Constitution vests not only independent legislative authority on them but also allows them to restrict any law of parliament or state legislature from its implementation to a scheduled area in their states to protect rights of tribes and marginalised sections.

“The governor may repeal or amend any Act of parliament or of the legislature or any existing law which is for the time being applicable to the area in question, when good governance or peace is distributed due to issues related either with land or money lending,” writes the minister.

He further told governors that they are not bound by the aid and advice by the council of ministers under these circumstances.

The minister further urged the governors to use their executive powers and revoke lease agreements which are proving a threat to peace and good governance in these areas.

“I would like to emphasise the fact that the leases and MoUs are mere arrangement s/agreements between two parties and are not exactmetns of either assembly of parliament,” he said.

#India – Why is mainstream media silent on the ( IL)LEGALITY of #UID #Aadhaar


Uid- I am not a criminal
by-PoliticallyIncorrect ,http://centreright.in
Why is the Mainstream Media Silent on the (il)legality of the UID Project?- II
In my last post on the UID project of the UPA government, I had raised a few issues about the manner in which the UPA went about implementing the project by circumventing constitutional protocol. In this post, I will address specifically the fundamental legal infirmities of the campaign. In doing so, I will keep this post as lucid as possible without inundating it with legalese.
As stated in the last post, when the Ministry of Planning was asked to clarify on the legality of constituting an executive body such as the UIDAI without there being a specific legislation in place which sanctioned the collection of information under the UID project, the Ministry cited the Attorney General’s opinion who seems to have relied upon Article 73 of the Constitution.
Now what does Article 73 envisage and permit? Below is the relevant portion of the Article which the Attorney General appears to have relied upon to justify what he calls “Executive Authorisation”:
Article 73: Extent of the Executive Power of the Union
Subject to the provisions of this Constitution, the executive power of the Union shall extend
To the matters with respect to which Parliament has power to make laws
Let’s interpret this Article step by step. The provision starts with a contingent clause i.e. a “Subject to” clause. This means that all other relevant provisions of the Constitution shall act as a limitation on the executive power of the Central Government (“Union”) to deal with matters with respect to which the Parliament has the right to legislate.
Simply put, if there is any other provision in the Constitution which prevents the Central Government from issuing notifications in the absence of a specific legislation made by the Parliament, such notifications would be patently unconstitutional.
The UID, without a doubt, deals with the private details of individuals, and consequently falls within the realm of “privacy”. The Supreme Court has time and gain clarified that privacy-related issues fall within the ambit of Article 21 since right to privacy has been interpreted as being integral to “right to life” under Article 21.
Therefore, the question is, does the Constitution permit intrusion into privacy through mere executive orders such as the UIDAI notification? Or does the Constitution mandate passing a legislation which is fair and reasonable before private details can be collected?
Article 21 states,
Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law
Clearly, Article 21 frowns upon intrusion of privacy except “according to procedure established by law”. Therefore, if the UID notification does not fall under the category of “procedure established by law”, the UPA government cannot invoke its “executive powers” under Article 73 to lend legal sanctity to the UID project.
In as early as 1950, in what is still one of the most celebrated decisions of the Supreme Court on the power of the State to summarily abridge the rights of an individual, the Apex Court in A.K.Gopalan v. The State of Madras held that the reference to “law” in “procedure established by law” in Article 21 is to a formal statute/legislation. In other words, there must be a specific statute which must be invoked to impose restrictions on the life and liberty of any person. This applies to restrictions on and intrusions into the privacy of any person (not just citizen).
Keeping with above requirement of a formal legislation, when information is sought by passport offices, they do so under the Passports Act, 1967. When Road Transport authorities seek details for issuing driving licenses and permits, they do so under the Motor Vehicles Act, 1988 and Central Motor Vehicles Rules. In stark contrast to these legislations, there is no parent legislation which governs the UID notification. This ground alone is sufficient to strike down the UID notification as being unconstitutional. But the story doesn’t end there…
Let’s take a look at what the UID Authority is empowered to do:
(i)    Generate and assign UID numbers
(ii)    Define mechanisms and processes for interlinking UID with partner databases on a continuous basis.
(iii)    Frame policies and administrative procedures related to updating mechanism and maintenance of UID data base on an ongoing basis.
(iv)    Coordinate / liaise with implementation partners and user agencies as also define conflict resolution mechanism.
(v)    Define usage and applicability of UID for delivery of various services.
(vi)    Operate and manage all stages of UID lifecycle.
(vii)    Adopt phased approach for implementation of UID especially with reference to approved timelines.
(viii)    Take necessary steps to ensure collation of NPR with UID (as per approved strategy).
(ix)    Ensure ways for leveraging field level institutions appropriately such as Panchayati Raj Institutions (PRIs) in establishing linkages across partner agencies as well as its validation while cross linking with other designated agencies.
(x)    Evolve strategy for awareness and communication of UID and its usage.
(xi)    Identify new partner / user agencies.
(xii)    Issue necessary instructions to agencies that undertake creation of data bases, to ensure standardization of data elements that are collected and digitized and enable collation and correlation with UID and its partner data bases.
(xiii)    Frame policies and administrative procedures related to hiring / retention / mobilization of resources, outsourcing of various tasks and budgeting and planning for UIDAI and all State units under UIDAI.
The sheer magnitude of powers vested in an executive authority such as the UIDAI in relation to an issue which affects privacy of individuals, in the absence of a governing legislation which provides for safeguards, is atrocious and outrageous.
Where is the safeguard to prevent the use of skewed metrics to profile the population, and that too to facilitate anti-national policies of the Government of the day? Where is the attribution of liability for goof-ups and blunders committed by the authorities? When illegal migration is a raging issue, where is the caveat against legitimizing illegal immigrants by providing them with Aadhaar cards?
Excessive delegation of such vast powers to the executive authority is a strict no-no under Indian law. Here’s what the Supreme Court had to say in Devi Das Gopal Krishnan and Ors.Vs. State of Punjab and Ors. (1967) on the issue of excessive delegation:
“The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate items functions in favor of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency.
But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may not declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself and control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation..”
This was the observation of the Hon’ble Supreme Court in a case where there was already governing parent legislation in place. In the case of the UID project, I repeat there is no parent legislation at all. Therefore, this caveat against vesting an executive authority with unchecked powers applies all the more to the UID authority.
In light of the above, I can’t help asking this question- How on earth have the Congress-led UPA government in the Centre and a few State Congress governments gotten away with the blatant implementation of the UID project for 4 years since 2009. Where are the bleeding heart liberal voices and mombattiwallahs who arrogate to themselves the exalted status of being the sole guardians of civil liberties? Hypocrisy much? I’d say so…

 

#India- A moment of triumph for women #justiceverma #Vaw #womenrights


KALPANA KANNABIRAN,The Hindu

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A TRANSFORMATION

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

VOICES FROM CONFLICT ZONES

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

THE DELHI CASE

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email:kalpana.kannabiran@gmail.com)

 

#India- Victory for freedom for freedom of expression #FOE #judgement


By T S Sekaran – CHENNAI

24th January 2013 0

In an important judgment having far-reaching consequences, the Madras High Court has declared unconstitutional certain provisions of the TN Dramatic Performances Act and Rules, which mandated censorship of drama scripts by the police/district administration.

Justice K Chandru declared sections 2(1), 3, 4, 6 and 7 of the Act and 4 of the Rules,  while allowing a writ petition from journalist, writer, stage actor and director NS Sankaran alias Gnani, on Wednesday.

The Act was originally introduced by the British regime way back in 1876 to gag the freedom fighters and patriots. After Independence, on coming to know that the pre-constitutional 1876 Act would not pass the constitutional test under Article 13 of the Constitution, many governments introduced their own version of censorship of plays. And the TN government introduced the TN Dramatic Performances Act in 1954.

As per the Act, two copies of the drama script should be submitted to the police/district administration three weeks in advance. Permission to enact the drama might be either denied or granted after removing certain dialogues. The Act also provided for imprisonment for three months or fine or both in some cases for any violation.

Gnani contended that the authorities concerned were neither artistes nor persons having aesthetic sense to judge whether a play contained objectionable scenes/dialogues and hence it was uncalled for. The decision was conveyed at the eleventh hour leaving no time to make alternative arrangements.

Advocate General A Navaneethakrishnan submitted that the government was agreeable to provide a provision in the Act and the Rules making it mandatory for forwarding the script to the TN Iyal Isai Nataka Mandram for better appreciation of artistic nuances. There was also a provision in the Act to appeal before the HC, he added.

Justice Chandru observed that a defective order could not be cured in an appeal. When the play was sought to be enacted in a public place, time was the essential factor. But, the Act did not specify any time limit for approval. AG’s submission that the script could be referred to the Nataka Mandram did not merit any legal acceptance as the act did not contemplate any such requirement from an outside agency for opinion.

The opinion would not be binding on the authority and it would only remain as an advisory. By making an amendment to the Rule, the defect could not be cured. Once it was found that the provisions of the Act were arbitrary and excessive power had been given to the delegates, certainly it had to be held that it was unconstitutional and violative of Articles 14 and 19 of the Constitution. In the absence of statutory backing, no such mechanism could be introduced by the State, the judge said and declared the sections as ultra vires of the Constitution.

 

Mining in rat holes, and a Meghalayan policy


Photo: Shailendra Pandey

Tehelka Blog, Nov 12, 2012

It is said that Meghalaya has a history of no less the 80 years of unregulated and unscientific mining of natural resources, mostly coal and limestone. Due to customary tribal laws and lack of resistance, unregulated mining has turned into a cottage industry of sorts in the hilly state. In fact, though it remains quite unregulated, mining is Meghalaya’s biggest industry.

For instance, you will come across ‘rat hole mining’ in almost every nook and corner, where minors risk their lives to dig out coal. It was after activists rung the alarm bells on child rights abuse in these ‘rat holes’ that the Meghalaya government started to take the matter seriously. Moreover, the presence of large-scale limestone reserves in the state has made way for dozens of cement manufacturing plants, often set up in violation of environmental and forest guidelines. Meanwhile, the state government has drafted the Meghalaya Mineral Policy 2010 and plans to get it approved in the winter session of the State Legislative Assembly – the last time the Assembly would meet before the state goes to polls in early 2014.

The Mukul Sangma government has already started to hard sell the policy, which promises to bring scientific know-how to miners and private investment to the mining sector so that bigger projects can be envisaged, which would also enable infrastructure development. Sources say, since the Congress in Meghalaya is itself divided in opinion about introducing the policy, the government keeps it on hold. There is a desperate attempt to dress up the policy as a holy cow, but it is really going to be that sacrosanct?

All of Meghalaya falls under the Sixth Schedule areas, where, as per the Constitution, the tribals do not need any prior permission to start mining. So there is no need for environmental, forest or pollution clearances, and the industry is tax-free. Many of the tribals in governance and politics are also seen to be involved in unregulated mining. Though labour laws, child rights and safety norms are joke for Meghalaya’s mining industry, Constitutional safeguards for tribal areas in the form of the Sixth Schedule keep the Centre from poking its nose in the matter. Sources claim that all politicians have huge assets in unregulated mining, and the workers in the sector are either migrant poor from other states, or from Nepal and Bangladesh, or they are trafficked minors. So the state government tends to ignore even major mining accidents.
So the policy might have come about because of the pressure the state government came in from the Guwahati High Court on the issue. The HC had imposed a fine of Rs 50,000 on Meghalaya for not having a mining policy, and later another Rs 5 lakh for not regulating mining on tribal land.

Ahead of the election, no political party in Meghalaya would dare to speak against illegal and unregulated mining, and after the poll, everyone will forget the issue and the policy will bite the dust. It is time for the tribal chiefs of Meghalaya, who hold enormous powers, to rise beyond clannish thinking and raise their voice for a regulated mining regime that has respect for the environment, and for forest, labour and child rights.

Ratnadip Choudhury Author: Ratnadip Choudhury works as a Principal Correspondent with Tehelka. A young IT professional by training and a journalist by chance, Ratnadip hails from Tripura and has been reporting out of Northeast India for Eight years, as of 2012. He started his career with the Tripura Observer and went on to work with the Northeast Sun, The Northeast Today, News Live, Sahara Time and The Sunday Indian. He has also contributed to BBC, CNN, NatGeo TV, NDTV, CNN-IBN and TIMES NOW. Before joining Tehelka, Ratnadip worked with the national bureau of the television news channel NewsX. He specializes in conflict reporting and has a keen interest in India’s eastern neighbours. He is based in Guwahati.

SC to review #deathpenalty for kidnap,ransom and murder


Dhananjay Mahapatra TNN 

New Delhi: For the murder of a 16 year-old Abhi Verma in 2005 after kidnapping him for ransom,three persons,including a woman,were awarded death penalty in 2006 that was upheld by the Supreme Court.
But,two of them got a fresh lease of life on Friday,as the Supreme Court stayed fresh execution warrant after they challenged the constitutional validity of Section 364A of the Indian Penal Code (IPC) that permits the courts to award capital punishment for kidnapping-cum-murder for ransom.
A bench of Justices Swatanter Kumar and S J Mukhopadhaya issued notices to the Centre and Punjab government after advocate D K Garg argued that Section 364A was meant to tackle kidnapping for ransom indulged in as a strategy by international terrorists to destabilize the country and not applicable to individual criminals.
The bench also requested Solicitor General R F Narimans assistance in the matter as Garg pointed out that the condemned prisoners had been living under the shadow of execution warrant since December,2006,and hence deserved to be punished with life imprisonment.
The trio Vikram Singh,Jasvir Singh and Sonia was convicted by a Hoshiarpur trial court for kidnapping minor Abhi and demanding Rs 50 lakh ransom from his goldsmith father,Ravi Verma.They murdered Abhi to eliminate evidence.The HC confirmed the death sentence in May,2008,and the Supreme Court dismissed their appeal on January 25,2010.
But,now they have raised an important question of law relating to validity of Section 364A,which was inserted in the statute retrospectively from 1993 after Parliament approved amendment of IPC in 1994.
Garg drew a comparison between Section 364 and 364A of IPC.He said: Section 364 deals with kidnapping or abduction in order to murder provide for a maximum punishment of life or 10 years,but Section 364A provided for death penalty for an additional offence of demanding ransom.
Thus,there is no rationale or justification for imposing death sentence for a mere additional ransom demand.This violated right to equality and right to life guaranteed under Article 14 and 21 of the Constitution, he said.

 

Naxalism a result of an oversight of statutes, says SC


 

  
Utkarsh Anand : New Delhi, Wed Oct 03 2012,  Indian Express

Emphasising on validation of rights of tribals and forest-dwellers over the forest lands, the Supreme Court has said that Naxalism was a result of an oversight of constitutional provisions relating to administration of schedule areas and tribes of the country.

“Nobody looks at Schedules V and VI of the Constitution and the result is Naxalism. Urbanites are ruling the nation. Even several union of India counsel are oblivious of these provisions under the Constitution,” said a Bench led by Justice A K Patnaik.

The Bench made a reference to Schedules V and VI as they contain various provisions relating to administration and control of scheduled areas and scheduled tribes in several parts of the country. These provisions apply to states like Andhra Pradesh, Jharkhand, Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Chhattisgarh, Orissa and Rajasthan and Northeastern states such as Assam, Meghalaya, Tripura and Mizoram. Essentially these Constitutional provisions, with the help of plethora of judgments by the apex court, act as a guarantee to indigenous people on the right over the land they live in and its produce.

During a recent hearing on fresh guidelines over tiger reserves, the Bench made certain queries from Additional Solicitor General Indira Jaising over the Centre’s proposal to relocate indigenous people who were still living in the core areas of tiger reserves.

The ASG had informed the Bench there were around 43,000 families still residing in core areas of tiger reserves and that the plan was to gradually move them out after proper consultation with Gram Sabhas. On being asked about the legal provisions to support the argument, she also read out from the 2006 Forest Rights Act and the Panchayat (Extension to Scheduled Areas) Act.

Asserting that all stakeholders should first ensure the legal rights of the tribals are not violated, Justice Patnaik said their rights must be settled in accordance with the provisions of the law.

“There is apparently no human-tiger conflict at least as far as these tribals are concerned. Everyone must remember that forests belong to forest-dwellers. British government considered forests of immense value and said through laws that all forests belonged to government. These people were brought down to poverty and they couldn’t earn their living. They will be arrested for consuming the forest produce; such was their law,” said Justice Patnaik.

His concerns were echoed by senior advocate Dushyanat Dave, who said forest-dwellers used to get arrested trying and collect wood or pick fruits from the forests.

The Bench, however, seemed satisfied with the promulgation of the 2006 Forest Rights Act and said this situation was sought to be reversed by the new legislation as it sought to identify their rights.

“One law can make a big difference. Zamindari abolition law is a good example how a law can reverse the situation,” said Justice Patnaik, adding it was not the state but its forest departments’ officers who did not want to give up their control over the forests.

At this, the ASG said the Centre was conscious of its duty towards protecting the rights of forest-dwellers and would relocate them after following the legal process.

 

Companies can’t acquire SC, ST land: Supreme Court


PTI Sep 20, 2012,  IST Tags: Supreme Court| Scheduled Caste| Schedule Tribe (The Supreme Court said that…)

NEW DELHI: In a significant ruling, the Supreme Court today said that the land belonging to scheduled castes or tribes cannot be bought by non-dalits, including companies as such transactions are unconstitutional. A bench of justices K S Radhakrishnan and Dipak Misra gave the verdict on an appeal by the Rajasthan government against the state high court’s order holding such a sale to be valid in law.

The high court had passed its order on an appeal by a firm, Aanjaney Organic Herbal Pvt Ltd, against the refusal by the state authorities to recognise or grant mutation to the purchase of a plot by the company from a person belonging to scheduled caste. “The Act is a beneficial legislation which takes special care to protect the interest of the members of Schedule Caste and Schedule Tribe. “Section 42 (SC, ST Act) provides some general restrictions on sale, gift and bequest of the interest of Scheduled Caste and Scheduled Tribe, in the whole or part of their holding.

“The reason for such general restrictions is not only to safeguard the interest of the members of Scheduled Caste and Scheduled Tribe, but also to see that they are not being exploited by the members of non-Scheduled Caste and Scheduled Tribe. “We find Section 42(b) of the Act has to be read along with the constitutional provisions and, if so read, the expression ‘who is not a member of the Scheduled Caste or Scheduled Tribe’ would mean a person other than those who has been included in the public notification as per Articles 341 and 342 of the Constitution,” said Justice Radhakrishnan, writing the judgement for the bench.

That property was purchased on September 26, 2005 through a registered sale deed for a consideration of Rs 60,000. The high court had held that such a transfer was valid as the company being a ‘juristic person‘ does not have a caste and, therefore, any transfer made by a Scheduled Caste person would not be hit by Section 42(b) of the Act. “If the contention of the company is accepted, it can purchase land from Scheduled Caste / Scheduled Tribe and then sell it to a non-Scheduled Caste and Schedule Tribe, a situation the legislature wanted to avoid. “A thing which cannot be done directly can not be done indirectly by over-reaching the statutory restriction. “We are, therefore, of the view that the reasoning of the high court that the respondent being a juristic person, the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the above mentioned provision,” the apex court said.

Sympathy not the solution #disability


June 21, 2012, The Hindu
RAHUL CHERIAN
AMBA SALELKAR
ABOUT EQUALITY : Mere non-discrimination will not bring the disabled into the mainstream as they require further affirmative action in almost every sphere of life
 
The Constitution must be amended to prohibit discrimination against the disabled and to bring them into the mainstream
 
In his column in The Hindu on June 11, 2012 titled “One Simple Step to Increase our GDP,” Aamir Khan makes an important observation — how we behave with the disabled among us tells us what kind of a people we are. And by that standard, India is not the kid you would want to be best friends with in school. Mr. Khan argues that the lack of education of the disabled is the problem and that education is the solution to the problem, which will also possibly lead to an increase in the GDP of the nation. We however believe that the problem is much more fundamental than that, and that the main barrier to a progressive and inclusive approach to persons with disabilities is the current framework of the Constitution itself.
Rights and Acts
The rights of persons with disabilities are sketchily enshrined in various Acts of Parliament — the Mental Health Act, 1987 (to regulate mental health services), the National Trust Act, 1999 (for creation and monitoring of a trust for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities), the Rehabilitation Council of India Act, 1992 (to regulate rehabilitation services), and the Persons with Disabilities Act, 1995 (for everything else). All of these Acts do, in fact, achieve the objective of treating the disabled as a different class altogether — which is the premise of the law on disability in India.
India is a signatory to the United Nations Convention on the Rights of Persons with Disabilities which specifically states that persons with disabilities are to be treated as equals to persons without disabilities. In his column, Mr. Khan cites instances where persons with disabilities have been looked upon as those unloved by god — and we would venture to state that this is eerily reminiscent of the treatment meted out for centuries against those classified as “untouchables.” It took years of campaigning and awareness to eradicate, to some extent, such approaches, but what is undeniable is that Article 17 of the Constitution, which prohibits the practice of untouchability, has helped eradicate it to a great extent. The historic experience of untouchability in India meant that the Constitution was designed to respond to such discrimination.
In a sense, having a disability forces the person to be excluded from all aspects of society, including with respect to education, workplace, transportation, access to public places and everywhere else for that matter. It is not far from the truth to say that the denial of access makes persons with disabilities outcastes. And the fault begins with the Constitution. Disabled people will be able to articulate their moral and political citizenship only when they move away from a benign charity model to a constitutional framework of equal rights. The Constitution in Articles 15 (1) and (2) — which are in Chapter III relating to Fundamental Rights — has an extremely robust provision relating to prohibition of discrimination on the basis of religion, race, caste, sex or place of birth. This provision prohibits discrimination not only by the State but also by citizens with respect to access to shops, hotels, public restaurants and places of public entertainment, among others. Moreover, the Constitution also permits the State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Amendment of Articles
However, persons with disabilities have no similar protection from discrimination under the Constitution. Nor does the Constitution prescribe that special provisions can be taken to ensure that persons with disabilities are included in society. Given this Constitutional framework, all downstream law-making relating to persons with disabilities is based on sympathy and the mood of the law makers at the given time and not based on the recognition of the fundamental rights of persons with disabilities. No wonder then that the 100 million people with disabilities remain outside the ambit of what is considered “society.”
Makes political sense
Thus we come to the Holy Grail for the disability movement in India — the amendment of Articles 15 (1) and (2) to include the word “disability” as one of the grounds on which discrimination shall be prohibited. But adding this word may not be enough and we must go further. Unlike other classes of citizens, mere non-discrimination will not bring the disabled population into the mainstream since persons with disabilities require further affirmative action in terms of removal of barriers, customisation of products and services and accommodation in almost every sphere of life. Therefore, coupled with the amendments mentioned above, a new Article 15 (6) should be added to the effect that nothing in the Constitution shall prevent the State from making any special provision for the advancement of persons with disabilities including to ensure that the State and citizens remove barriers and provide accommodation to persons with disabilities.
These amendments to the Constitution will ensure that each and every law can then be viewed through the lens of the fundamental rights of persons with disabilities, whether it is the laws relating to banking, to insurance, to food security or any other. And if the law is found wanting, then it can be struck down as unconstitutional. Canada, South Africa and Sri Lanka have explicitly recognised the fundamental rights of persons with disabilities. Now is the time for India to do the same. It even makes sense politically, since persons with disabilities constitute a significant vote bank.
Is this an ambitious dream? Yes. Much like the legalities relating to the Right to Education and the ensuing controversy, this will place a burden on establishments, both public and private, to make themselves accessible. Is this an impossible task? Not really. With political will backed by innovative funding methods and judicious public spending it is possible for India to be completely inclusive by 2022. This will be the perfect way to celebrate India’s 75th Independence Day. After all, equality is the Holy Grail to becoming truly independent.
(Rahul Cherian and Amba Salelkar are lawyers with Inclusive Planet Centre for Disability Law and Policy.)

Ambedkar Cartoon Debate: A Perspective


 

Ambedkar Cartoon Debate: A Perspective

 

A raging controversy has erupted over a 1949 cartoon of Ambedkar and Nehru in a NCERT political science textbook, leading to an uproar in Parliament, and an announcement by the HRD Minister that the textbook would be withdrawn from circulation till the cartoon was removed.

We strongly condemn the attack by a mob on the Pune office of Suhas Palshikar, one of the authors of the textbook. Political leaders should stop orchestrating such violence, that smack of the right-wing assaults on dissenting voices. Debate on educational content is welcome, but cannot be dealt with through physical attacks. There is an urgent need to view the matter at hand in the light of reasoned debate. The note below is our stand on, and contribution to, this debate.     

 

On the one hand presence of the 1949 cartoon by noted cartoonist Shankar in the NCERT textbook, is being described as offensive to Dr. Ambedkar, and as part of a political conspiracy to denigrate Ambedkar. On the other hand, the makers of the textbook have resigned in protest against what they hold to be the infringement on academic freedom, and there has been an outcry against censorship. We hold that there is a need to go beyond these two polarized and black-and-white positions, and consider the issues involved, in a spirit of reasoned debate.

First, is the cartoon as it appears in the textbook, really indicative of a malign attempt to denigrate Dr. Ambedkar? To arrive at an answer, let us take a closer look at the concerned chapter, as well as the process of preparation of the textbook.

The concerned chapter, in which the cartoon in question appears, is titled ‘Indian Constitution: Why and How.’ The chapter closely examines the democratic goals, political debates and political interests that informed the process of preparing the Constitution. It is as such very sensitive to the question of caste and communal discrimination and civil liberties. For instance, the section subtitled ‘Limitations on the powers of Government,’ discusses a scenario where the authority empowered to make laws, enacted laws that imposed dress codes, curbed freedom to sing certain songs, or decreed that “people who belonged to a particular group (caste or religion) would always have to serve others and would not be allowed to retain any property” or “that only people of a certain skin colour would be allowed to draw water from wells.” It then explains how one of the functions of the constitution is to set limits on government’s powers, by specifying fundamental rights, civil liberties, and other principles that no government, as a rule, can trespass.

Apart from the Ambedkar-Nehru cartoon by noted cartoonist Shankar, there are several other cartoons that are featured in the chapter, each accompanied by certain thought-provoking questions, which can be answered by reading the chapter’s text itself. For instance, there is a telling cartoon, also by Shankar, on page 7, showing Nehru with two faces, one turned towards a concert of politicians singing Jana Gana Mana, and another turned in the direction of politicians chanting Vande Mataram. The text below comments “Here is Nehru trying to balance between different visions and ideologies,” and asks students to identify these contending forces and try and think about who would have “prevailed in this balancing act?”

The cartoon that is at the centre of the debate, appears on page 18. The text beneath it reads: “Cartoonist’s impression of the ‘snail’s pace’ with which the Constitution was made. Making of the Constitution took almost three years. Is the cartoonist commenting on this fact? Why do you think, did the Constituent Assembly take so long to make the Constitution?” If one reads the accompanying text relating to deliberations of the Constituent Assembly, the answer to the above questions that is suggested is certainly not that Ambedkar was slowing the process and Nehru trying to whip him into going faster. Instead, the text actually spells out the different contending ideas and the painstaking and time-consuming debates, in a very positive light, as an exemplary democratic process. It says, “The voluminous debates in the Constituent Assembly, where each clause of the Constitution was subjected to scrutiny and debate, is a tribute to public reason at its best. These debates deserved to be memorialised as one of the most significant chapters in the history of constitution making, equal in importance to the French and American revolutions.”

So, the textbook as such does not endorse the criticism of the ‘snail’s pace’ of the Constitution. Rather it presents the cartoon as a contemporary comment, and then asks students to consider if the comment is justified? It asks why did it take so long? Was the time for debate well spent? Isn’t it healthy for democracy to take a long time to work out a consensus through reasoned debates?

Further, it is also true that in the process of drafting the textbook, several academics, including leading dalit social scientists, were shown the textbook, who did not at the time make any objections to the inclusion of the cartoon.

A Case for Review of the Cartoon

A close reading of the chapter in the context of which the cartoon appears, establishes that the cartoon and the textbook were unlikely to be motivated by anti-dalit intent. However, that said, is the cartoon itself appropriate or sufficiently sensitive to the context of a society where biases against dalits continue to be rampant, and where dalits are often treated as and held to be subservient to upper castes, and where Ambedkar statues are often vandalised? Surely, there is need to subject the cartoon too, to the process of ‘public reason’ that the textbook itself upholds in its discussion of the Constitution?

The cartoon shows Ambedkar on a snail called the Constitution, driving it with a whip, and Nehru behind him, whip in hand, while the entire nation watches. The problem arises from the perception: is Nehru driving the snail with a whip? Or is he driving Ambedkar with a whip? If the latter, then the image of an upper-caste PM driving a dalit – that too a leading dalit figure who is an icon to the dalit community – with a whip, makes for uneasy viewing. That it did not rouse such a response in its own day, and that Ambedkar himself did not object, is beside the point. Today, the aroused political consciousness of the dalits has made us all more sensitive to such problems of representation, and rightly so. Similarly, many images of women which in 1949 might not have aroused comment, would certainly invite objections today. 

The NY Post once had to apologise after there was a furore against a cartoon it carried, depicting President Obama as a chimpanzee who has been shot dead by police officers, who comment, ‘They’ll have to find someone else to write the next Stimulus Bill” (the scene was a parody of an actual incident where a chimpanzee who violently attacked a woman was shot dead). The cartoon was, on the face of it, a comment on the ‘Stimulus Bill’ being introduced by the US Government. Now, cartoons depicting George Bush as an ape did not invite protest. But the depiction of the US’ only black President as an ape being shot dead, raised uncomfortable resonances of the long history and continuing racist culture of depicting black people as sub-human and inflicting violence on them. Is it not possible that the cartoon showing Nehru and Ambedkar might (perhaps without the intention of the cartoonists and the textbook authors) carry similar resonances evoking the history and continuing culture of holding dalits to be subordinate to upper castes, as ‘taadan ke adhikari’ (deserving of a thrashing)?

It is true that all those who prepared the textbooks, and the experts including dalit intellectuals to whom it was sent, did not, during the preparation of the textbooks, see the cartoon as objectionable. But if in retrospect, there is widespread resentment against one interpretation of the cartoon and the wisdom of its place in the textbook; if the cartoon is seen as having a (possibly unintended) potential to strengthen caste prejudices and distract from the overall spirit and purpose of the chapter, we believe there should be a review of the cartoon. We believe the authors of the textbook should be open-minded and willing to reconsider the wisdom of their choice, and that there should be a review of that cartoon in that chapter, by a panel of academics including the authors as well as leading dalit intellectuals. If the panel finds the cartoon to have any potential to strengthen casteist notions, it should be replaced with more appropriate content.  

 

No to the Culture of Censorship and Bans,

But Yes to Willingness to Revisit Textbooks in the Light of Democratic Concerns and Egalitarian Principles   

Should we support the ban on the cartoon and textbook imposed by the HRD Minister? In the first place, we question the commitment and concern of the range of leaders who are doing politics over the cartoon. After all, we wonder why not a single of these leaders – be it of the ruling Congress, or the Dalit and ‘social justice’ parties – is yet to raise any concern inside Parliament over the recent shocking acquittal of all the accused in the Bathani Tola massacre, where 21 dalits, mostly women and children were slaughtered by an army of upper caste landowners?

Secondly, we must recall the ugly precedents of right wing forces dictating bans and censorship of educational material – be it the question of beef-eating in textbooks of ancient history, the recent withdrawal of Rohinton Mistry’s novel in Mumbai University, or that of AK Ramanujam’s essay in Delhi University. A culture of political decrees on the content of our textbooks and curricula is extremely dangerous and unhealthy. Such educational material must be decided through a process of reasoned debate and discussion. And we should also not play into the hands of the prevailing culture of banning expressions of political dissent: Mamata Banerjee’s crackdown on a cartoon of her, and Kapil Sibal’s attempt to remove images critical of Manmohan Singh and Sonia Gandhi from the internet are cases in point.

However, while firmly rebuffing censorship and bans, we should always be willing to revisit educational material in the light of fresh concerns about upholding egalitarian principles.

 

Will Reviewing the Cartoon Be a Surrender to Attacks on Academic Freedom?

One question is being asked: “If we agree to review this cartoon in response to hurt dalit sentiment, tomorrow will we able to protest and object when right-wing groups demand deletion of anything claiming ‘hurt’ to hegemonic ‘Hindu sentiment’, as the saffron right routinely does?” This argument is flawed. There is a world of difference between amending a textbook to appease certain political or social groups, and between doing the same to uphold democratic principles and egalitarian values. After all, when the saffronised textbooks of the BJP regime were replaced, was it an act of censorship or ‘appeasing’ minority sentiment – or was it a necessary act of correcting bias? This time, too, the cartoon should be reviewed, not only because dalits say it hurts them, but because there is a possibility that it goes against egalitarian values and is not sufficiently sensitive to the dominant discriminatory culture that prevails in society.

Would review of the cartoon amount to denial of freedom of artistic or academic expression? No, because textbooks should be a collective endeavour, seeking to encourage and uphold democratic values and egalitarian principles. This particular textbook too is a product of such a process – and there is nothing undemocratic about revisiting that process in the light of fresh concerns about egalitarian values.

Kapil Sibal has hinted that all cartoons that ‘disparage’ any political leaders might be reviewed, and now other MPs too have objected to all the cartoons in the textbook, on the grounds that they show politicians ‘in a bad light’, and is therefore ‘dangerous for democracy’! This is preposterous and must be opposed tooth and nail. All public figures are legitimate subjects for lampoons, and banning such would amount to banning dissenting voices. Most cartoons in the textbook under question actually strengthen democracy by encouraging a questioning rather than reverential mindset in students. In this context, this particular cartoon of Ambedkar and Nehru should be reviewed, not because it is critical of leaders, but to investigate if it has a potential to reinforce discriminatory caste stereotypes, and to replace it in case it does so.

This particular cartoon in the textbook should therefore be subjected to a serious process of review by an appropriate panel of academics including the authors and other experts including leading dalit intellectuals. And if the cartoon is found wanting in sensitivity to existing discriminatory caste stereotypes in society, it should be replaced.

 

Issued by All India Students’ Association (AISA) and Left and Democratic Teachers’ Forum (LDTF) 


Contact: aisahq@gmail.com,