April 2011

Vol 55

Chief Editor : Neeta Prasad

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Editor : Manogyan R. Pal

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Rig Veda

CONTENTS
Tribal Neglect and Limitations of
Budget-centric Approach to Development
N C Saxena........................................................................................5
Providing an Improved Environment for
Human Rights in The Country
Justice K G Balakrishnan.................................................................10
Evaluating the Status of
Women Rights in India
Girija Vyas.......................................................................................14
Juvenile Justice System in India
Savita Bhakhry.................................................................................16
Right to Corruption Free Governance
Arvind Kejriwal...............................................................................21
Best Practices
A journey of a different kind
Kunzang Dolma...............................................................................25
Human Rights Law in India:
Right to Water and Social Justice
Sarasu Esther Thomas . ...................................................................27

J&K Window . ..........................................................................30

Human Rights and the Role of Judiciary
Pravin S Bhagdikar..........................................................................31
Social Justice in the Indian Context
Shriram Yerankar.............................................................................35
Demographic Transition and Care
for the Elderly
P K Sujathan.....................................................................................38
North east diary.................................................................41
Educational Rights of Children
with Special Needs
Adya Shakti Rai...............................................................................42
Judiciary and Social Justice
Mritunjay Srivastava........................................................................46
Shodh Yatra
Self Dispensing Jug.........................................................................48
do you know?
PROTECTING HUMAN RIGHTS IN INDIA . ............................51

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YOJANA April 2011

About the Issue

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

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

YE-4/11/4

YOJANA April 2011

Rights and Justice

View Point

Tribal Neglect and Limitations of

Budget-centric Approach to Development
N C Saxena

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

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

result of their relative isolation. Postindependence, the requirements of

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

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

As tribal people in India

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

Land alienation

Indebtedness

Relation with forests, and

government monopoly
over MFPs, and nonimplementation of the Forest
Rights Act, 2006

Ineffective implementation of
Panchayats (Extension to the
Scheduled Areas) Act of 1996
(PESA, 1996) for Schedule V
areas

Involuntary displacement due

to development projects and
lack of proper rehabilitation

Shifting Cultivation, such as

podu

Poor utilisation of government

funds, and

Poor delivery of government

programmes

These issues needing urgent

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

do not get adequate attention. The

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

governments to ensure better

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

Plan expenditure against budget provision for the Ministry of Tribal

Affairs (In crore Rs.)
Year

Budget
Estimates
(BE)

Revised
Estimates (RE)

Expenditure

% age of
expenditure over
BE

2006-07

1656.90

1652.68

1647.37

99.42

2007-08

1791.71

1719.71

1524.32

88.63

2008-09

2121.00

1970.00

1805.91

85.17

2009-10

3205.50

2000

1996.79

62.35

2010-11

3206.50
YOJANA April 2011

funds. MOTA should improve

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

MOTA was asked to oversee

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

pressure on other Ministries that

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

inform GoI how and why tribals

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

of non-monetary policies (such as

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

There seems to be an obsession

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

Yojana
Forthcoming
Issues

(E-mail :naresh.saxena@gmail.com)

May 2011
&
June 2011

May 2011
Handlooms and Handicrafts
June 2011
Aadhar

YOJANA April 2011

YE-4/11/3

YOJANA April 2011

Rights and Justice

Perspective

Providing an Improved Environment for

Human Rights in The Country
Justice K G Balakrishnan

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

While human rights

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

and acquisitiveness of its more

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

The author is Former Chief Justice of India & Chairperson, NHRC

10

YOJANA April 2011

the Directive Principles of State

Policy. Social justice has become
a pressing issue across the world,
especially in the larger context of
globalization, which is altering
traditional roles and relationships
between states and their citizens
and throwing up multiple
challenges to the realization of
socio-economic justice, whether
in the form of the devastating
financial crisis, the rising cost of
essential food commodities, or the
growing influence of transnational
bodies such as the WTO, IMF,
World Bank and Multinational
Corporations.

repeated. This system wanted to

protect civil and political rights
of people and ensure that all
nations were committed to this.
At the same time, the international
community also had the obligation
of fulfilling certain positive rights,
like economic, social and cultural
rights. These positive rights
required positive action involving
the use of resources and in 1948,
Universal Declaration of Human
Rights was adopted by the United
Nations which included both
civil and political rights as well
as economic, social and cultural
rights.

Human rights have been

recognized as standards of
achievements and norms of
behaviors of all members of society,
in particular the Government and
its agencies. Human Rights form
the foundation of society, and
without its observance, society
would disintegrate. Society can
be maintained only by protecting
and promoting dignity of human
beings.

It was realized that the

distinction between the civil and
political rights and economic,
social and cultural rights was
artificial and thin. Human rights
needed to be considered in totality
as human dignity is by its nature
indivisible. It was not enough
merely to protect individual rights
like civil, political, economic
etc, without looking at the whole
picture, as people were doing.
We needed protection that was
sustainable. Adequate steps
needed be taken to build up
mechanisms to safeguard these
human rights in entirety.

The basic Charter of Human

Rights is found in Magna Carta,
American War of Independence
and French Revolution. They
were mostly in the form of negative
rights, i.e., State shall not interfere
with the enjoyment of certain
basic rights. But after the Second
World War, attempts were made
to build an international system
so that holocaust of war was not
YOJANA April 2011

The developing countries

sought for an equal status
with other nations. This led
to the Declaration of Right to
Development in 1986, which
was adopted by the United

Nations with an overwhelming

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

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

fear, repression, discrimination,

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

from the Koraput, Bolangir and

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

for the historically marginalized

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

on corruption vigorously, and

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

Efforts are thus essential to

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

Rights and Justice

Perspective

Evaluating the Status of Women

Rights in India
Girija Vyas

here is no doubt that

we are in the midst of
a great revolution in
the history of women.
The evidence is
everywhere; the voice of women
is increasingly heard in Parliament,
courts and in the streets. While
women in the West had to fight
for over a century to get some of
their basic rights, like the right
to vote, the Constitution of India
gave women equal rights with men
from the beginning. Unfortunately,
women in this country are mostly
unaware of their rights because
of illiteracy and the oppressive
traditions.

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

The words of Dr Ambedkar,

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

context in all sectors particularly in

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

The author is Chairperson, National Commission for Women.

14

YOJANA April 2011

all, the Constitution imposes a

fundamental duty on every citizen
through Articles 15 (A) (e) to
renounce the practices derogatory
to the dignity of women.
All these are fundamental rights.
Therefore, a woman can go to the
court if one is subjected to any
discrimination. When we talk about
constitutional rights of women in
India, we mainly refer to those
areas where there is a tradition
or tendency for discrimination
against women, and special laws
have been formulated to fight those
tendencies. The most important
issues are those pertaining to
marriage, children, abortion, crimes
against women, and inheritance.
Women have now not only
found their place in work places
but are also party to governance.
In recent years there have been
explicit moves to increase womens
political participation. Women
have been given representation
in the Panchayati Raj system as
a sign of political empowerment.
There are many elected women
representatives at the village council
level. At the central and state
levels too women are progressively
making a difference. Today we
have women Chief Ministers in five
large states of India. The Womens
Reservation Bill is slated to further
strengthen political participation.
Though these are some cases
of political representation of
women, the overall rate of actual
representation of women at the
Indian as well as at the international
parliamentary level is not upto
YOJANA April 2011

satisfaction. The world wide

scenario in respect of representation
of women is much below the
expected and satisfactory levels.
The statistics in regard to world
parliamentarians indicate that there
are 36,330 male MPs in the whole
of world parliaments and female
MPs are only 8, 437 which is only
18%. Regional representation of
average of women MPs in American
countries is 22%, Europe 19%,
Asia 18.5%, Pacific countries
15.3, Arab States 9%.
India has many women in
decision making and leadership
positions who can actually be role
models for others. Our country was
administered by a brave woman
as its Prime Minister for more
than a decade, a woman dignitary
is heading UPA as its Honble
Chairperson and the highest seat
of the President of India is also
presently adorned by a woman
dignitary in addition to there being
many women personalities as
decision makers and Ministers in
the government.
Wo m e n e m p o w e r m e n t i s
essentially a down to top process
rather than a top-down strategy i.e the
strategy for women empowerment
should start from the gross root level.
Genuine women empowerment
also requires women to have a
voice and role in decision making.
Recent experience suggests that
gender planners working towards
empowerment must develop ways
of enabling women themselves to
decide what their gender interests
are and how to bring about change.
Promoting empowerment requires

that organisations review their

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

Rights and Justice

Overview

Juvenile Justice System in India

Savita Bhakhry

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

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

of childrens courts with procedures

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

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

YOJANA April 2011

the nature of offence was serious

and the character of the offender so
depraved as to justify imprisonment
(Ved Kumari: 2004). During this
period, by and large, the welfare
approach was adopted for children
whether delinquent, destitute or
neglected.
Development of Juvenile Justice
System in India
Independence ushered in a new
era for children in the country.
The Constitution of India took
care of survival, development
and protection needs of children
by making relevant provisions in
Fundamental Rights and Directive
Principles of State Policy.
Children Act 1960
The special status accorded to
children in the Constitution and
the fact that there was a substantial
growth in the number of destitute,
neglected and delinquent children
in the wake of partition, saw some
special programmes being taken up
to meet the needs of this group of
children during the First Five-Year
Plan. Industrialization coupled with
urbanization further brought forth
its own set of problems for children.
One of them was increase in cases of
juvenile delinquency in large cities,
the most common offence being
theft. As legislation for dealing with
delinquent children existed only in
few states, the Government of India
enacted the Children Act 1960. The
Act, however, was applicable only
to the Union Territories as it was a
model to be followed by the states
in the enactment of their respective
Children Acts.
The 1960 Children Act, provided
for the care, protection, maintenance,
YOJANA April 2011

welfare, training, education and

rehabilitation of neglected and
delinquent children. For the first
time in India, the Children Act
prohibited the imprisonment of
children under any circumstance. It
provided for separate adjudicatory
bodies a children court and a
child welfare board to deal with
delinquent and neglected children.
The Act also introduced a system
of three-tier institutions, namely,
an observation home for receiving
children during the pendency of
their proceedings, a childrens
home for accommodating neglected
children, and a special school for
delinquent children. It, however,
introduced a sex discriminatory
definition of child. Child in case of
a boy was one who was below 16
years and in case of a girl below 18
years of age. All states subsequently
enacted similar, but not exactly the
same Children Acts. The definition
of the term child differed from state
to state. As a result, delinquent and
neglected children were subjected
to differential treatment emanating
from the diverse conceptions of
child and childhood.
Juvenile Justice Act 1986
The need for a uniform Children
Act across the country paved
the way for the enactment of the
1986 Juvenile Justice Act (JJA).
It promoted the best interest of
the juveniles by incorporating
into its fold not only the major
provisions and clauses of the
Indian Constitution and the 1974
National Policy Resolution for
Children but also the universally
agreed principles and standards
for the protection of juveniles

such as the 1959 United Nations

Declaration of the Rights of the
Child and the 1985 United Nations
Standard Minimum Rules for the
Administration of Juvenile Justice
(Beijing Rules). The JJA overruled
imprisonment of juveniles in police
lock-up or jail. Other than this, it
stipulated two main authorities
a juvenile welfare board and
a juvenile court to deal with
neglected and delinquent juveniles.
It also stipulated establishment of
various kinds of institutions for
the care of juveniles a juvenile
home for the reception of neglected
juveniles, a special home for the
reception of delinquent juveniles, an
observation home for the temporary
reception of juveniles during the
pendency of any inquiry regarding
them, and an after-care home
for the purpose of taking care of
juveniles after they were discharged
from a juvenile home or a special
home. It further guaranteed a wide
range of dispositional alternatives
with preference for family or
community-based placement,
and a vigorous involvement of
voluntary agencies at various stages
of the juvenile justice process. The
basic ideology for adopting this
differential approach was to save
children from devastating ill-effects
of criminalization, penalization and
stigmatization. With the enactment
of the JJA, the welfare approach
gave way to the justice paradigm
(Maharukh Adenwalla: 2006).
But the implementation of the
JJA had many loopholes in terms of
age determination, separate trials,
court proceedings, notification of
charges to parents or guardians,
filing of reports by probation
17

officers, reasons for and length

of confinement, rehabilitation
and after care of juveniles. The
juveniles were often not provided
with a copy of the rules governing
their detention and the written
description of their rights. Many
juveniles housed in institutions run
by the government did not know
the purpose of their stay and the
future of their institutionalization.
Like the 1960 Children Act, the JJA
too promoted a sex discriminatory
definition of a juvenile. Moreover,
most of the states and union
territories who had formulated
their Rules for the implementation
of the JJA were devoid of the basic
infrastructure consisting of juvenile
welfare boards, juvenile courts,
observation homes, juvenile homes,
special homes and after care homes.
They had also not taken up the
required measures for observance of
minimum standards for institutional
care or for the advancement of noninstitutional care, such as foster
care, sponsorship, adoption, etc.
The chasm between reality and the
application of the law was felt all
the more with the adoption of the
1989 Convention on the Rights of
the Child (CRC) and its ratification
by the Government of India in
1992. The provisions of the CRC
with regard to children in conflict
with law were amplified in two
other United Nations instruments
- the United Nations Guidelines
for the Administration of Juvenile
Delinquency (Riyadh Guidelines)
and the United Nations Rules for the
Protection of Juveniles Deprived of
their Liberty (JDL Rules). Both
provide detailed directions about
the processes to be followed by the
18

juvenile justice system in dealing

with persons below the age of 18.
The 1993 World Conference on
Human Rights in Vienna and the
successive adoption of Vienna
Declaration and Programme of
Action which urged States to ratify
and implement promptly the CRC
too made a definitive impact on all
those concerned with the plight of
these children in India including the
government.
Juvenile Justice (Care & Protection
of Children) Act 2000
Taking a cue from all these
developments, the government
recast the JJA so that it could be
in consonance with the CRC and
brought in a new Act, the 2000
Juvenile Justice (Care & Protection
of Children) Act. The passing of this
Act endorsed the justice as well
as the rights approach towards
children and moreover made use of
a better terminology by providing
for juveniles in conflict with law
and children in need of care and
protection. It calls for keeping
both the categories separate pending
their inquiries. This segregation
aims to curb the bad influence on
the child who is in need of care
and protection from the one who
is in conflict with law. The JJA
2000 brings about standardization
in the definition of a juvenile or a
child across the country except for
Jammu and Kashmir. A juvenile
or child is a person who has
not completed eighteenth year of
age. Juveniles in conflict with law
include all those children alleged
to or found to have committed an
offence. They are to be handled by
the juvenile justice board. Children

in need of care and protection cover

a range of at risk children to be
dealt by child welfare committee.
While dealing with juveniles and
children, it gave importance to their
respective families for tendering
of advice and counselling. It
furthermore introduced a wide
range of community placement
options for juveniles and children.
The 2000 Act, though passed with
good intentions, overlooked the
inclusion of certain substantive and
procedural due process rights.
Juvenile Justice (Care and Protection
of Children) (Amendment) Act
2006
JJA 2000 was further amended in
2006 to make it clear that juvenility
would be reckoned from the date of
commission of offence who have
not completed eighteenth year of
age thus clarifying ambiguities
raised in Arnit Das vs State of
Bihar [(2000] 5 SCC 488]. The
amendment also made it clear that
under no circumstances, a juvenile
in conflict with law is to be kept in
a police lock-up or lodged in a jail.
In addition, it stipulated that the
Chief Judicial Magistrate or the
Chief Metropolitan Magistrate is
to review the pendency of cases of
the Board at every six months, and
child protection units should be set
up in states and districts to see to the
implementation of the Act.
National Human Rights
Commission and Measures for
Juvenile Justice System
The National Human Rights
Commission (NHRC) is an
embodiment of Indias concern
for the promotion and protection
YOJANA April 2011

of human rights. Ever since the

NHRC came into existence, it has
been concerned about the plight
of juveniles who come in conflict
with law and children who are
in need of care and protection.
While the Law Division of the
NHRC has been dealing with
complaints; the Policy Research,
Projects and Programmes Division
of the NHRC has been monitoring
the implementation of the related
Act at the national level as well
as studying and recommending
effective application of those
international instruments that intend
to improve the overall functioning
of the juvenile justice system in the
country. Some instances of NHRC
intervention in this regard are given
below.
Deaths and Rapes in Homes set up
under JJA 1986
In September 1996, the NHRC
called for information with
regard to incidents of deaths and
rapes in Homes set-up under the
JJA 1986 within 24 hours of its
occurrence by writing to the Chief
Secretaries/Administrators of all
the States/Union Territories. Later,
in February 2002, the NHRC
modified its existing instructions on
the subject directing that an inquest
by a Magistrate be conducted
immediately in all cases of deaths
in Homes and the report including
comments on possible medical
negligence to be sent to the
NHRC. In case of any allegation
of rape/unnatural offence on any
inmate of the Home, a criminal case
should be registered immediately
against the offending staff member/
officer and a copy of the FIR
YOJANA April 2011

and the supervision note should

invariably be sent to the NHRC.
If any foul play is suspected in the
magisterial inquest, the post-mortem
examination should invariably be
done and the post-mortem report
sent to the NHRC. In all cases of
death of an inmate where the initial
inquest by a Magistrate indicates
some foul-play, magisterial inquiry
should be made mandatory.
Escape of Inmates from Juvenile
Homes
Under this broad head, the
NHRC dealt with 87 cases, where
its attention was drawn to the
escape of several inmates from
the Beggars Homes/Juvenile
Homes/Remand Homes situated
in different parts of Maharashtra.
The Commission pointed out that
it was the state governments duty
to take appropriate measures for
the safe custody of the inmates.
The escape of such a large number
of inmates was indicative of the
fact that there were either serious
infrastructural deficiencies or that
security arrangements were faulty.
The Commission directed that
the state chief secretary should
review the functioning of these
homes with a view to ensuring better
care and avoiding the recurrence
of circumstances leading to such
incidents (NHRC: Annual Report
1998-1999).
Illegal Detention of a Three-yearold Child for Ten Years
A former Member of Parliament
drew the attention of the NHRC
to the plight of a young girl
who had witnessed a murder,
and was thereafter, detained in

police custody for about ten years.

The NHRC immediately took
note of the letter and called for a
report from the Director General
of Police, West Bengal. The report
of the Director General of Police
stated that on 30 March 1990, the
learned Magistrate, Nadia had
ordered that one child, who was
an eyewitness in a case in which
her father had allegedly murdered
her mother, should be lodged at
Liluaha Home and produced in the
court, as and when required. She
was last produced in the court on
20 September 1996, wherein she
failed to identify the accused. In
1992, she was shifted from Liluaha
Home to a Child Care Home (run
by an NGO) on the orders of an
IAS Officer who was also the exofficio Director of Social Welfare
Department, West Bengal, for proper
upkeep, schooling, protection,
care and further rehabilitation of
the concerned child. However,
when the said NGO approached
the learned court for approval of
transfer, the learned Sessions Judge
termed the act as highly irregular
and asked for an explanation from
the Director of Social Welfare for
having transferred the child without
prior approval and intimation to the
court. Subsequently, she was again
sent back to Liluaha Home. Through
its memo dated 1 September 1997,
the Social Welfare Department once
more directed transfer of the child to
a government approved/recognized
NGO Child Care Home for her
education, care and rehabilitation.
The report stated that the court had
not passed any order so far.
The Commission expressed its
shock at the inhuman and apathetic
19

manner in which the case was

handled by the police and other
authorities. It found the very idea
of retaining a girl child, who was
only three years old at the time of
the incident, and considering her
competent to be a witness in a court
of law, and keeping her waiting for
the commencement of the trial for
ten long years, as shocking. The
appalling lack of interest shown by
the authorities in the welfare of the
innocent child resulted in depriving
her of her normal childhood which
could never be regained. No amount
of compensation, the Commission
felt, would be adequate for the
loss she had suffered. However, it
recommended to the Government
of West Bengal to ensure that the
child is suitably rehabilitated and
educated in an SOS Childrens
Home or sent to a reputable
institute run by an NGO in or
around the city of Calcutta, till she
became a major. The Commission
also recommended that a sum of
Rs.50,000/- be deposited in her
name through a court guardian,
the interest of which would be
paid to the institute looking after
her, and the principal amount to be
released to her on her becoming
a major to enable her to settle
in life. Thereafter, a compliance
report from the Government of
West Bengal was received in the
matter (NHRC: Annual Report
1999-2000).
Other Measures
In October 2005, when the
Registrar General of the High Court
of Patna informed the NHRC that
the implementation of the JJA 2000
was extremely poor in Bihar, the
NHRC once again directed that
20

the matter of juvenile justice be

reviewed expeditiously in each
state and union territory. Prior to
this, the NHRC in collaboration
with an NGO (Socio-Legal
Information Centre, New Delhi)
had undertaken a study concerning
the implementation of the JJA 2000
in 16 states. Its findings revealed
that the implementation of the JJA
2000 was poor in all its aspects and
needed to be strengthened.
The NHRC organized a two-day
National Conference on Juvenile
Justice System in India on 3 and
4 February 2007 in New Delhi.
The Conference made a number
of recommendations/suggestions
to improve the functioning of
the juvenile justice system in
the country. It laid stress on the
implementation of the JJA 2006
in both letter and spirit, urging the
states/union territories to establish
the required infrastructure under
the juvenile justice system to
ensure that there is zero pendency
and that the inquiry is completed
within the stipulated period. It also
emphasized on providing requisite
care to ensure protection, growth
and development of children, both
in conflict with law and in need of
care and protection.
Conclusion
Undoubtedly, juveniles in
conflict with law and children in
need of care and protection are
defenseless and they need special
protection. The state guarantees
special treatment to them through
statutory law. However, in practice,
they often get victimized by legal
and procedural entanglements.
They are more prone to human

rights violations at the hands of

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

Rights and Justice

Opinion

Right to Corruption Free Governance

Arvind Kejriwal

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

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

which often runs on the support of

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

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

21

are by and large honest, intelligent

and hard working people. They are
victims of a rotten system. There
was much worse corruption in
Hong Kong in 1970s than we have
in India today. Collusion between
police and mafia increased and
crime rate went up. Lakhs of
people came on the streets. As
a result, the government was
forced to set up an Independent
Commission Against Corruption
(ICAC), which was given
complete powers. In the first
instance, ICAC sacked 119 out
of 180 police officers. This sent a
strong message to the bureaucracy
that corruption would not be
tolerated. Today, Hong Kong has
one of the most honest governance
machinery.
India can also turn around if
we had similar anti-corruption
body.
One thought that so much
public anger was a great political
opportunity for a sincere
government to push for radical
reforms of anti-corruption systems.
However, public criticism seems
to have made little difference
to the present government. For
the Lokpal Bill drafted by the
government, which is being touted
as an antidote to corruption, is an
insult to the whole nation. Rather
than strengthening anti corruption
systems, this bill if passed, will
end up weakening whatever exists
in the name of anti corruption
today. The principal objections
to the governments proposal are
as follows:
22

1. Lokpal will not have any

power to either initiate action
suo motu in any case or
even receive complaints
of corruption from general
public. The general public
will make complaints to the
speaker of Lok Sabha or
chairperson of Rajya Sabha.
Only those complaints
forwarded by Speaker of Lok
Sabha/ Chairperson of Rajya
Sabha to Lokpal would be
investigated by Lokpal. This
not only severely restricts the
functioning of Lokpal, it also
provides a tool in the hands
of the ruling party to have
only those cases referred
to Lokpal which pertain to
political opponents (since
speaker is always from the
ruling party). It will also
provide a tool in the hands of
the ruling party to protect its
own politicians.
2. Lokpal has been proposed to
be an advisory body. Lokpal,
after enquiry in any case,
will forward its report to the
competent authority. The
competent authority will
have final powers to decide
whether to take action on
Lokpals report or not. In the
case of cabinet ministers,
the competent authority is
Prime Minister. In the case of
PM and MPs the competent
authority is Lok Sabha or
Rajya Sabha, as the case may

be. In the coalition era when

the government of the day
depends upon the support
of its political partners, it
will be impossible for the
PM to act against any of
his cabinet ministers on the
basis of Lokpals report. If
the Lokpal made a report
against the PM or any MP
of the ruling party, will the
house ever pass a resolution
to prosecute the PM or the
ruling party MP? Obviously,
they will never do that.
3. The bill is legally unsound.
Lokpal has not been given
police powers. Therefore
Lokpal cannot register an FIR.
Therefore all the enquiries
conducted by Lokpal will
tantamount to preliminary
enquiries. Even if the report
of Lokpal is accepted, who
will file the chargesheet in
the court? Who will initiate
prosecution? Who will appoint
the prosecution lawyer? The
entire bill is silent on that.
4. The bill does not say what
will be the role of CBI after
this bill. Can CBI and Lokpal
investigate the same case or
CBI will lose its powers to
investigate politicians? If
the latter is true, then this
bill is meant to completely
insulate politicians from any
investigations whatsoever
which are possible today
through CBI.
YOJANA April 2011

5. There is a strong punishment

for frivolous complaints.
If any complaint is found
to be false and frivolous,
Lokpal will have the power
to send the complainant to jail
through summary trial but if
the complaint were found to
be true, the Lokpal will not
have the power to send the
corrupt politicians to jail! So
the bill appears to be meant
to browbeat, threaten and
discourage those fighting
against corruption.
6. Lokpal will have jurisdiction
only on MPs, ministers
and PM. It will not have
jurisdiction over officers.
The officers and politicians
do not indulge in corruption
separately. In any case of
corruption, there is always an
involvement of both of them.
So according to governments
proposal, every case would
need to be investigated by both
CVC and Lokpal. So now, in
each case, CVC will look into
the role of bureaucrats while
Lokpal will look into the role
of politicians. Obviously the
case records will be with
one agency and the way
government functions it
will not share its records
with the other agency. It
is also possible that in the
same case the two agencies
arrive at completely opposite
conclusions. Therefore it
YOJANA April 2011

appears to be a sure way of

killing any case.
7. Lokpal will consist of three
members, all of them being
retired judges. There is no
reason why the choice should
be restricted to judiciary.
By creating so many post
retirement posts for judges,
the government will make
the retiring judges vulnerable
to government influences
just before retirement as is
already happening in the case
of retiring bureaucrats. The
retiring judges, in the hope
of getting post retirement
employment would do the
bidding of the government in
their last few years.
8. The selection committee
consists of Vice President,
PM, Leaders of both houses,
Leaders of opposition in both
houses, Law Minister and
Home minister. Barring Vice
President, all of them are
politicians whose corruption
Lokpal is supposed to
investigate. So there is a
direct conflict of interest. Also
selection committee is heavily
loaded in favour of the ruling
party. Effectively ruling party
will make the final selections.
And obviously ruling party
will never appoint strong and
effective Lokpal.
9. Lokpal will not have powers
to investigate any case against
PM, which deals with foreign

affairs, security and defence.

This means that corruption in
defence deals will be out of
any scrutiny whatsoever.
On the face of it, governments
Bill sounds absurd. It is meant to
completely insulate the political
class from any kind of action.
In contrast, civil Society has
drafted an alternate Jan Lokpal
Bill. The first draft was prepared
by Prashant Bhushan, Justice
Santosh Hegde and myself.
The Bill has subsequently been
discussed widely at several
public platforms and improved
on the basis of public feedback.
It has been vetted and is being
supported by Kiran Bedi, Shanti
Bhushan, Anna Hazare, National
Campaign for Peoples Right to
Information (NCPRI) and many
others.
The entire text of the
B i l l i s a v a i l a b l e a t w w w.
indiaagainstcorruption.org Similar
independent bodies called Jan
Lokayuktas have been suggested
for states. The existing Lokayuktas
in some states are advisory and
ineffective.
How will the proposed system
help in curbing corruption? For
this see Chart-1.
A copy of this Bill was sent
to the government almost two
months back, there has been no
response so far. The Government
would be well advised to adopt
the Jan Lokpal Bill and get the
country rid of corruption.
23

Chart-1
Existing System

System Proposed by civil society

No politician or senior officer ever goes to jail despite

huge evidence because Anti Corruption Branch (ACB)
and CBI directly come under the government. Before
starting investigation or initiating prosecution in any
case, they have to take permission from the same bosses,
against whom the case has to be investigated.

Lokpal at centre and Lokayukta at state level will be

independent bodies. ACB and CBI will be merged
into these bodies. They will have power to initiate
investigations and prosecution against any officer
or politician without needing anyones permission.
Investigation should be completed within 1 year and
trial to get over in next 1 year. Within two years, the
corrupt should go to jail.

No corrupt officer is dismissed from the job because

Central Vigilance Commission, which is supposed
to dismiss corrupt officers, is only an advisory body.
Whenever it advises government to dismiss any senior
corrupt officer, its advice is never implemented.

Lokpal and Lokayukta will have complete powers

to order dismissal of a corrupt officer. CVC and all
departmental vigilance will be merged into Lokpal and
state vigilance will be merged into Lokayukta.

No action is taken against corrupt judges because

permission is required from the Chief Justice of India to
even register an FIR against corrupt judges.

Lokpal & Lokayukta shall have powers to investigate

and prosecute any judge without needing anyones
permission.

Nowhere to go - People expose corruption but no action

is taken on their complaints.

Lokpal & Lokayukta will have to enquire into and hear

every complaint.

CBI and vigilance departments lack transparency.

Their functioning is so secret that it encourages corruption
within these agencies.

All investigations in Lokpal & Lokayukta shall be

transparent. After completion of investigation, all
case records shall be open to public. Complaint against
any staff of Lokpal & Lokayukta shall be enquired and
punishment announced within two months.

Weak and corrupt people are appointed as heads of

anti-corruption agencies.

Politicians will have absolutely no say in selections

of Chairperson and members of Lokpal & Lokayukta.
Selections will take place through a transparent and public
participatory process.

Citizens face harassment in government offices.

Sometimes they are forced to pay bribes. One can only
complaint to senior officers. Hardly any action is taken
on complaints because often senior officers also get
their cut.

Lokpal & Lokayukta will get public grievances resolved

in time bound manner, impose a penalty of Rs 250 per
day of delay to be deducted from the salary of guilty
officer and award that amount as compensation to the
aggrieved citizen.

Nothing in law to recover ill gotten wealth. A corrupt

person can come out of jail and enjoy that money.

Loss caused to the government due to corruption will be

recovered from all accused.

Small punishment for corruption- Punishment for

corruption is minimum 6 months and maximum 7
years.

Enhanced punishment - The punishment would be

minimum 5 years and maximum of life imprisonment.

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

24

YOJANA April 2011

Best Practices

A journey of a different kind

Kunzang Dolma

t has been a long

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

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

YOJANA April 2011

The turning point as I can now

see was my participation in a
training programme by a disability
organisation around 10 years ago.
It was essentially an exposure and
sharing of information about the
disability sector of which I had
knowledge. As I watched, the hall
where it was being held slowly
became filled with so many people;
many of them on wheel chairs and
some of them walking with the
support of crutches. As I observed

them, I gradually realized that

many amongst them were unable
to speak; some who could, spoke
in a garbled way.
Suddenly the world that is
inhabited by disabled people became
a reality for me, an uncomfortable
reality. I was amongst them, yet not
part of them. And frankly, in those
initial moments, I was terrified. It
is difficult to explain why, but that
was the dominant emotion in me.
It was as if I was confronting an
ugly reality not outside but within,
a reality that everyone outside
me could see . The beginning of
the session started with a prayer,
which, because of all these thoughts
churning inside me, I was unable
to recite. All I could do was close
my eyes and listen and follow the
hum of the recitation, which was
happening in unison of voices
around me.
Then suddenly it stopped and
there was absolute silence. In that
silence I came to an understanding.
In a flash, it came to me, that it
25

is not they who are disabled. It

was I who was mentally disabled,
clouded by my own prejudices, by
an unfounded fear and perhaps a
misplaced sense of what constitutes
perfection. It was clear that I
had a long way to go in my own
evolution, beginning now! That
was the day that I, a young girl
decided to devote my life to the
cause of disability in my region,
Ladakh
Over the last ten years, I have
made an attempt to understand
the issues related to disability
and started working closely with
the people. I realized that much
of the world has closed their
doors and hearts to the disabled
people. I started to understand
their capabilities and the fact that
they have the potential to do all the
work that the able-bodied people
can do. Given an opportunity, they
are capable of achieving everything
in their lives.
My journey, my search was
greatly enriched by like- minded
groups and individuals with great
commitment and vision to create
a world of equal opportunities,
of dignity of the disabled. I was
associated with the Namgyal
Institute for Research on Ladakhi
Art and Culture (NIRLAC) which
had a unit to promote disability
issues. But gradually many of
those who were concerned with
issues of the disabled felt that a
rights-based approach needs to
be adopted. One that would treat
facilities and special provisions
for the disabled not as a favour or
largesse by the government but by
26

virtue of inalienable rights granted

under our Constitution and the rights
framework formulated by national
and international conventions.
Under PAGAR, Peoples Action
Group for Advocacy and Rights,
we regrouped to begin our work for
being treated at par with all others
in terms of opportunities.
The work took me to remote
villages in Ladakh. It was
during this that I realized that the
discomfort I had initially felt in
that hall surrounded with people of
varying disability was an emotion
that was widespread. People were
hiding their disabled children and
I realized it is because of social
stigma attached to them. Disabled
people hardly ventured out of their
houses, again circumscribed by
these prejudices in society. It was
in the midst of this that we launched
a village to village awareness
campaign on disability, talking to
people, disabled and abled alike
and encouraging them to share
their views and discuss. Gradually
people opened up, questioning the
very social mores that kept the
disabled in a shroud of shame and
secrecy.
This was the beginning then
of not only my own personal
transformation but of a social
transformation. Since then with
time and effort, the disabled started
participating in the mainstream
activities in the villages. This
did not happen overnight. It took
more than six to seven years. But
it gave us the energy to take the
issue to another level, one that
could effect change in the ground

situation. After all, there are a

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

Rights and Justice

Overview

Human Rights Law in India: Right to

Water and Social Justice
Sarasu Esther Thomas

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

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

The States commitment to access

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

Mission at the institutional level and

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

Quantity
3
5
15
7
10

(Source ARWSP Guidelines http://ddws.

nic.in/popups/arwsp_pop.htm accessed
on 20.02.2011)

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

27

However, schemes and policies

of the state are not enough. There
must be a clear statement of a
human right to water so that it can
be claimed as a right rather than a
privilege which the state grants.
The question which next arises is
whether there is such a right in
India.
The right to water in the
Constitution of India
Most claims to human rights
are founded on the basis of the
fundamental rights chapter in the
Constitution of India as fundamental
rights are justiciable and can be
enforced. The Preamble of the
Constitution is often described as
setting up a welfare State. While
providing basic needs such as water
would be within the necessary
functions of such a state, the
Fundamental Rights Chapter is
silent about a right to food or water.
While the right to life is mentioned
(Article 21), the dimensions of this
right are not laid down in detail
and water is not mentioned. The
only direct reference made is in
the prohibition of discrimination
(Article 15) in accessing places and
facilities for the use of the general
public including wells.
In the Directive Principles of
State Policy too, there are no
direct references to a right to water
although the state is required to
work towards raising the standard
of living of people and improving
public health (Article 47). Also,
since Directive Principles of State
Policy are not justiciable, they
28

become difficult to implement as a

matter of right.
The angle from which the
Constitution deals with water
is from the angle of division
of powers between the Centre/
Union, the State and after 1992,
the Local Government. Thus while
standard setting on water pollution,
insecticides and pesticides is with
the Centre, interstate water disputes,
irrigation is a State subject and so are
important areas including sources
of water such as groundwater. The
Local Government has the power
to make provision for water and
to make rules at the local level
on use of water. In this scheme of
distribution of powers, there is no
mention made of a right to water.
Development of human rights law
on right to water by the judiciary
The architect of the right to
water in India is the judiciary. Many
rights have been brought within the
ambit of the right to life (Article 21)
by reading them into the scope of
life . The first landmark decision
was in Francis Coralie Mullin v
the Administrator, Union Territory
of Delhi(1981(2) SCR 516) where
the Supreme Court clearly said that
the right to life included the right
to live with human dignity. It also
made a passing observation that it
also includes the bare necessaries
of life. The right to water was not
specifically mentioned.
In 1990, the Kerala High Court
stated in Attakoya Thangal v Union
of India that the right to sweet
water was part of the right to life

as water is necessary for life. This

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

a law by itself will not work,

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

of water used especially for

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

case (Perumatty Gram Panchayat

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

J&K Window
The Road to Prosperity

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

Development of Rural Infrastructure

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

YOJANA April 2011

Rights and Justice

Perspective

Human Rights and the Role of Judiciary

Pravin S Bhagdikar

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

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

All states have ratified at

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

concrete expression to universality.

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

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

31

rights and fundamental freedoms of

individuals or groups
Non-discrimination is a crosscutting principle in international
human rights law. The principle
is present in all the major human
rights treaties and provides the
central theme of some international
human rights conventions such as
the International Convention on the
Elimination of All Forms of Racial
Discrimination and the Convention
on the Elimination of All Forms of
Discrimination against Women.
The principle applies to
everyone in relation to all human
rights and freedoms and it prohibits
discrimination on the basis of a list
of non-exhaustive categories such
as sex, race, colour and so on. The
principle of non-discrimination
is complemented by the principle
of equality, as stated in Article 1
of the Universal Declaration of
Human Rights: All human beings
are born free and equal in dignity
and rights.
Human rights & Indian
Constitution :
The Universal Declaration
of Human Rights in 1948
by United Nation had a great
impact on the constitution of
the newly independent India. A
separate chapter on fundamental
rights has been included in the
Constitution which is similar to
the Declaration of Human Rights.
Independent India has no history
of movement for Human Rights
32

as the provision has been already

made in the Constitution in the
form of fundamental rights. The
doctrine of human rights contains
equality, justice, liberty and
fraternity, which are also the basis
of fundamental rights. Article 21
of our Constitution provides all
this with the protection of Article
32 by which an individual can
draw attention of Judiciary towards
any injustice done on the basis
of sex, race, caste and religion.
Our constitution has provided a
mechanism for implementation of
such rights and laws.
The Indian Judiciary has played
a significant role in this context
and extended the scope and limit
of human rights with the help
of Directive Principles. While
widening the definition of Article
21, [Right to live] judiciary has
included subjects like health,
education, medical aid, food etc,
which are basic requirements
of human being. We know the
importance of human rights and
our Constitution and judiciary
are committed towards justice
for common people. We are also
committed towards the declaration
of Human Rights for all made by
United Nations.
Judicial Response towards
Human rights :
Every legal system is based on
three basic principles i.e. justice,
equity and rule of law. Every
person possesses certain rights that
may be fundamental or natural,

given to him by law. To protect

these rights and to make amends
for wrong , we have established
the judicial system. The Indian
judiciary has established several
norms, laws and guidelines by
delivering several verdicts in the
context of human rights and social
justice.
In a recent case of honour
killings of a young couple by
the Khap Panchayat in Haryana,
for having married within the
same gotra, the Karnal Sessions
Court passed a landmark order on
30.03.2010 awarding death penalty
to the five persons for the double
murder. In Lata Singh v. State Of
Uttar Pradesh [AIR 2007 SC] the
apex court held that we sometimes
hear of honour killings of such
persons who undergo intercaste
or inter religious marriage of their
own free will. There is nothing
honourable in such killings, in fact
they are nothing but barbaric and
shameful acts of murder committed
by brutal, feudal minded persons
who deserve harsh punishment.
The right to live in peace
is a basic and essential right
in the context of human rights
and freedoms. Article 21 of the
Constitution of India, provides that,
No person shall be deprived of
his life or personal liberty except
according to procedure established
by law. Life in Article 21 of
the Constitution has much wider
meaning which includes right to
live with human dignity, right to
YOJANA April 2011

livelihood, right to health, right to

pollution free air, etc. Right to life
is fundamental to our very existence
without which we cannot live as
human beings and includes all those
aspects of life which go to make a
mans life meaningful, complete
and worth living. It is the only
article in the Constitution which
has received the widest possible
interpretation. Supreme Court,
through its various decisions has
elaborated the concept of Article
21.

human dignity and all that goes

along with it, namely, the bare
necessaries of life such as adequate
nutrition, clothing and shelter over
the head and facilities for reading,
writing and expressing oneself in
diverse forms, freely moving about
and mixing and commingling with
fellow human beings.Thus, the
Supreme Court has interpreted
Article 21 in a widest possible
manner and included within its
ambit the right to live with human
dignity.

In the Delhi Pollution Case,

the Supreme Court held in 1989
that Article 21 of the Constitution
guaranteeing the right to life must
be interpreted to include the right
to live in a healthy environment with
minimum disturbance of ecological
balance, and without avoidable
hazard to [the people] and to their
cattle, house and agricultural land,
and undue affection of air, water,
and environment. The subsequent
ruling in Charan Lal Sahu v.
Union of India expanded upon this
decision when Justice Kuldip Singh
described the governments role in
the protection of fundamental rights:
it is the obligation of the State to
assume such responsibility and
protect its citizens. The Court held
that the governments obligation to
protect fundamental rights forces it
to protect the environment.

Protection of Human Rights and

PIL :

In Francis Coralie Mullin v

Administrator, Union Territory of
Delhi, the Honourable Supreme
Court stated that, the right to
life includes the right to live with
YOJANA April 2011

The Indian judiciary played a

very active role by entertaining
Public Interest Litigation which
provides an opportunity to the
judiciary to examine the socioeconomic and environmental
conditions of the oppressed, poor
and the downtrodden people
through PIL. Under the Article 32
of the Constitution the Supreme
Court has directed the government
to implement the fundamental
right to life and liberty and execute
protection measures in the public
interest. In the case of Chaitanya
Vs. State of Karnataka [AIR,1986
SC 825] Supreme Court also
invoked jurisdiction under article
226 of the Constitution and has
given authority to High court
regarding PIL.
The Public Interest Litigation
has become a safeguard to Human
Rights. The principle and practice
of PIL has been followed by High

Courts and the Supreme Court in

a number of cases. The famous
cases where the court has issued
direction under PIL and protected
the human rights of individuals
are Bihar [Bhagalpur] under trail
criminal case, the case of Bombay
pavement dwellers , Bandhua
Mukti Morcha Vs. Union of India.
etc. Chief Justice P.N. Bhagwati
observed, where a legal wrong
or legal injury is caused by a
person to a determinate class
of persons, who by reasons of
poverty, helplessness or disability,
or socially and economically
disadvantaged position, is unable
to approach the court for relief, any
member of the public can maintain
an application for appropriate
direction. [S.P. Gupta Vs.Union
of India,SC 1982]
The first reported case of PIL
in 1979 focused on the inhuman
conditions of prisons and under
trial prisoners. In Hussainara
Khatoon v. State of Bihar, [AIR
1979 SC 1360] the PIL was filed
by an advocate on the basis of
the news item published in the
Indian Express, highlighting the
plight of thousands of under trial
prisoners languishing in various
jails in Bihar. These proceedings
led to the release of more than 40,
000 under trial prisoners. Right to
speedy justice emerged as a basic
fundamental right which had been
denied to these prisoners. The
same set pattern was adopted in
subsequent cases.
33

In 1981 the case of Anil Yadav

v. State of Bihar, [AIR 1982 SC
1008] exposed the brutalities of the
police. Newspaper reports revealed
that about 33 suspected criminals
were blinded by the police in
Bihar by putting the acid into
their eyes. Through interim orders
Supreme Court directed the state
government to bring the blinded
men to Delhi for medical treatment.
It also ordered speedy prosecution
of the guilty policemen. The court
also read right to free legal aid
as a fundamental right of every
accused.

decisions based solely on the basis

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

YE-4/11/2

Independence of the judiciary

in India stems from the separation

of powers between the executive,

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

34

YOJANA April 2011

Rights and Justice

Overview

Social Justice in the Indian Context

Shriram Yerankar

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

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

and Guardians of public service),

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

The author is Associate Professor, Deptt. Of Political Science, Jijamata Mahavidyalaya, Buldana (Maharashtra).
YOJANA April 2011

35

and the result was the caste system.

The Platonic concept of justice and
Hindu caste system might have
created social justice in society
where population was thin and
life was simple. It is unsuited to
the present day problems. The
concept of justice is dynamic, as
society itself is dynamic. What
our forefathers considered just, we
might consider unjust. For offences
for which people were hanged in
the past, we impose a lenient fine
today. Aristotle justified slavery;
Americans fought a war to do away
with it. Social justice is relative, its
standards are highly variable with
time and place but life without
some principle of Justice has never
been lived and is not livable.
In modern times, man as the
measure of all things has come to
occupy the most important position
in any concept of social justice in
modern democracies. In democracy,
the individual is treated as an end
in himself, and any concept of
social justice must be based on
this basic principle. Social Justice
means that every individual is
given full opportunities to develop
his capacities and this opportunity
is given to maximum number of
persons in society. The creation of
social justice means the creation
of an environment in which every
individual has got unreserved and
unhindered opportunity for physical
and intellectual development. In
removing disabilities arising from
caste, sex, race, colour, creed,
religion or nationality, and providing
opportunities in a positive way with
a view to developing individual
faculties lies the essence of social
justice.
36

Social Justice in India

To begin with, let us turn to the
Preamble of the Indian constitution
which stands for Justice, social,
economic and political. The
constitution framers wanted social
justice in a comprehensive sense.
Let us analyse the implications
of economic, political and social
justice in the context of India.
Economic Aspects
In the constitution the basic
objectives of justice were set forth
as The Directive Principles of
State Policy which stated that The
state shall strive to promote the
welfare of the people by securing
and protecting, as effectively as it
may, a social order in which justice,
social, economic and political,
shall inform all the institutions of
national life.
Further that The State shall, in particular,
direct its policy towards
securing
(a) That the citizens, men and
women equally, have the
right to an adequate means of
livelihood
(b) That the ownership and control
of the material resources of the
community are so distributed
as best to serve the common
good;
(c) That the operation of the
economic system does not
result in the concentration of
wealth and means of production
to the common detriment.
Thus the concept of social justice
on the economic side demands a
guarantee of: (i) work to every able

bodied citizen; (ii) satisfaction of

basic needs of every individual and
(iii) provision of equal opportunity
to every citizen to develop his
potential. The disparities in income
should not be such as to create an
unbridgeable gulf between the rich
and the poor leading to conflicts
and unrest. To achieve economic
Justice, the government in India
has adopted a socialist pattern
of society as its goal, and it is
practicing planned development
of the economy of the country.
The basic premise in Indias
Five Year Plans is that, through
democracy and widespread public
participation, development along
socialist lines will secure rapid
economic growth and expansion
of employment, reduction of
disparities in income and wealth,
prevention of concentration of
economic power, and creation of
the values and attitudes of a free
and equal society. However, in
spite of years of planning, even the
minimum economic requirements
of social justice have not been
achieved in India. Millions of able
bodied citizens are unemployed,
millions are living in miserable
conditions, suffering hunger and
semi-starvation; the gulf between
the rich and the poor is widening.
Prices are rising higher and higher,
and a large percentage of the
population finds it difficult to make
ends meet.
Political Aspect
In the field of politics, justice
means: equality before law,
enjoyment of civil liberties and
equality of opportunity. One may
emphasize here the following in
particular:
YOJANA April 2011

(1) The state should not distinguish

between citizen and citizen on
the basis of sex, creed, colour,
caste, or religion.
(2) The state should not give any
preferential treatment on the
basis of religion.
(3) Rule of law with independent
and impartial judiciary as a
protector of fundamental rights
should be guaranteed.
(4) Basic freedoms like freedom of
speech, expression, criticism,
freedom to hold meetings
and organize parties, freedom
of the press etc.; should be
guaranteed.
Freedom is the corner stone
of any concept of justice. Closed
societies, which deny freedom
to individuals, also deny social
justice. The concept of social justice
prevails in real democracies or open
societies because they treat man as
an end and provide him freedom to
develop his personality. No doubt
we have all the ingredients of
social justice in its political aspect,
but many find the wide powers
of the executive, e.g. Emergency
Proclamation a threat to freedom.
Further, the Preventive Detention
Act is the greatest danger to
individual liberty in India.
Social Aspects
Every individual in society
should feel that he/she is an
important and useful member, that
he/she has full opportunities to
develop his/her faculties, that there
are no disabilities attached by birth,
and that he/she is not subjected to
discrimination on the basis of sex,
colour, creed, caste or religion.
Unfortunately in India there are
YOJANA April 2011

sections of society which are denied

social justice either on the basis of
sex, or birth or religion. Scheduled
Castes and Scheduled Tribes
have been suffering great social
injustices and disabilities by birth.
They are condemned to a position
of inferiority and subordination
to the higher castes. Our social
heritage is partly responsible for
this unfortunate phenomenon, but
it is also our fault that we have
not changed with the changing
times. Caste system continues to
be oppressively hierarchical in
many parts of the country, despite
constitutional safeguards and laws
against it.
Another important section of
society which has suffered a great
deal of social injustice in India
is women. This again is both due
to our social traditions and due
to our resistance to change. It is
heartening to note, however, that
the conscience of India has already
awakened to this aspect of social
injustice and it is on the way out
gradually.
Another hindrance in the way
of achieving social justice in India
is the wrong interpretation of fate
and Karma. People think that
their position in society is predetermined by their past actions.
If they are poor or treated badly
by society , they blame it on their
past sins and bad actions rather
than fighting injustice and making
efforts to improve their lot. This
attitude needs to be changed in
order to create a proper climate and
atmosphere for achieving social
justice.
To sum up, if we want to ensure
social justice in the country in its

totality, that is on the economic,

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

37

Rights and Justice

Perspective

Demographic Transition and

Care for the Elderly
P K Sujathan

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

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

The Indian Scenario

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

the year 1951, the sequence of high

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

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

38

YOJANA April 2011

However, it is disturbing to note

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

slated to submit its recommendation

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

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

out health services to people.

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

Population Years No. of

aged 60+ reached years
reaches
required
specified
% of total
population
8%

1986 -

10%

1996 10

12%

2011 15

14%

2016 5

16%

2021 5

18%

2026 5

Source: Leela Gulati and S. Irudayarajan

(1988) Population aspects of ageing
in Kerala, their economic & social
consequences, Centre for Development
studies, Thiruvananthapuram.

Source: Technical Group on Population Projections, Registrar General of India

(RGI) 1996

YOJANA April 2011

It is evident from table 1. that

while ten years were required
for the additional increase of
2% of 60+ elderly during 1986
1996 and fifteen years during
1996-2011, for every subsequent
increment of 2% of elderly since
2011, only five year period is
enough. It, therefore, reminds us
that the momentum of ageing is
gaining speed in Kerala.
39

Care of the Aged

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

basic needs like food, shelter and

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

probably help matters. In providing

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

North east diary

North-East Rail Link

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

PMGSY in Arunachal Pradesh

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

41

Rights and Justice

Perspective

Educational Rights of Children with

Special Needs
Adya Shakti Rai

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

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

speech, physical, cognitive, or

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

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

YOJANA April 2011

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

atmosphere of exclusion rather,

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

The Declaration of the Rights

of Mentally Retarded Persons,
(1971)

The Declaration of the Rights of

the Disabled Persons (1975)

Warnock Committee Report

(1978)

IYDP- National Draft Plan

for Education of Handicapped
(1981)

World programme of Action

Concerning Disabled
Persons(1982)

Decade for Disabled Persons

(1983-1992)

The Asian & Pacific Decade of

the Disabled (1993-2002)

International Conventions
regarding education of children
with special needs

UN Convention on The Rights

Of The Child (1989)

The Jomtien World Declaration

on Education for All (1990)

The right to education has

been recognized in several

YOJANA April 2011

UN Standard Rules on the

Equalization of Opportunities
for Persons with Disabilities
(1993)

The Vienna Declaration

(1993)

Salamanca Statement and

Frame work For Action
(1994)

Biwako Millennium
Framework for Action (2002)

World Education Forum

(Dakar, 2000)

Beijing Declaration of
the Rights of People with
Disabilities (2000)

International Convention on
the Rights of Persons with
Disabilities(2006)

Together, these documents

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

to this insertion the existing Art

45 in the Directive Principles was
replaced and made applicable to
children in the 0-6 age group.

Ramamurthy Committee
(1991)

Program of Action (POA)

(1992)

Article 29(2) Provides that no

citizen shall be denied admission
into any Educational Institution
maintained by the state.

Following are the legislations

in this regard

Article 41 the state shall,

within the limits of its economic
capacity and development, make
effective provision for securing
the right to work, to education and
to public assistance in cases of
unemployment, old age, sickness
and disablement, and in other cases
of undeserved wants.
Article 45- Directs the state
to provide free and compulsory
education for all the children until
they attain age of 14 years.
Article 46- shall promote with
special care the educational and
economic interests of the weaker
sections of the people, and, in
particular, of the Scheduled Castes
and the Scheduled Tribes.
Our constitutional commitments have been reflected through
various commissions of education
appointed at different points of
time.

Rehabilitation Council of India

Act (RCI -1992)

Persons with Disabilities (Equal

Opportunities, Protection of
Rights & Full Participation)
Act (1995)

National Trust for the Welfare of

Persons with Autism, Cerebral
Palsy, Mental Retardation and
Multiple Disabilities (1999)

National Curriculum
Framework (NCF-2005)

Action Plan for Inclusive

Education of Children and
Youth with Disabilities (
2005)

National policies on Disabilities

(2006)

Schemes Run by Government of

India:
l

Integrated Education of
Disabled Children (IEDC1974)
Project Integrated Education
for the Disabled (PIED1987)

Indian Education Commission

(1964-66)

District Primary Education

Programme (DPEP-1994)

National Policy for Children

(1974)

National Policy on Education

(NPE) (1986)

Behr-ul-Islam Committee
(1987)

National Handicapped Finance

and Development Corporation
(NHFDC-1997) Scheme of
Assistance to Disabled Persons
for Purchase/Fitting of Aids and
Appliances (ADIP) Scheme

44

Sarva Shiksha Abhiyan

(Education For all Campaign)
(2000-2001)

National Institutes for Disabled

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

National Institute for the

Visually Handicapped (NIVH),
Dehradun.

National Institute for

Orthopedically Handicapped
(NIOH), Calcutta.

National Institute for

Rehabilitation Training and
Research (NIRTAR), Olatur,
Cuttack.

Pandit deen Dayal Upadhyay

National Institute for the
Physically Handicapped (IPH)
New Delhi.

Ali Yavar Jung National

Institute for the Hearing
Handicapped (AYJNIHH),
Mumbai.

National Institute for the

Mentally Handicapped
(NIMH), Secunderabad.

National Institute for the

Empowerment of Persons with
Multiple Disabilities.

Though several international

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

YOJANA April 2011

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45

Rights and Justice

Student speak

Judiciary and Social Justice

Mritunjay Srivastava

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

enforceable by court of law.

However, our judiciary has left no
stone unturned to enforce DPSP
and invented new ways, wherever
needed, to enforce it. Wherever
the Executive failed in enforcing
DPSP, the Judiciary stepped in.
The advent of Public Interest
Litigation (PIL) jurisdiction under
Article 32 coupled with liberal
interpretation of various Articles
like Art. 14,19,21,32 and 226 etc.
has ushered in a new era in modern
India, where Judiciary is not only
seen as guardian of the Constitution
but also as guardian of poor and
marginalized sections of society.

Our constitution elaborately

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

In Consumer Education &

Research Centre v. Union of India
AIR 1995, Honorable Supreme
Court elaborated on the theme
of social justice envisioned in
the Preamble to the Constitution
and Part IV. The Court held that
social justice is the arch of the
Constitution which ensures life to
be meaningful and liveable with

Our judiciary has

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

The author is a student of Masters of Public Administration from University of Lucknow.

46

YOJANA April 2011

human dignity. Social justice is

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

The right to live with human

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

YOJANA April 2011

Right to life includes the

right to enjoy pollution free
water and air and environment
(Subhash Kumar v. State of
Bihar AIR1991)

Right to health and social justice

has been held to fundamental
right of workers. This right has
been derived from Art. 21 read
with Art 39(e), 41, 43 and 48A.
(Consumer Education v. Union
of India AIR1995).

Right to Shelter included in

Right to life. (Chameli singh
v. State of UP AIR 1996).

Right to Education. Derived

from Art. 21 read with Art. 41
& 45 (Unnikrishnan v. State of
A.P AIR 1993)

Right to life includes right

to livelihood. The Supreme
Court has taken recourse to
Art. 39(a) to interpret Art. 21
to include this right. (Olga
Tellis v. Bombay Municipal
Corporation)

Right to access roads for

hilly areas. (State of Himachal
Pradesh v. Umed Ram AIR
1986)

These are a few examples of

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

socio-economic policy envisaged in

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

47

Shodh Yatra

Self Dispensing Jug

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

It was found that

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

Since his childhood, Sukomal

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

sufficiently hard to convert them

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

in Anand Bazaar Patrika, he

ascertained his eligibility for
participation and started thinking
about different ideas. Finally a
few months later, he submitted
his idea about the self dispensing
jug.
The idea

four switches. These switches

would be connected to a valve,
which opens when the switch
gets pressed due to the weight
of the glass placed on it. As a
result, the liquid from the main
container would flow out through
the dispenser into the glass. The
liquid would only be dispensed till

Sukomal used to go to the

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

the time the glass is on the base.

Initially, Sukomal sent only an
illustrated idea to NIF but later
made a model in paper and sent
it across. Taking out time from
his regular work, it took him four
months to develop the model.
NIF evaluated the feasibility
as per the models description
and through its Value Addition
and R&D fund, supported him
financially to develop a working
prototype. Prior to the support,
elaborate search was performed to
ascertain the novelty of the idea.
It was found that though different
dispensing mechanisms and jugs
of different shapes and design
existed, no such jug was available,
which had multiple dispensers
activated by mechanical switches.
NIF also filed a patent in the name
of Sukomal for this apparatus
assembly.
Sukomal did not have any
formal training in fabrication.
It took him time to understand
the characteristics of different
materials that he could possibly
use to make the apparatus. Working

slowly over another few months

he was able to complete the
prototype of the self dispensing
jug apparatus made in tin using
GI and aluminium pipes.
Being his first attempt, the
finish was not up to the mark.
Also in execution, two of the four
dispensers failed as the joints
were not properly done and the
spring attachments were improper.
However, with some design
inputs, the overall look, feel and
efficiency could be improved. NIF
has engaged experts for working
on the concept of Sukomal. This
self dispensing jug apparatus can
be used in restaurants, homes,
public water/milk booths or
even in ration shops or chemical
industry to dispense liquids/
chemicals.
While developing the self
dispensing jug, Sukomal also
conceived an idea about an
economical manually operated
mixer, which can be used in
kitchens for smoother mixing of
different ingredients or for any
other mixing or blending task.
He is quite happy and satisfied
about his work and looks forward
to complete his self dispensing
jug and then with the help of
NIF, move on to do some other
innovations, which can be used
by masses at large.
q
(E-mail : campaign@nifindia.org,
www.nifindia.org)
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YOJANA April 2011

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

Declaration and Plan of action were

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

the 16th December, 1966), and

enforceable by courts in India.
The Act provides for the
constitution of a National Human
Rights Commission, State Human
Rights Commission in States and
Human Rights Courts for better
protection of human rights and
for matters connected therewith.
What functions does the Act
assign to the National Human
Rights Commission ?
According to the Act the
Commission is required to
inquire, into violation of human
rights, or abetment or negligence
in the prevention of such violation,
by a public servant; intervene in
any proceeding involving any
allegation of violation of human
rights pending before a court with
the approval of such court; visit,
any jail or any other institution
under the control of the State
Government, where persons are
detained or lodged for purposes
of treatment, reformation or
protection to study the living
condition of the inmates and
make recommendations thereon
; review the safeguards under
the Constitution or any law
for the time being in force for
the protection of human rights
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and recommend measures for

their effective implementation;
review the factors, including
acts of terrorism that inhibit the
enjoyment of human rights and
recommend appropriate remedial
measures; study treaties and other
international instruments on human
rights and make recommendations
for their effective implementation;
undertake and promote research
in the field of human rights;
spread human rights literacy
among various sections of
society and promote awareness
of the safeguards available for
the protection of these rights
through publications, the media,
seminars and other available
means; encourage the efforts of
non - Governmental organizations
and institutions working in the
field of human rights; such other
functions as it may consider
necessary for the promotion of
human rights.

the State Government is required

What is the objective for setting

up Human Rights Courts ?

any other matter which may be

The human rights courts are set

up for the purpose of providing
speedy trial of offences arising out
of violation of human rights. As
per the Act the State Government
may, with the concurrence of the
Chief Justice of the High Court,
specify for each district a Court
of Session to be a Human Rights
Court to try the said offences.
For every Human Rights Court,

its own investigating staff headed

52

to specify a Public Prosecutor or

appoint an advocate who has been
in practice for not less than seven
years, as a Special Public Prosecutor
for the purpose of conducting cases
in that Court.
How does the National Human
Rights Commission function ?
The NHRC takes up cases
either on its own initiative or on
the basis of complaints received. It
has all the powers of a civil court
trying a suit under the Code of
Civil Procedure, 1908, particularly
with regard to summoning and
enforcing the attendance of

What steps can the NHRC take

once it establishes of violation
of human rights ?
The NHRC can recommend
to the concerned government
to initiate action against the
guilty, it can recommend grant
of immediate relief to the victim
or his family and it can also
approach the Supreme Court
or High Courts for orders that
they may deem necessary. The
concerned government is required
to indicate the action taken on the
Commissions recommendations
within one month in general
cases and three months in cases
concerning the armed forces.

witnesses and examining them on

oath; discovery and production of
any document; receiving evidence
on affidavits; requisitioning any
public record or its copy from
any court or office; issuing
commissions for the examination
of witnesses or documents;
prescribed. The Commission has
by a Director General of Police for
investigation into complaints of
human rights violations. Under the
Act, it is open to the Commission
to utilise the services of any officer
or investigation agency of the
Central Government or any State
Government. The Commission has
also associated non - Governmental
organizations in many cases.

How can complaints be made

to the Commission ?
Self contained complaints
can be made in Hindi, English or
any other language in the Eighth
Schedule of the Constitution
. Additional documents or
affidavits can be asked for.
The commission also has
the discretion for accepting
complaints telegraphically or
through the FAX, email or the
mobile telephone number of
the Commission. However,
complaints are not accepted if
the event referred to is more
than a year old, or the matter is
sub- judice, vague, anonymous,
pseudonymous, frivolous or
pertaining to service matters.

YOJANA April 2011