Issues On Which The Commission Invites Suggestions From
The Public For Formulation Of Its Recommendations
11.1.1 Securing Good Governance
The first and foremost task appears to be for a radical redefinition of governance, to change the mind-set of bureaucracy, to surmount the colonial hang-over of the persistent notion of the ‘Rulers’ and the ‘Ruled’, Governors and the Governed, Government and the people – the “us” and “they” divide. The interaction between the Administrator and the citizenry needs to be informed by the awareness of and respect for the constitutional rights of the people and that the inter-action is essentially as between a free and self-governing people on the one hand and the agents chosen by them to serve them on the other. Massive and sustained participation of civil society initiatives, self-help groups, voluntary organizations etc, appears necessary in order to achieve a faster pace of socio-economic development and for building a more just, caring and equitable society the Constitution enshrined. The movement must be from Governance to self-governance. Respect for human dignity, human rights, and the rights of the citizenry, are critical to development and are not merely its rewards. This requires a radical reshaping of policies so as to create an enabling and facilitating environment in which effective interaction between the Government and the institutions of civil society becomes possible (also see Sections 8.1 & 10.5).
1. Do you agree with this view ? ;
2. If so, will Governance improve if it is made participatory in all important national endeavours particularly in areas relating to socio-economic development and effectuation and realization of the socio-economic goals of the Constitution?; and
3. If so, by what mechanism and process self-governance/participatory governance can effectively be achieved ?
11.1.2 Transparency and openness in Governance :
Openness is in the public interest and that ‘sunlight is the best disinfectant’ against the virus of corruption. As a general rule, secrecy in governance is an unreasonable practice. It promotes corruption and suppresses accountability. Governance, therefore needs to be transparent and open especially in policy-making, programme-formulation and implementation in areas pertaining to socio-economic empowerment and advancement of the weaker sections of the society. (see Section 10.5.3)
4. Do you agree with this view?; and
5. If so, in what manner Governance can be made more open and transparent especially in areas that relate to socio-economic development of the people in general, and of weaker sections of the society, in particular?
11.1.3 Sensitization of Public Servants
Public Servants need to be made sensitive to the special needs of the Women, the Scheduled Castes, the Scheduled Tribes and the Other Weaker sections of the Society in order to ensure full enjoyment of Constitutional rights and protection by these sections of the society. A perception unfortunately exists that members of the public services, in general, are averse to working in the fields pertaining to the Scheduled Castes, the Scheduled Tribes, other backward classes, women etc. It is also said that instead of being guided by the Constitutional objectives and aspirations, many of them are guided by their own biases and prejudices in dealing with issues pertaining to aforesaid classes of people which results in denial of rights to them. Such attitudes amongst members of public services require to be changed.
6. Do you think that public servants, in general, are not sufficiently sensitive and responsive to the special needs of the Women, the Scheduled Castes, the Scheduled Tribes, the Backward Classes and other Weaker sections of the society ?
7. If so, how in your view, public servants can be made more sensitive and responsive to the special needs of the Women, the Scheduled Castes, the Scheduled Tribes and the Other Sections of the Society?
Article 350 of the Constitution recognizes the rights of every person to submit a representation for the redress of his grievances. The said Article even permits such representation being made in any of the languages used in the Union or in the State. Common citizen today finds it very difficult even to know what services he is entitled to receive from government organizations and what public-grievances-redressal-mechanisms are available to him in case of denial of services. Citizens’ Charter in respect of every service-provider agency of the State is suggested to ensure effective, purposeful and user friendly delivery of public services. These citizens’ charters would list the entitlement of the citizenry to public-goods and services along with time schedule within which he is entitled to expect services from such government organizations and from each functionary at various levels. In order to ensure that Citizen’s Charters become an effective instrument for improved and user-friendly delivery of public services, it is further suggested that in case any person fails to receive the public goods and the services in the manner and to the extent set out in such charters, such persons should have recourse to an easy and effective system of grievance redressal? (see Section 10.5.4).
8. Do you think Citizen’s Charter would help in improving public services and make them more responsive and user friendly? If so,
a) What should be the broad contents of the charters?
b) How Citizen’s Charters should be institutionalized and operationalised ?
c) Should the Consumer Disputes Redressel Forums established under the Consumer Protection Act, 1986 be authorized to enforce observance of these charters and award suitable monetary compensations in appropriate cases? In cases, where monetary compensations are awarded, should it be mandatory for concerned Departments to fix responsibilities on individuals responsible for lapse and take action against them?; or
d) Institutions of a national ombudsman supported by the regional ombudsman should oversee the citizen’s charters regime and administer charter marks ?; and if so,
e) Whether the institution of ombudsman be statutory or non-statutory?
11.1.5 Public-Funding of Institutions of Civil Society
Massive financial grants are being made to institutions of civil society e.g. NGOs, Voluntary organizations, self-help groups etc. under various schemes of the several Ministries and the CAPART for the promotion of voluntary organisations. It is said that the conditions attending the making available the grants and methods of the procedures therefor are, quite often, subjective and the performance-appraisal of these organizations are not professional. It is also said that the genuine organisations working for the weaker and disadvantaged sections of the society suffer from various handicaps put in their way both openly or surreptitiously by the vested interests. It is urged that there is an urgent need to streamline distribution and administration of grants and for providing for an independent and objective performance-appraisal of the organisations to secure value and proper use of public money.
9. Do you agree with this view? If so, should a framework for distribution and administration of grants to civil society institutions from public funds be laid? If so,
(a) Should Expert Group/ Groups evaluate and report on legitimacy and entitlement of the claims for grants?
(b) Should the performance of the grantees and of the fund-utilization be certified by independent evaluating agencies?
(c) Should release and renewal of grants be based on evaluation of the performance by such independent experts?
(d) If so, what should be the form and composition of Advisory Groups and Evaluation Agencies?
(e) What standards for identification of genuine civil society institutions working for the welfare of weaker sections of the society can you suggest? How protection can be given to such organizations ?
11.2 Elimination of Hunger
Public Distribution System is essentially the food subsidy programme explicitly targeted towards poor and is aimed at reducing hunger. Central Government incurs an annual expenditure of about Rs.12,125 crores on food subsidies. There are, it is claimed, four and a half lakh Fair Price Shops in India serving 180 million Ration Card holders/ families. The Public Distribution System is an important component of Anti-Poverty Programme. The country, unfortunately, witnesses the paradoxical situation of surplus unlifted stock of food grains in the godowns of the Food Corporation of India co-existing with hunger for lack of purchasing power. Even after fine-tuning of the Targeted Public Distribution System, the performance of the fair price shops in some of the States as revealed by some studies, is dismal. In some States the percentage of fair price shops not opening even once a week is estimated to be 87%. The transfer of income intended by Public Distribution System has, by and large, benefited the urban sectors and the Above Poverty Line sections of the society more than the poor. Investigations also indicate that about one-third of the supplies in the Public Distribution System are diverted. The delivery system, according to widely held public perception, seems to be the substantial beneficiary.
Introduction of cash subsidy or the scheme of Food Coupons (see Section 10.2.1.1) as an experimental measure in areas where public distribution system is not functioning well and is showing persistent defiance of ethical norms and, if found successful, its extension to other areas or improving the existing public distribution system itself are amongst the options to improve the situation.
It has also been suggested that a certain percentage of the shops should be allotted to the members of the Scheduled Castes, the Scheduled Tribes and Other Backward Classes. Some State Governments already allot a particular percentage of Fair Price Shops to the Scheduled Castes and the Scheduled Tribes. Constitutionality of such allotment has already been upheld by the Court (Also see Section 10.2).
10. Which of the three options viz. cash subsidy, food coupons or improving the existing public distribution system as suggested in this paper is in your view the best option and why? Or can you suggest any other better option?
q What can in your view be the possible problems in the scheme of cash subsidy or food coupons and how those problems can be remedied?
q Can you suggest improvements in the scheme of food coupons as outlined in this paper?
q What practical suggestions can you offer to make the Fair Price Shops function effectively and honestly serving the purpose of reaching foodgrains to the beneficiaries at the prescribed prices?
11. Should reservation be provided in matters of allotment of Fair Price Shops and other similar allotments to the Scheduled Castes, the Scheduled Tribes/the Other Backward Classes?
11.3.1 Universal and Free Elementary Education :
Article 45 of the Constitution, the convention of the Rights of the child and international covenants on social, economic cultural rights enjoins the State to provide education to all children. The Supreme Court has declared elementary education upto the completion of the age of 14 years a fundamental right.
As India enters the 21st Century, nearly 35% of its population is still illiterate. If a country believes that it can be ignorant and at the same time free, it entertains an illusion. For those who speak of financial constraints in providing universal elementary education, the answer lies in those wise words uttered often “If you find education expensive, try ignorance. It is far more expensive”. A constitutional and facilitating legal frame work to enforce the right of every child to free and compulsory education up to the completion of the age of 14 years is an immediate and absolutely essential national necessity (see Section 10.3.3).
12. Do you agree that the State should provide free and compulsory education to all children upto the age of 14 years ?; and
13. If so, what should be the appropriate Constitutional and legal framework for the purpose ?
q Will it be appropriate to fund elementary education from revenue collected from realisation of a fee from professionals educated and trained in India but taking jobs abroad?
11.3.2 Civil Society Participation In Universal Elementary Education
Utilization of the potential of civil society through active participation and involvement of voluntary organizations, self-help groups etc. under an appropriate policy framework and scheme of grant-in-aid in provision and management of the education policy appears necessary having regard to the magnitude of the task and its significance for the future of the country in order to ensure that the task is shared by the nation as a whole in a truly participatory spirit and endeavour.
Participation by the stake holders and other institutions of civil society, if secured in a beneficial manner, can improve quality and availability of education. It is often complained that in single teacher or double teacher schools in villages, the teacher officially engaged does not teach the students himself but hires or deputes his agents to teach. This, it is said, results in higher drop-out rate. A Watch Committee under a suitable frame-work, consisting of local people specially those having a stake in quality education can easily monitor the attendance of teachers. On the other hand, leaving this task to be remote controlled by officialdom hardly yields the desired results.
14. Whether involvement and participation of Institutions of civil society including those of deprived and disadvantaged people in provision and management of elementary education would be beneficial?
q If so, in what manner effective and beneficial civil society participation and involvement can be secured and what frame work – statutory or non-statutory – is needed for the purpose?
11.3.3 Sustaining High Quality of Education
The quality of education in the schools is as important as its provision. Universal free elementary education would achieve little if its quality is poor. It would only widen the chasm between the better-educated urban-rich and poorly educated rural-poor. The question of quality assurance in elementary education, which is the foundation for the empowerment of masses, is too serious a matter to be left alone to the educational administrators. Civil society initiatives/ Neighbourhood Committees/ Voluntary organization/ Self-help Group need to be involved to share this responsibility as a call of national duty. (See Section 10.3.2)
15. Should stake holders – viz. Parents, voluntary organisations engaged in the promotion of education particularly of Scheduled Castes, Scheduled Tribes and other Weaker Sections of society, locally settled retired or serving administrators, educationists, legal and medical professionals, philanthropists, etc. be involved (not acting, of course, in a manner seen to be intrusive in the administration or constituting a parallel administration) in the evaluation of quality in elementary education programme ?
a) What should be the composition of teams to assess quality of education in the schools and to make an independent and neutral assessment of the educational standards?
b) What should be the area or the number of schools each team should look into?
c) What should be the specific tasks?
16. How can accountability of schools for student performance be laid and enforced?
q How should performance of schools in providing quality education be assessed and rated ?
q What should be the rewards for performance and sanctions for non-performance?
17. What frame work – statutory or non-statutory – is needed to improve the quality of education ?
11.3.4 Protection of Educational Interests of Weaker Sections:
Article 46 of the Constitution provides that the ‘State shall promote with special care the educational and economic interests of weaker sections of the people and, in particular, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation’. A.P. High Court in D. Murali Krishna Public School Vs. Regional Jt. Director of School Education (AIR 1986 AP 204) has declared that education is a fundamental right of the Scheduled Castes and Scheduled Tribes. The State, therefore, has a mandatory duty to provide facilities and opportunities for education at all levels to the weaker sections of the society particularly to the Scheduled Castes and Scheduled Tribes.
18. What statutory/ policy framework is necessary to ensure that the Scheduled Castes and Scheduled Tribes and other weaker sections of the people have opportunity to get educated at all levels of education and they avail of admissions in all the educational institutions maintained by the State or receiving aid from it as per percentages of reservation provided to them by the Union of India or the State Governments?
In India, maternal mortality is 407 per one lakh live births (1998). The percentage of anaemia among married women is 52%. By international comparison these are unacceptable levels of women’s health.
The average sex ratio in India is 933 females per 1000 males though women outnumber men in some States like Kerala (See section 5.1.2). Women out-number men by 1005:1000 in countries where they do not suffer from discrimination and neglect. These indicators suggest poor and neglected state of health of women in the country as well as indication to the prevalence of the dreaded female foeticide leading to the phenomenon of ‘missing-women’ (Also see sections 5.1.2. and 5.1.4).
19. What special measures should be taken for the improvement of the state of health of women?
20. Are the existing safe-guards against the misuse of sex-determination tests as a prelude or preparatory to termination of pregnancy effective? If not, what further steps do you suggest?
Infant mortality in India is 72 per thousand child births. Regional and inter-sectoral disparities and imbalances are appalling. For instance, while in Kishanganj district of Bihar infant mortality is 146, it is only 12 in Kerala. The record of Kerala in this regard is so impressive that it is said that a child born in Kerala today can expect to live longer than a child born in Washington D.C. In India 53% of all children below the age of 5 years suffer from mal-nutrition. A combination of maternal-anaemia and low birth-weight related to neurological problems impede mental ability of such children. Immediate remedial steps are necessary to improve situation in respect of Infant Mortality, Child anaemia and Child mal-nutrition (See sections 5.1.3, 5.2.1, 5.2.2 and 5.2.3).
21. What steps should be taken to ameliorate the conditions of infant mortality, child anaemia and child mal-nutrition?
22. What steps are necessary to ameliorate conditions of maternal anaemia and low birth related health problems of children?
11.4.3 Civil Society Participation
Serious problems of public health care including prevention of infections like Malaria, Tuberculosis, Hepatitis, HIV/AIDS, etc. cannot be tackled without active participation of civil society. Public hospitals under the management of the respective State Government or Union of India have serious logistic, administrative and other problems seriously impairing their utility. There is enormous public dissatisfaction about the honesty and integrity of those engaged in the health-delivery system. Participatory management of the civil society such as Rogi Kalyan Samitis of Madhya Pradesh (see Box in Section 8.1.2) is said to have resulted in improvement of public hospitals and their functioning. Participation and involvement of the civil society appears essential for management of health care so as to secure more responsive and efficient health services (also see Section 10.4.3).
23. In what manner, effective participation of civil society can be secured for effective management of the health care?;
24. What mechanism - statutory or non-statutory - needs to be evolved to ensure meaningful participation of civil society in health care?
11.5 Effective use of Science & Technology for Socio-Economic Development
The significance and importance of higher scientific and technological research in accelerating the pace of socio-economic development hardly needs to be emphasized. A high powered “National Science and Technology Commission” as an umbrella organisation for policy making, planning, promoting and funding of higher scientific and technological research endeavours is necessary for progress and to ensure better coordination and to cut down bureaucratic bottlenecks in the attainment of higher standards in Science and Technology. (see Section 10.6).
25. Do you agree that a National Science & Technology Commission needs to be set up? If so,
q Will including a provision for establishment of a National Commission for Science & Technology in Part IV of the Constitution help?
q What should be the precise composition of the Commission and its duties and responsibilities ?
q Should the Prime Minister himself head the Commission with the Minister for Science and Technology as the Ex-officio Deputy Chairman?
q Do you agree that the Commission, in particular, should be responsible for:
i. Framing of science and technology policy for the country and for undertaking its periodic review;
ii. Evolving appropriate structures, systems and procedures and standards for Scientific Departments/ Organisations and undertaking their periodical review; and
iii. Allocating funds to various Scientific and Technological Departments/organisations.
26. Should it be made mandatory that each Department of the Government (other than scientific departments) allots 5% of their total budget exclusively for funding of higher scientific and technological research?
Should a fixed percentage of GNP be spent on higher scientific and technological research in the country? If so, what should be this percentage?
27. What suggestions do you have to bring about actual equality of opportunity in the field of higher scientific and technology research for Women, the Scheduled Castes, the Scheduled Tribes, Backward Classes and poorer sections of the society?
11.6 Welfare of Scheduled Castes, Scheduled Tribes and Other Backward Classes**
11.6.1 Establishment of Residential Talent Schools:
In India, the prospects of talented children achieving their potential depend on the accident of their birth and in particular the social and economic background of the family of birth. Those born in affluent families have opportunities of education and training in elite schools while the talents of those in poorer circumstances merely waste and wither away owing to lack of opportunity. This is the lot of brilliant children with talent and promise, in poor families and it has its chilling effects on the requisite opportunity. It is necessary, therefore, to identify and groom talent amongst the boys and girls of the Scheduled Castes, Scheduled Tribes and Other Backward Classes and train them in special talent schools to enable them to compete with the rest of the society in an equal manner.
28. Do you agree that talent schools need to be established for the Scheduled Castes, the Scheduled Tribes and Backward Classes?; and
a) If so, should the children, both boys and girls, of the Scheduled Castes, Scheduled Tribes and other Backward Classes for Talent Schools be selected on the basis of their high potential talent ratings?
b) Should these schools be residential, devoted to grooming the children for high competitive educational excellence to serve the country as Administrators, Scientists and in high professions without losing the common touch and retaining the sensitive awareness of the plight of the poor in the country?
c) Should their schooling in Talent Schools be till the completion of the age of 14 years, and they be trained for future competitive performance and leadership?
d) What mission or Vision Statement this project should have?
q Can it be called “Preparing future professionals and administrators of the highest calibre”?
e) What other features should such a Scheme incorporate?
f) Should initially, as the first stage, such Talent Schools be established in each or a group of Districts among the 100 Districts (which together have a Scheduled Caste population of over 50% and in the 40 Districts which together have over 50% Scheduled Tribe population)? (A list of these districts are at Appendices-V and X respectively).
Should each State initially establish Talent Schools in such number of districts selected in decreasing order of the population of the Scheduled Castes and Scheduled Tribes as to separately cover 50% of population of these categories in that State?
g) How can the maximum contribution and cooperation of the civil society and its institutions such as self-help groups, educational societies with high reputation and experience, voluntary organisation etc. be secured in this effort?
h) How should these Schemes be funded and managed?
11.6.2 Prohibition Of Occupations That Are Degrading And Offend Human Dignity: Employment Of Manual Scavengers And Construction Of Dry Latrines (Prohibition) Act, 1993
An unfortunate blemish of India’s urban sanitization system has been scavenging by members of certain communities of the Scheduled Castes under inhuman conditions. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 was enacted to put to an end to this practice. The Act is said to relate to entry 6 i.e. “Public health and sanitation; hospital and dispensaries” in List II of the Seventh Schedule of the Constitution and the law, therefore, is applicable to the States (other than those at whose instance the Central law was made) only after such States adopt the law. Many States have not yet adopted the law.
There appears to be a fundamental lacuna in its approach as to the source of legislative competence, which the statute relies on and invokes. The topic of the legislation, in its pith and substance, falls within Entry 24, List III of the Constitution, respecting which the Union Parliament has concurrent competence to legislate. The encroachment on the topic of entry 6 of List II is merely incidental. Both the Preamble and the provision as to the extent of applicability of the statute need to be amended so as to bring them in accord with the position that the legislation, in pith and substance, falls within concurrent powers of legislation. This would make the law applicable to the entire country without the need for the States to adopt it.
In implementation of the abolition and eradication of Safai Karmachari (manual scavenger) system in the country, even the State Governments, which adopted the Act, have not taken adequate steps to ensure total abolition of employment of Safai Karmacharis.
29. Do you agree that the said Act needs to be amended as mentioned above.
30. Does the said Act need further amendment to completely prohibit employing whether directly or indirectly any person as Safai Karamachari in Scavenging?
31. What further measures need be taken to liberate Safai Karmacharis from the degrading occupation of ‘Safai’ (scavenging) without loss of employment and income and ensuring education and training for their children so that they may take alternate employments?
11.6.3 Effectuation of Right to Livelihood
Right to Livelihood has been declared by the Supreme Court as part of right to life under Article 21 of the Constitution. Article 39(a) requires that the State shall direct its policy towards securing that its citizens, men and women equally, have “the right to an adequate means of livelihood”. Article 46 requires that the State 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 and protect them from social injustice and all forms of exploitation.
32. What legal framework is necessary to ensure the effectualisation of combined mandate of constitutional assurances under Articles 21, 39(a) and 46 in respect of Scheduled Castes and Scheduled Tribes ?
11.6.4 Monitoring of Nutritional Status of Weaker Sections
In any human group (in any social and economic sample), there will be people of high intellectual potential. But none of them realizes his/her potential unless afforded an opportunity to do so. Their latent talent is quite often submerged under the burden of social neglect and denial of opportunity. Many of the poor, particularly from the Scheduled Castes and Scheduled Tribes and Other Backward Classes, suffer from mal-nutrition. Maternal anaemia coupled with low birth weight related neurological deficiencies resulting from poverty and malnutrition, exact a great human price. Opportunities in life are denied to them.
The district administration should undertake the monitoring, either by itself or through voluntary organisations, of the nutritional status of at least 200 Scheduled Caste/Scheduled Tribe families in the District in the format at Appendix XVIII. The statistics so obtained should be professionally evaluated by experts (such as NCAER) as sources for policy options and midcourse-corrections of the anti-poverty and health programmes.
33. Do you think such monitoring would help in formulation of appropriate policies for improved nutritional status of weaker sections?
34. Is format at Appendix XVIII adequate?, if not, what additional information/changes are needed in it ?
11.6.5 Human Dignity - Elimination of Untouchability and Prevention of Atrocities
Article 17 of the Constitution abolished untouchability but its practice and resultant disabilities remain unabated even after more than 50 years of working of the Constitution. Suppression of human spirit inherent in untouchability has now taken diverse subtle forms for its perpetration (e.g., touching the feet of people of upper castes, etc.). Atrocities are also rampant against the Scheduled Castes, the Scheduled Tribes and other weaker sections. (see 9.2.2)
35. Do you agree with this view ? If so,
a) What remedial steps are needed to prevent atrocities on the Scheduled Castes and Scheduled Tribes and eradicate untouchability completely?
q Whether Human Rights Education would help in eradicating this evil and if so what methods and means are necessary to successfully carry out this campaign against it?
b) What measures should be taken to build up a powerful democratic mass movement to eradicate the practice of untouchability and untouchability-based discriminations and disabilities at the village and mohalla level?
c) Do you feel that the police force and administration are taking effective steps for curbing untouchability and atrocities in accordance with the Protection of Civil Rights Act, 1955 (PCR Act) and the Scheduled Castes, the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (POA Act) and if not, what is the remedy?
q Whether providing of a separate cell in every police station for investigation and prosecution of offences under the aforesaid Acts shall be an effective remedy? Should, this be done, at the least, in areas with significant population of SCs and STs?
q Since the occurrence of untouchability and the sites of the occurrence like hotels, wells, temples, etc. are known, and untouchability is practiced openly, should on detection of any such crime where appropriate action by local police officers was not taken, be treated as an abetment by concerned police officers and, be made punishable as such?
d) What measures can be taken to strengthen the PCR Act and the POA Act and make them more effective?
q The operation of the P.O.A., it is widely alleged, is often defeated by the practice of filing false criminal cases against Scheduled Caste and Scheduled Tribe victims of atrocities who lodge complaints with the police under the said Act. What measures can be taken to prevent this practice?
q Do you think that practices like social boycott, economic boycott, social blackmail and economic blackmail should be specifically listed as crimes of atrocities under Section 3(2) of the P.O.A. Act?
q What deterrent steps and punishment would you approve for multiple murders, mass rapes, gang rapes perpetuated on SCs and STs?
q Should the P.O.A. Act be amended to bring within its purview cases where most, though not all, the perpetrators of the crime are non-SCs or non-STs or where the crime is promoted or engineered by non-SCs/non-STs?
q Should Section 10 of the P.O.A. Act be amended by adding the words “or in any other area of any district” in sub-section 1 of Section 10 after the following existing words “…in any area included in Scheduled Areas or Tribal Areas as referred to in Article 244 of the Constitution”, in order to make the protection of this Section available to SCs also?
q Do you feel that the establishment of exclusive special courts in every district supported by exclusive special public prosecution machinery and special investigating agency to ensure speedy trial and punishment of those convicted shall help in deterring atrocities?
q Do you feel that the establishment of special mobile courts in every district to go to the spots where untouchability is notoriously prevalent and to deal out punishment on the spot, help?
11.6.6 Adequacy of representation in Public Services
Adequate representation of the Scheduled Castes and the Scheduled Tribes at all levels in public services is the mandate of Article 335. There is a widespread dissatisfaction amongst the Scheduled Castes and the Scheduled Tribes over the changes brought since 1996 in Government orders providing reservation in public services in purported implementation of the directives of the courts and a feeling persists amongst them that amendments are detrimental to the Constitutional objective of achieving adequate representation for them in services. Adequacy of representation has not been achieved in Government services even after 50 years at any level for the Scheduled Tribes and save at lower levels of Group C and D posts for the Scheduled Castes (See Table 9.2 in Chapter 9). In order that the serious apprehensions of the Scheduled Castes and the Scheduled Tribes of denudation of the constitutional rights to reservation in educational institutions and civil posts under the State are allayed, it has been suggested that the position of reservation as it existed prior to 1996 be restored.
36. Do you agree that the position of reservation in public services for Scheduled Castes /Scheduled Tribes as it existed prior to 1996 needs to be restored ?
37. What further measures in your view are necessary to ensure adequate representation of the Scheduled Castes and the Scheduled Tribes in the higher levels of public service ?
38. Do you feel that reservation should be brought under the purview of a statute to be named as Scheduled Castes and Scheduled Tribes (Reservation of Appointments or Posts and of Seats in Educational Institutions) which will provide for all aspects of reservation including the setting up of Arakshan Nyay Adalats or Tribunals for providing Justice in Reservation with its main bench at Delhi and other benches in every place where the Central Administrative Tribunal has got benches with the status of High Court and with appeals lying to the Supreme Court?
39. How can it be ensured that reservation for Backward classes is fully implemented every year and there is no shortfall in filling the vacancies reserved for them?
40. Do you feel that it will help to bring reservation for BCs under the purview of statute to be named as the Backward Classes (Reservation in Appointments to Posts and of Seats in education institutions) Act which will provide for all aspects of reservation pertaining to backward classes including the establishment of Arakshan Nyay Adalat or Tribunals for Justice in Reservation?
41. The ongoing process of privatization of Public Sector Undertakings and other such bodies is likely to adversely affect the existing reservation for the Scheduled Castes, the Scheduled Tribes and Backward Classes in those bodies. What measures can be taken to ensure adequate representation of these categories in such bodies even after their privatization?
q Do you feel that every Memorandum of Understanding or privatisation should mandatorily stipulate the continuance of policy of reservation in favour of SC, ST and BC in the form as it exists in the Government with amendments made from time to time?
q Should this provision also be incorporated in the Reservation Act mentioned above?
11.6.7 Representation in Higher Judiciary
In higher judiciary, the representation of judges from Scheduled Castes, Scheduled Tribes and other backward classes is inadequate. Out of 610 judges in the High Courts, there are hardly about 20 judges belonging to the Scheduled Castes and the Scheduled Tribes. In S.P. Gupta’s1 case and Supreme Court Advocates on Record2 case, popularly known as the First Judges’ Case and Second Judges’ Case respectively, the Supreme Court upheld the constitutionality of the circular letter addressed by the Union Law Minister requesting the State Governments and the High Courts to recommend the names of competent candidates belonging to the Scheduled Castes, the Scheduled Tribes, women and Other Backward Classes.
42. What steps are necessary to ensure the appropriate representation of the Scheduled Castes, the Scheduled Tribes and other backward classes in the higher judiciary.
11.6.8 Allocation and Management of funds – Revitalization of Special Component Plan for the Scheduled Castes and Tribal Sub-plans
The Schemes for socio-economic empowerment of Scheduled Castes, Scheduled Tribes and other Weaker Sections of the Society mandated by Article 46 and other provisions of the Constitution are presently being implemented by different Departments of the Government. For comprehensive development and empowerment of Scheduled Castes and Scheduled Tribes, it has been a policy for last twenty five years or so that a proportion of total plan outlay equivalent to the population proportion of the Scheduled Castes and Scheduled Tribes respectively are constituted as a special component plan for Scheduled Castes (SCP) and Tribal Sub-Plans for Scheduled Tribes (TSP) so that adequate financial outlay for their development are made available. There is, however, no specific constitutional or statutory provision for separate allocation of funds for socio-economic empowerment of the Scheduled Castes, Scheduled Tribes and other Weaker Sections of the Society. This laudable policy, however, has only partially succeeded in achieving its objectives as in practice full budgetary allocations as required to be made under the policy are hardly made. The share of budgetary allocations for the welfare of the Scheduled Castes and Scheduled Tribes has declined in recent years. Due to lack of coordination amongst various Departments, even budgetary allocations lapse for want of finalization of schemes. Centralisation of schemes under one Body/ Department has been suggested as a remedy. It has also been suggested that funds allocated for the welfare of the Scheduled Castes and the Scheduled Tribes be transferred to this Body. This Body/ Department is to be made responsible for formulation, implementation and accountability of the benefits to the targeted Groups (see Section 9.2.5).
43. How can it be ensured that appropriate budgetary allocations for socio-economic empowerment of the Weaker Sections of the Society are made every year and how appropriate budgetary allocations for the purpose should be determined?
44. What mechanism – constitutional, statutory or non-statutory – needs to be evolved to ensure that funds allocated for the welfare of Scheduled Castes and Tribes are used exclusively for their welfare?
45. What mechanism needs to be devised in the emerging new economic scenario to ensure easy availability of loans/advances to Scheduled Castes and Scheduled Tribes from banks and other financial institutions?
46. Whether a percentage equal to the percentage of the Scheduled Castes/Scheduled Tribes of MP/MLA Development Funds should be used exclusively on schemes for development of Scheduled Castes/ Scheduled Tribes ?
47. Whether a prescribed percentage of amount released to the Village Panchayats/ bodies of Local Self Government should be allotted and be exclusively used for individual works of the Scheduled Castes /Scheduled Tribes so as to build up individual assets of the Scheduled Castes and Scheduled Tribes?
48. Do you feel it will help to have a National SC and ST Development Authority (constituted with appropriate experts and members) both at the Union and State levels for formulating and approving national Plans and State Plans, Annual, Five Year Plans and Perspective Plans – based on the priorities of the developmental needs of SCs and STs and to supervise monitor and direct the implementation of the developmental plans of SCP and TSP of the Central and State Plans for achieving the objectives of various Plan schemes
q Do you also endorse the view that proportionate funds as plan outlays of Centre, States and UTs corresponding to the population of SCs, STs as corpus of the SCP and TSP be placed at the disposal of this Body for making sector-wise, scheme-wise allocation?
q Do you think it will help to have District and SC and ST Development Authorities in each district involving officials, public representatives, Panchayat Raj and other local bodies representatives, NGOs, etc. for implementation, monitoring and reporting?
q Do you think, it will help to give these Authorities a constitutional status by making a suitable provision in the Constitution?
11.6.9 Social Responsibilities of the Private Sector
In the changed economic scenario, private sector is likely to grow rapidly. The Private Sector Enterprises, by and large, draw substantial support from Government bodies and Banks which handle public-funds. Large investments in their enterprises come from the public funds. Private sector has, therefore, social responsibilities to perform. It needs actively to help in the improvement of socio-economic conditions of the people especially those belonging to the weaker sections of the society so as to build a conflict free and caring society without which no enterprise either public or private can hope to flourish. At present, Scheduled Castes and Scheduled Tribes employees in the private sector are believed to be numerically insignificant except at the shop-floor level. There is a increasing apprehension that the employment opportunities of the Scheduled Castes, Scheduled Tribes and the other weaker sections would shrink with the reduction in role of the Government.
Areas of social obligation of the private sector needs to be identified. Private Sector should contribute in the areas of advancement of education, health and in provision of employment opportunities of weaker sections of the people including the Scheduled Castes, the Scheduled Tribes and other backward classes. Policy frame work for active involvement and participation of private sector for socio-economic development of the people needs to be evolved after a meaningful, purposeful and result oriented debate with the leaders of the Indian Industry, Trade and Commerce.
49. What should be the areas of social obligation of the private sector?.
50. What should be the appropriate policy framework for meaningful contribution of private sector in the identified areas?
51. What measures can be taken to ensure that the private sector especially the large private sector does actually take in qualified Scheduled Castes, Scheduled Tribes and backward classes in adequate numbers at supervisory, technological and managerial levels? OR, Is the reservation in jobs, as suggested by some persons, the only alternative?
11.6.10 Transfer Of Areas Under Fifth Schedule To The Sixth Schedule
The Fifth Schedule deals with the administration and control of Scheduled Areas and Scheduled Tribes while the Sixth Schedule relates to the Administration of the Tribal Areas in the North-Eastern States. The Sixth Schedule provides for the autonomous districts and autonomous regions and power of constitution of district and regional councils, their respective powers, etc. etc. The Fifth Schedule read with Article 244 empowers the Governor of the State to regulate administration and control of Tribal Areas, Scheduled Areas and Scheduled Tribes with the power to modify, annul any law made by the Parliament or the State Legislature or limiting its application to a particular area.
During the working of the Constitution in 51 years, anomalies have occurred in the administration and control of the Scheduled Areas and Scheduled Tribes governed by Fifth Schedule. The Scheme under the Sixth Schedule on the other hand has worked reasonably well.
Some tribal areas in the country have neither come under the Fifth Schedule nor the Sixth Schedule. It has been suggested that the Scheme envisaged in the Sixth Schedule for the Administration of the Tribal Areas in the North-Eastern States be extended to the areas covered by the Fifth Schedule with necessary amendments thereto and these areas be brought under the Sixth Schedule. It has further been suggested that the tribal areas which are presently neither under the Fifth nor under the Sixth Schedule should also be brought under the Sixth Schedule directly.
52. Do you agree that the scheme under the Sixth Schedule has worked better;
q if so, what are your views about bringing the areas under the Fifth Schedule and the left over Tribal areas under the Sixth Schedule?
11.6.11 Transfer Of Tribal Land
In certain States covered by the Fifth Schedule, such as, Andhra Pradesh, Bihar and Orissa, there are laws prohibiting the transfer of the lands owned or in the possession of the tribals to non-tribals. There have, however, been large-scale complaints, even in areas where such land transfer laws prevail, of transfer of tribal lands to non-tribals through various surreptitious means. Efforts made to reverse the process and restore land to tribal people as laid down in the laws have produced only limited results. Despite deficiencies in implementation, these laws have nonetheless provided protection to the tribals in these areas. In Samatha’s Case*, the Supreme Court while construing the word ‘land’ in Andhra Pradesh Scheduled Area land Transfer Regulation Act held that the ‘land ‘ included both transfer inter vivos between a tribal to a non-tribal as well as transfer of Government land in tribal areas in favour of anybody other than tribals. Any transfer, by way of lease or licence, therefore cannot be made in favour of non-tribals. There is a move to amend the existing land transfer laws so as to enable the transfer of lands belonging to Scheduled Tribes or Government land situated in the Tribal Areas in favour of companies and multi-nationals for the purpose of securing more efficient agricultural practices or better exploitation of minerals and forest wealth.
53. How can tribal ownership and control over land in tribal areas, whether individually owned or communally owned, or vesting in government or any other, be protected while ensuring that land and other resources in the tribal areas are beneficially utilized in the interest of tribals and in larger national interests with their consent and participation?
q Since tribals are extremely emotional about their land, what specific measures can be taken to respect their feelings and help them to organise in protecting their land and other cultural interests? Will co-operative societies or companies wholly owned and managed by the tribals be of help?
54. In what way can the lands illegally transferred in breach of existing laws from Scheduled Tribes be restored to them? How breach of such laws can be prevented?
55. Should there be a constitutional / statutory framework for a scheme of resettlement of those affected by development works and projects? If so, what should broadly be the contents of the constitutional policy framework?
q How dislocation can be minimized?
q Will it help if resettlement plans and costs are built into the project plans and costs as first charge to be fulfilled before/simultaneously with the project constructions?
56. How can symbiotic relationship that has traditionally existed between Tribals and forests and which has been disturbed by commercial interests, be restored so as to ensure harmonious protection and growth of Tribals and forests, including protection of their traditional rights in the forest?
57. Considering that the tribals are dependant to a large extent on minor forest produce (MFP) for their livelihood, what measures should be taken to ensure that they get the full returns on the produce they collect and sell? What steps should be taken to continuously replenish and regenerate the shrinking stock of MFP?
11.6.12 Protection Of Land Ownership/Land Tenures
The statistical data [see Tables 9.3(A) & (B) and 9.4] indicate that the majority of the Scheduled Caste and the Scheduled Tribes continue to be agricultural labourers and marginal land-holders, despite various measures taken by the Government to improve their lot in the last fifty years. Under various land reforms schemes land has been made available to landless labourers. These schemes, however, have not altered the lot of landless labourers particularly of those belonging to the Scheduled Caste and the Scheduled Tribes. A number of land reform cases are held up in judicial process and in certain cases judgements are said to have run contrary to the legislative intent. Cultivable Government land and Bhoodan land is still available in some States for distribution to beneficiaries. In many cases, the Scheduled Castes and Scheduled Tribes to whom lands have been allocated/granted have been forcibly evicted and persecuted. True implementation of land reforms legislation and proper allotment/distribution of land under these schemes could have substantially improved the lot of landless labourers and it still has the potential to do so.
58. What measures should be taken to expeditiously distribute available Government land (not required for the public purpose), Bhoodan land and ceiling-surplus-land amongst landless poor, SCs, STs and other weaker sections?
q What measures should be taken to put them promptly in possession of those lands?
q What measures should be taken to develop these lands through irrigation and otherwise?
q What steps should be taken to recover Government lands, Bhoodan lands and ceiling-surplus lands occupied by those non-eligible for the allotment of such lands and make such lands available for distribution among the landless poor, SCs, STs and other weaker sections?.
59. What measures need to be taken to avoid forcible eviction of the Scheduled Castes and the Scheduled Tribes from the land allotted to them under the various schemes and to restore the land, from which they have been dispossessed, to them?
60. How can be true implementation and better enforcement of land reform legislations ensured?
61. What amendments, if any, in your view are needed in the Constitution to protect and promote legitimate interests of SCs, STs, BCs and other weaker sections of the society? The following proposals have been received by the Commission suggesting amendments to the Constitution. What are your views regarding the need, appropriateness and desirability of making the suggested amendments?
a) Article 46 which is presently non-justiciable is made a part of Fundamental Rights and the following addition is made at the end of it:
“and it shall be the right of the weaker sections of the people and, in particular, of the SC and ST that the State and all institutions of or created by or promoted by or assisted by the State shall at all times function fully and totally in accordance with this right, shall take every measure required to fulfil this right and shall not take any measure the effect of which will be contrary to it.”
b) To overcome the difficulties arising from the judicial interpretation of the clause in Article 335 of the Constitution which reads as “consistently with the maintenance of efficiency of administration”, the aforesaid clause be deleted from Article 335.
c) Article 335 be transferred to Fundamental Rights as a new clause in Aricle 16 with suitable changes to ensure that reservation for SC and ST becomes mandatory with enabling powers for a legislation covering all aspects of reservation for the Scheduled Castes and the Scheduled Tribes.
d) Clause 4 of Article 16 which is presently worded ‘permissibly ‘ be made mandatory in line with clause 1 of Article 15 and 16 so that Article 16(4) becomes a source of reservation for Backward Classes.
q Clause 4 of Article 15 be made mandatory.
e) Inclusion of the following entries in List III of the Constitution.
i. Development, welfare and protection of the Scheduled Castes and the Scheduled Tribes.
ii. Development, welfare and protection of women.
11.7 Giving Voice To The Disadvantaged And Deprived
11.7.1 Empowerment of Women
The representation of women at all levels of Government is 7.1% of Government service. The representation of women in the Indian Administrative Service is about 10%. Out of the 500 and odd Judges of the superior courts, there are only 15 women Judges. The number of women Members of Lok Sabha is 49. The full potential of women therefore remains grossly underutilized even after more than 50 years of the working of the Constitution (see Section 5.5).
62. What steps need to be taken to enhance the representation of women at various levels of policy making and administration?
63. Should the process of empowerment of women that began with reservation of one-third seats in Panchayats and Municipalities need to be extended to State Legislatures and Parliament?
11.7.2 Unorganized Labour
In India, out of 286 million working force in 1991, 259 millions were in unorganized sector. The largest numbers of unorganised labourers are in occupational sectors like agricultural labour, traditional and village industries, primary production in fisheries etc. There are also sizable number of workers in bidi rolling, match stick making etc. The unorganized labour continues to be exploited in diverse ways. Practice of employing contract labour even for works of continuing and long term nature which increasingly is being adopted both by Public and Private sector results in their exploitation and is a problem area. They need protection from exploitation. A mechanism under which such unorganized labour can be enabled to form cooperative societies/self-help groups may help in reducing their exploitation and in improving their economic conditions. For instance, rickshaw pullers vegetable vendors, street-vendors, hawkers do not own their rickshaws or carts but take them on rent. The rent paid by them in a year often is sufficient to pay back the cost of rickshaws and interest thereon. A cooperative movement should enable easy loans from banks to be made available to them through cooperative institutions. The cooperative institution could themselves supply such rickshaws and carts on hire-purchase basis enabling them to be the owners, and thus ending their exploitation. Institutions of civil society too can play an important role in preventing exploitation of unorganized labour.
64. What mechanism – statutory or non-statutory – needs to be evolved to prevent exploitation of unorganized labours and to ensure payment of prescribed / statutory wages to them?
q Do you feel a Central Act on the lines the one was drafted for agricultural workers in 1978-80 to regulate their employment and conditions of service and to ensure prescribed wages to them, if enacted, would help agricultural workers? If so, whether similar measures are also necessary for other classes of unorganised workers?
65. In what way participation of civil society can be secured to prevent exploitation of unorganized labour?
66. what steps can be taken to stop exploitation of labourers on long term jobs by treating them as contract labourers?
11.7.3 Statutory Protection To Farmers
Mahatma Gandhi, the Father of the Nation, said that India lives in villages. Agriculture is the main rural economy. The Freedom movement laid emphasis on empowerment of agriculturists and conferment of title to the tiller of the soil. The Constitution enjoins in Article 48 that the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps to preserve and improve the breeds, etc. Despite the Green Revolution having been achieved over the years, the agricultural economy remains in precarious condition. The agriculturists, due to diverse reasons, like natural calamities, marketing exploitation of their produce etc. are subjected to recurring losses. In Dalmia Cement (Bharat) Ltd. Case1, (1996), the Supreme Court declared that agriculture is an industry, the livelihood and sustained economic development of agriculturists depends on the production and return from the agricultural produce. Socio-economic justice to the farmer was declared a Fundamental Right in the said judgment. Like an industrialist, the agriculturist should also be made entitled to all the benefits of Government policy on industry. Farmers also need to be protected from the adverse effects of the WTO and IPR regimes, while at the same time securing the benefits of these regimes for them.
67. Do you agree that the agriculturists should be made entitled to all the benefits of Government policy on industry?
q If so, what remedial steps - legislative and administrative - are necessary to protect the agriculturists from incurring losses, to arrange sustained growth of agriculture, which includes sericulture, fishiculture, animal husbandry, etc?
68. What steps should be taken to protect Indian peasantry and other traditionally producing classes from the adverse effects of the regimes of WTO, IPR etc. while at the same time helping them to secure the benefits of those regimes.
Management of water resources is the largest single issue which will dominate the discourse on natural resources. It is said, hyperbolically, that the Third World War would be fought over water. The country has, alternatively, seen devastating floods and paucity of drinking water. It is ‘apoplexy’ at one time and ‘Anemia’ at another. Watershed management, check-dams, rain-water harvesting are among the issues of utmost priority.
69. What mechanism – statutory or non-statutory is required to secure beneficial participation of civil society institution in better management of the water resources in the country?
70. What steps should be taken to ensure that farmers of the Scheduled Castes, Scheduled Tribes and weaker sections are enabled to secure the benefits of water resources?
11.7.5 Bonded Labour and Child Labour
Despite prohibition of ‘begar’ and other forms of forced labour, the practice of bonded labour has not ended, Child labour too exist (see Section 10.7.3).
71. What steps are required to be taken to ensure effective implementation of the provisions in this regard?
72. Whether the definition of the ‘bonded labourer’ needs to be amplified to bring all forms of bondage within its ambit ?
73. Would it be useful to associate local self-government mobilization like Zila Panchayat, Municipality, Gram Panchayat with district administration in identification and rehabilitation of the bonded labour?
74. What schemes need to be formulated with a view to ensure effective rehabilitation of bonded labourers ?
a) Whether a cooperative society of bonded labourers would be helpful in this regard ? (Major portion of the amount paid for rehabilitation of bonded labourers may be credited to the cooperative society as its share capital. Surplus governmental land may also be made available to it, so that individual members can work in a cooperative spirit and are able to pay loans taken for rehabilitation etc.)
b) Whether it should be made mandatory that on retrieval of a child labourer/ child bonded labourer, an adult member of his family would have to be employed in place of child to supplement the family income ?
75. Whether a consolidated fund be created for rehabilitation of bonded labourers/ child labourers/ child bonded labourers ?
11.7.6 Immoral Trafficking in Women – Rescue & Rehabilitation
In Gaurav Jain’s Case1, the Supreme Court of India on 9th July, 1997 directed the Union of India to constitute a committee to make an ‘in depth study’ of the problems relating to prostitution, child prostitutes and children of prostitutes and to evolve suitable schemes for rescue and rehabilitation of the victims of prostitution. The court directed that the report should be circulated to all the State Governments eliciting their views thereon. Thereafter, the Prime Minister was to convene a conference of all the Ministers dealing with women and child, consider the recommendations and the responses, evolve policies and plans of action. A permanent committee of three Secretaries was directed to be constituted for implementation and continued monitoring of the implementation. Government of India in the Ministry of Human Resource Development (Department of Women and Child Development) had, accordingly, constituted a committee on Prostitution, Child Prostitutes and Children of Prostitutes on 21st August, 1997. The Committee in its Report1 has inter alia recommended certain Plan of Action2 to combat trafficking and commercial sexual exploitation of women and children. These include action points on (i) Prevention, (ii) Trafficking, (iii) Awareness Generation and social mobilization, (iv) Health Care Services, (v) Education and Child Care, (vi) Housing, Shelter and Civic Amenities, (vii) Economic Empowerment, (viii) Legal Reforms and Law Enforcement, (ix) Rescue and Rehabilitation, (x) Institutional Machinery and (xi) Methodology.
The Centre of Concern for Child Labour has identified certain child prostitution prone areas in India as is indicated in Appendix XIX.
76. In what manner, if any, the recommendations of ‘Secretaries Committee’ need augmentation?
77. Will immediate implementation of these recommendations help improve the position?
78. What further steps need to be taken to ensure elimination of Child Prostitution and their rehabilitation?
79. Are you satisfied with the pace of socio-economic change since independence and do you think that it commensurate with the financial outlays and expenses? If not, what factors in your view have constrained its pace and how it can be accelerated to achieve constitutional objectives of ensuring a life of dignity to every citizen?
* see Chapter 9
1 AIR 1982 SC 149
2 AIR 1994 SC 268
* Samatha’s Case, AIR 1997 SC 3297
1 1996 (10) SCC 104
1 Gaurav Jain Vs Union of India , AIR 1997 SC 3021
1 See the Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes & Plan of Action published by Department of Women & Child Development, Ministry of Human Resource Development, Govt.of India, 1998.