A
on
* This Background Paper
was prepared for the Commission by the Advisory Panel on “Pace of
Socio-Economic Change and Development Under the Constitution”.
(vii)
PACE OF
SOCIO-ECONOMIC CHANGE AND DEVELOPMENT
CONTENTS
Page No.
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1.
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Securing
Good Governance |
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1389 |
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2.
|
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1390 |
|
|
3.
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Citizen’s
Charter |
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1390 |
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4.
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Sensitization
of Public Servants |
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1390 |
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5.
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Elimination
of Hunger |
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1391 |
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6.
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Establishment
of Residential Talent Schools |
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1393 |
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7.
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Protection
of Educational Interests of Weaker Sections |
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1394 |
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8.
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Establishment
of Residential Talent Schools |
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1397 |
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9.
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Prohibition
of occupations that are degrading and offend human dignity: Employment of
Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 |
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1398 |
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10.
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Human
Dignity - Elimination of Untouchability and Prevention of Atrocities |
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1401 |
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11.
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Adequacy of
representation in Public Services |
|
1405 |
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12.
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Representation
in Higher Judiciary |
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1408 |
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13.
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Allocation
and Management of funds – Revitalization of Special Component Plan for the
Scheduled Castes and Tribal Sub-plans |
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1408 |
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14.
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Social
Responsibilities of the Private Sector |
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1412 |
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15.
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Transfer of
Areas under Fifth Schedule to the Sixth Schedule |
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1413 |
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16.
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Transfer Of
Tribal Land |
|
1414 |
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17.
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Protection
Of Land Ownership/Land Tenures |
|
1416 |
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18.
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Strengthening
of constitutional provisions |
|
1417 |
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19.
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Empowerment
of Women |
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1418 |
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20.
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Unorganised
labour |
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1418 |
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21.
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Statutory
Protection To Farmers |
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1419 |
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22.
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Bonded
Labour and Child Labour |
|
1420 |
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23.
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Immoral
Trafficking in Women – Rescue & Rehabilitation |
|
1420 |
Securing Good Governance
1.1 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 which
the Constitution has 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.
1.2 There is a need for a radical
redefinition of governance to change the mind-set of the political executive
and permanent civil services. The
movement should be towards acceptance of self-governance as a substantive and
major part of governance, shedding maximum possible areas and activities of
governance in favour of self-governance especially in areas relating to
socio-economic development and even in other areas of governance associating
institutions of self-governance.
Recognition be paid to the fact that constitutional rights of citizenry,
human dignity, Human Rights and human security are not rewards to development
but are critical to development. A sensitive, sensitised and responsive civil
services has to be ensured. It is
accordingly suggested that:
(a) Emphasis should be placed
on participatory governance and institutions of concomitant democracy in areas
relating to socio-economic development and the progressive realization of the
socio-economic goals of the Constitution.
(b) Self-governance must
necessarily include developmental autonomy for Scheduled Castes and Scheduled
Tribes through institutions on their behalf and empowerment of Scheduled
Castes, Scheduled Tribes, Backward Classes and other deprived categories to
shape policies for their development and the implementation of those policies.
(c) As an incentive to
promote institutions of concomitant democracy, a specific share of expenditure
on welfare programmes such as – education, health, social security, etc. be
earmarked for being spend through voluntary organisation, NGOs, Self-Help
Groups, etc. This is apart from the
suggestions made separately in this Paper with regard to developmental autonomy
and developmental empowerment of the Scheduled Castes and Scheduled Tribes,
through National & State Scheduled Castes and Scheduled Tribes Development
Authorities, etc.
(d) To promote
a sense of good governance of the sensitive, important and key positions in
administration shall be identified and listed.
Posting and transfers of officers which have a key role in
socio-economic change shall be through Civil Services Board in which heads/experts
from management institutions shall be invited to participate in the evaluation
of previous performance and track records and future suitability for the post.
(e) As a
mechanism of promoting sensitivity towards the Scheduled Castes and the
Scheduled Tribes and Backward Classes, a provision for “Social Justice
Clearance” be established, regarding which details are given later in this
Paper.
Transparency and openness in Governance
2.1 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.
Citizen’s Charters
2.2 Article 350 of the Constitution recognizes the rights of
citizenry to petition for redress of grievances. Citizens’ Charters in respect of every service-provider agency of
the State is suggested to ensure effective, purposeful and user friendly
delivery of public services. The
Citizens’ Charters would list the entitlement of the citizenry of public goods
and services along with time schedule within which he is entitled to expect
services from such government organisations and from each functionary at
various levels. In order to ensure that
Citizens’ 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 through chartered Ombudsman. A
scheme for criminal juries compensation should be established.
Sensitization
of Public Servants
3.1 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.
3.2 As a means of achieving this objective, it is suggested that
a personnel policy should be drawn up, whereby, inter alia, officers of
the IAS and other services directly or substantially relevant to Scheduled
Castes, Scheduled Tribes and backward
classes will find it possible to advance their career only by working for at
least a period of five years in areas and sectors directly or mainly pertaining
to Scheduled Castes, Scheduled Tribes and backward classes at grassroot level, executive level and
policy level and none of them should be allowed to get posts in generally
coveted areas and sectors, like Commerce, Economic Affairs, Industries, etc.,
without acquiring this qualification; it is ensured that those who voluntarily
devote the major part of their service to areas and sectors wholly or mainly
pertaining to Scheduled Castes,
Scheduled Tribes and backward classes should not hereafter be losers in
their career; and providing for protection from persecution by powerful persons
inside and outside government to be given to honest officers/employees of all ranks
working sincerely for the development and protection of Scheduled Castes and
Scheduled Tribes; and provision is made for “Social Justice Clearance” (just
like ‘integrity clearance’) before an officer of Class-I or Class-II is
promoted; and it is ensured that service in tribal areas does not put any
public servant to any disadvantage in the matter of net family income or the
education of the children; and provision is made of a formula of accelerated
promotion for those who spend at least five years continuously in areas and
sectors directly or mainly pertaining to Scheduled Castes, Scheduled Tribes,
backward classes. Social Justice Clearance should be implemented seriously by
including specific performance of officers, for example, with regard to the effectuation
of Section 15A of the Protection of Civil Rights Act, 1955, thorough
implementation of the Reservation Policy with accountability in their
respective spheres and concrete achievements in the socio-economic development
of weaker sections of the society, in particular, Scheduled Castes, Scheduled
Tribes and Backward Classes. These
should be similar but separate posts of the Personnel Policy in respect of
Backward Classes and Women.
Elimination of Hunger
4.1 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.
4.2 Introduction
of cash subsidy or the scheme of Food Coupons (see Section 10.2.1.1 of
Consultation Paper) 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.
4.3 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.
4.4 In respect of poor people, who at present still have the
purchasing power to avail themselves of the benefit of the PDS, it is suggested
that, keeping in view the fact that bulk of the genuine beneficiaries belong to
the Scheduled Castes and Scheduled Tribes and “lower” backward classes; the
following steps may be taken:
(i)
There should be fair price shops/ration shops in every
Scheduled Castes basti, Scheduled Tribes hamlet and identifiable backward
classes localities like fishermen’s localities, banjaras/tandas, etc. in the
rural areas. In the urban areas, there
should be fair price shops/ration shops in every slum/locality wholly or
predominantly inhabited by the Scheduled Castes or the Scheduled Tribes or the
backward classes with particular attention to the slums.
(ii)
The number of fair price shops/ration shops in each
basti/hamlet/urban locality/slum should be based on the population of each such
habitations.
(iii)
The allottees of these fair price shops/ration shops, should
be selected on the basis of the social profile of the habitation in
question. Thus in a Scheduled Castes
basti, the fair price shops should be allotted only to a Scheduled Caste
candidate and similarly in other cases.
In urban slums, where Scheduled Castes and Scheduled Tribes and backward
classes may have a mixed population, the candidates should be selected from the
largest group.
(iv)
In localities where the pre-dominant population belongs to
any religious/linguistic minorities, candidates should be selected from those
minorities, but keeping in view the Scheduled Castes/Scheduled Tribes and
backward classes angle also since most of the minorities belong to one of these
categories.
(v)
There are some localities which are very much mixed and do
not have a specific community character.
Such localities may also increase in number in the future. Some of them may also have residents who are
pre-dominantly poor and are eligible for the benefit of the PDS. In the allotment of fair price shops/ration
shops in such localities, the reservation rules prevalent in the State should
be followed.
(vi)
The allottee should be selected by the whole community at a
plenary meeting in the presence of the concerned officers. On no account, the department or
departmental officers should select or impose whether from the same community
or from any other community. The
candidate selected should have the necessary minimum qualifications/eligibility
and he/she should be strengthened by an appropriate practical training in
matters like maintaining accounts books and filling up periodical reports. A Committee elected by the general body of
the locality should monitor and supervise the proper working of the fair price
shops. The Committee should give
particular representation to youths of the community of the locality and also
include a limited number of other sections of the society who have no clash of
interests with the main community of the locality.
(vii)
This arrangement will ensure social responsibility and
social accountability on the part of the fair price shop owners and also civil
society participation in the proper sense of the term, i.e. that segment of
people who are directly concerned.
(viii)
In each category, it is necessary to have a due proportion
of women. Fair price shops/ration shops
allottees other than to the Scheduled Castes, Scheduled Tribes and Backward
Classes should also be selected from economically poor sections of the
population from families eligible for PDS benefit.
(ix)
This scheme is intended to see that fair price shops/ration
shops do not become another area for professional shop owners and there is no
socio-economic hiatus between those running the fair price shops/ration shops
and the beneficiaries of the PDS. In
order to prevent this scheme from being defeated through Benami, it is
necessary to ensure that the allottees are given full and prompt support in
terms of fixed capital as well as working capital through a systematic
arrangement provided by the appropriate Finance and Development Corporation
(e.g. Scheduled Tribes Development Corporation, Scheduled Castes Development
Corporation, Minority Development Corporation, etc.) duly involving the banks.
(x)
Special attention should be given to especially
disadvantaged groups of Scheduled Castes, Scheduled Tribes and backward classes
like, for example, communities engaged in “scavenging”, etc. both in the
allocation of the fair price shops/ration shops and in the selection of
candidates who run the fair price shops/ration shops.
4.5 In respect of poor people who do not have the purchasing
power even to buy subsidised foodgrains available through PDS, it is suggested:
(a)
A massive programme of employment should be undertaken to
create purchasing power.
(b)
Existing schemes of employment generation under the poverty
alleviation category should be expanded to cover the entire needy population
for the requisite part of the year.
(c)
Their implementation should be strengthened by eliminating
the contractor system, which is often allowed by the backdoor.
(d)
This employment programme should provide employment at the
statutory minimum wage rate fixed in the State for the agricultural labourers
for at least 100 days in the year over and above the unsteady employment that
they have in the normal course.
(e)
The works undertaken through their labour should be of a
permanent nature of direct benefit to the classes of people who work on the
schemes like irrigation resources for their lands, development of their lands
or construction of common work places for themselves, for construction of their
houses and so on. On no account should
this population be put on work creating infrastructure for the other
classes.
(f)
In order that this benefit really reaches the people, this
should be enshrined as Right to work as a Fundament Right under article 21, by
a constitutional amendment introducing a new clause.
(g)
A substantial part of the wages should be paid in kind i.e.
foodgrains. The mechanism of these
payments could be in the shape of a card entitling the beneficiary to get
foodgrains of the prescribed quantity from the fair price shop/ration shop of
his area of residence.
4.6
(i) Similarly, there should
be reservation for Scheduled Castes, Scheduled Tribes and backward classes
including a due proportion of women from these categories also in the matter of
other allotments like petrol filling stations, LPG gas agencies, CNG agencies
and other agencies through which commodities are distributed by public
authority. The percentage of
reservation should be in accordance with the reservation percentage in force in
the State for the purpose of employment under the State.
(ii)
In order to keep out benami operators from other sections
and classes who take advantage of the
financial weakness of the Scheduled Castes, Scheduled Tribes and backward
classes allottees/licencees, it is recommended that the allottees should be
given necessary fixed capital and working capital support in full and in time
through the appropriate Finance and Development Corporation duly involving the
banks.
(iii)
Even in the case of categories not eligible for reservation,
poor boys and girls should be selected for the allotments and they should also
be given similar financial support through loans from appropriate financial
institutions and banks.
(iv)
While considering selection of candidates for allotment/
reservation due consideration should be given to minorities and especially the
Scheduled Castes/Scheduled Tribes/backward classes amongst the minorities.
4.7 In case of
benami operations of PDS or other allotments, laws should be made declaring such
benami operation as void and providing for cancellation of allotment/licences
after due process of law. Cancelled
allotments/licences/permits should be given to eligible persons from the same
social status. This law should also
make it clear that subterfuges like power of attorney documents, or agreement
to sale or transfer shall not be valid for the purposes of
allotments/reservations, etc. This is both in keeping with the Constitution as
well as the judicial pronouncements.
Such Benami transactions should also be declared as an offence
punishable under law. The person to
be punished under this provision should not be the allottees, but the rich
person who has taken advantage of the poverty, helplessness and the absence of
adequate institutional financial support for the allottees.
Establishment of Residential Talent Schools
5.1 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.
5.2 In view of
this and taking into account the Eighty-third Constitutional Amendment recently
passed by the Lok Sabha and the Rajya Sabha, it is suggested as follows:-
(i)
The
above Amendment should be further amended as not to give the State the option
to decide the manner in which elementary education should be provided and it
ought to provide the same type of quality education to all children, as the
discretion to the State to decide the manner in which elementary education
should be provided will in practical terms result in children of poor families,
particularly Scheduled Castes, Scheduled Tribes and backward classes being
palmed off with an inferior type of education in the name of non-formal
education, handicapping them in further stages of education and in life
opportunities. This is contrary to the
letter and spirit of the Constitution, which mandates equality including
equality of opportunity.
(ii)
Another
amendment required is to protect parents penalised where children are not found
in school because typically many poor children especially of Scheduled Castes,
Scheduled Tribes and backward classes belonging to agricultural labour and
other labour categories, artisans, etc. are not able to send their children to
school not because of unwillingness or lack of interest but because their
children’s labours contribute to the meagre family income. The remedy for this is not to penalise the
parents but to provide a widespread employment programme as recommended earlier
on the one hand and on the other hand to provide food or foodgrains or
foodgrains entitlement card or equivalent cash per Scheduled Castes, Scheduled
Tribes child who attends school, a system which has been followed in a few
States especially Himachal Pradesh.
This is in line with the Supreme Court judgement in the M.C. Mehta Vs.
Union of India regarding child labourers released from the factories in which
it was laid down that such children should be provided non-formal bridge course
of education followed by admission to formal educational institutions along
with employment for the parents of children or a compensation of Rs.100 per
month for delays. This type of payment,
which should be made more extensive covering all children of disadvantaged
categories of communities especially Scheduled Castes, Scheduled Tribes and
extremely backward classes properly categorised should not be viewed as
incentive but as a compensation for the opportunity cost incurred by the family
when their earning/economically supporting children are sent to school. The cost of this is a necessary part of the
cost free and compulsory education to be borne by the State in terms of the
Constitution and no alibi should be sought by or allowed to the State to
escape from this responsibility.
Protection
of Educational Interests of Weaker Sections
5.3 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.
5.4 Accordingly,
it is suggested as follows:
(i)
Reservation in government institutions
should be fully implemented. The
Scheduled Castes, Scheduled Tribes and backward classes students should be got
admitted in every good professional institution in the district/state/country,
whether public or private, in the same proportion as the percentage of
reservation in education for them existing from time to time and should be
educated there up to the level of their choice. The Government should meet the full cost of the education and
maintenance of each student in accordance with the actual cost of study in each
such institution and boarding and lodging expenses in a hostel attached to such
institution(s) or in the absence of such attached hostel, in other appropriate
hostel(s); and should also meet capitation fee, by whatever name known,
wherever charged.
(ii)
Reservation for backward classes also in
education should be introduced. One
residential school each for Scheduled Castes and one each for Scheduled Tribes
and one for backward classes or boys and one each similarly for girls should be
set up in each district on the pattern existing in Andhra Pradesh, with 75 per
cent of the seats going to the poor candidates of the specific category of
weaker sections and the remaining 25 per cent for the candidates belonging to
the other social categories of weaker sections and to the candidates of general
categories. In Districts where either
Scheduled Castes or Scheduled Tribes or backward classes are too small in
number, there may be one residential school jointly for both. This facility should be provided in private
residential schools also in view of the large number of private institutions of
general as well as specialised education at all levels set up in the past and
that may be set up in future and the advantage that the candidates passing out
of such institutions have.
A selection grade post
of teachers should be created and selection grade teachers should be appointed
only in these residential schools and similar residential schools for other
weaker sections;
(iii)
In addition, in districts where
residential schools are not possible, at least one good hostel each for Scheduled
Castes, Scheduled Tribes, backward classes boys and one each for Scheduled
Castes, Scheduled Tribes and backward classes girls should be set up in each
place where a high school/higher secondary school or college exists. These hostels should be designed in such a
manner that they may in future become the nucleus for residential schools. Where one hostel each is not adequate for
all Scheduled Castes, Scheduled Tribes and backward classes boys and girls, additional
hostels should be created in such places to the full extent necessary to
accommodate all Scheduled Castes, Scheduled Tribes or backward classes
students. No restrictions like
distance, rural/urban should be laid down, since the motivation for joining
hostels arises not only from considerations of distance but also from
considerations of facility for undisturbed studies.
(iv)
In view of the fact that a sizeable number
of students have qualified and increasing numbers should in future qualify from
educational institutions of general as well as specialised/professional
education in foreign countries and the career advantage that candidates passing
out from foreign institutions have in this country, the Government should send,
at its cost fully covering fees and other mandatory payments, maintenance and
travel cost, Scheduled Castes, Scheduled Tribes and backward classes candidates
in the same proportion in relation to the general category candidates who go to
such institutions on their own or otherwise, as the percentage of reservation
in education fixed for them from time to time, to good institutions in each
such country in every area of education, every year.
(v)
Both the Union Government as well as the
State Governments must find the necessary budgetary resources for this
purpose. This can be done by avoiding
wasteful expenditure of different types.
During the transitional phase, shortages should be met by innovative
steps existing in other countries like collection of an ‘education cess’ to be
exclusively funded and utilised for this purpose and new mechanisms like
collection of a reasonable amount from professionally educated and trained in
India, who go abroad for taking jobs.
Once this principle is accepted, suitable practical mechanisms can be
worked out.
Article 46
of the Constitution obligates the State to provide education to the weaker
sections of the people in particular the Scheduled Castes/Scheduled
Tribes. The word ‘education’ has been
used in a particular sense while article 45 restricts to elementary
education. The State shall, i.e. the
Union of India and the State Government concerned shall provide education at
all levels to the children belonging to Scheduled Castes and Scheduled Tribes
according to the eligibility criteria operating in this regard. The scholarships provided to the children
are inadequate and reach the children practically at the end of the academic
year. In consequence due to non-payment of scholarships or non-availability of
the capacity to pursue the education, drop out rate is higher among the
children belonging to the Scheduled Castes and Scheduled Tribes and the most
backward classes particularly children from the first generation families. The
rate of scholarships should be reviewed well in advance once in two years. Revolving fund should be created and the
Director/Commissioner of Scheduled Castes/Scheduled Tribes should be made the
authority to disburse the amount. Since
the child is admitted in the educational institutions, proper mechanism should
be worked out that the educational institutions give information to the
concerned district authority and the district authority in consultation with
the Director/ Commissioner of Scheduled Castes/Scheduled Tribes disburse the
amount of scholarships to the students.
At the middle level of the course of education, i.e. under the
graduation/post graduation level of education, the scholarship amount remains
inadequate to meet the costs of living, therefore, they should also be
adequately taken care of. In the
post-graduation research fellowships, more scholarships should be created and
made available to the eligible and selected candidates for the purpose of
pursuing such education. In view of the
Preeti Srivastava case, declared by the Supreme Court prohibiting relaxation of
the eligibility marks for admission into the post graduation and prohibition of
reservation in higher education like Ph.D., etc. without reference to the
constitutional obligation under article 46 of the constitution, the children
belonging to the Scheduled Castes and Scheduled Tribes are prevented from
pursuing the higher education in the professional courses and the seats
allotted to them remain unfulfilled and are filled by the general
candidates. With a view to providing
opportunities and facilities to the Scheduled Castes and Scheduled Tribes for
higher education, constitutional amendment is necessary. Therefore, a separate provision in article
15 like article 15(4A) be brought about expressly mentioning “The State shall
make special provision for the educational advancement of the Scheduled Castes
and Scheduled Tribes providing education to them at all levels of courses of
study with relaxed qualifying marks for admission consistent with the
percentage of the seats reserved for them in the appropriate courses of study”.
Establishment of Residential Talent Schools
6.1 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.
6.2 In view of the above, it is suggested that:
(a)
residential talent schools should be established for the
Scheduled Castes, for the Scheduled Tribes in every district of the country, one
each for SC boys, SC girls, ST boys, ST girls as one of the important package
of comprehensive measures required for the comprehensive and integrated
development and empowerment of SCs, STs and BCs.
(b)
In each school the students of the specific of weaker sections
should have the bulk of the seats (say 75%) and the remaining should go to the
students belonging to other social categories of weaker sections and to poor
students of the general category.
(c)
Some of these schools for backward classes should be located
in districts where BCs belonging to religious minorities are relatively more
concentrated so as to facilitate BCs of such minorities getting adequate number
of seats.
(d)
These schools should necessarily be residential so that they
could be devoted to grooming the children for high competitive educational
excellence to serve the country as administrators, scientists and in high
professions combining excellence with sensitivity of awareness of the plight of
the weaker sections and the poor in the country.
(e)
These schools should cover Class VI to Class XII.
(f)
In order to maintain excellence, the qualification of
teachers should be not less than post graduation and a selection grade posts of
teachers should be created to be appointed only in these residential talent
schools.
(g)
While the aim should be to provide at least one such school
for each social category mentioned in each district, in case finance is a
problem a beginning may be made by setting up such schools in 100 districts
which have relatively greater population percentage of Scheduled Castes and 50
districts with relatively greater population percentage of Scheduled Tribes,
listed in this Report. Alternatively,
in order to ensure that SCs and STs in all States get the benefit of this
scheme, the districts could be apportioned among States in accordance with
their share of the SC population of the country and ST population of the
country respectively (suitably rounded off) and in each state districts be
selected in the decreasing order of the population of SCs and STs respectively
such that the same total is achieved.
In each State the schools should be distributed in such a manner in the
selected districts such that about 1/3rd of the schools goes to each
of the categories of the SCs & STs.
(h)
So far funding is concerned, a provision of Rs.250 crores
was provided in 1996-97 for residential schools for girls of SCs, STs and BCs
in low literacy districts. No school
has come under the scheme because of certain unjustifiable reasons. This amount can be utilised for the scheme
and at least the same amount of budgetary provision may be made from year to
year until saturation point is reached.
(i)
At the level of Central and State Governments these schemes
should be in charge of the Ministry/Department entrusted with the welfare of
SCs, STs and BCs such as the Ministry of Social Justice and Empowerment and the
Ministry of Tribal Welfare at the Centre and the Departments of Social
Welfare/SCs, STs and BCs Welfare in the States where two or more
Ministries/Departments are concerned with SCs, STs and BCs a suitable coordinative mechanism can be created.
(j)
In each State under the concerned State Department’s charge,
an autonomous registered society could be formed for the management of the
residential schools in the State. In
the executive committee of the Societies representations should be provided for
concerned officials of the Department(s) in charge of SCs, STs and BCs, Finance
and Education and also for eminent educationists belonging to SCs, STS and BCs
as well as others from self-help groups, educational societies with high
reputation and experience particularly in the field of education of weaker
sections and voluntary organisations concerned with SCs, STs and BCs. There is
adequate base of experience in Andhra Pradesh where such schools have been in
existence since about two decades and have produced good results and to some
extent in Karnataka also. Their
experience can be drawn upon with suitable modifications leaving sufficient
initiative with each State to make modifications appropriate to that
State. Efforts in this direction
started in 1996-97 in the Ministry of Social Justice and Empowerment (then
known as Ministry of Welfare) should be resumed and completed without further
loss of time. The State Society may also set up units in districts for
management of the residential schools in the district in which may be
represented the District Collector, District Officers of the Education
Department and Department in charge of SCs, STs and BCs and also representatives
of voluntary organisations and educational societies of high reputation and
experience in the educational development of weaker sections.
(k)
In districts where initially such residential schools are
not set up, until their turn comes, a residential hostel for SCs, STs and BCs,
one each for SC boys, SC girls, ST boys and ST girls and BC boys and BC girls,
(75% for the specific categories and 25% for others as recommended in the case
of residential schools) should be set up as a nucleus for future residential
schools.
(l)
Selection of children for admission into the schools can, as
in the Andhra Pradesh model, be on the basis of a selection examination after
Class V with due weightage for rural residential children, children from
families of agricultural labourers, safai karamcharis, bonded labourers and
released bonded labourers, nomadic, semi-nomadic communities, vimukta jatis and
with provision that if any community of SCs, STs is not able to come in the select list at least one, namely the
best of the candidates of that community is selected, so that the object is
achieved.
Prohibition
of occupations that are degrading and offend human dignity: Employment of
Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
7.1 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, namely, “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.
7.2 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.
7.3 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.
(a)
Accordingly, it is suggested that the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 be amended
along the lines mentioned above so as to bring it within the concurrent powers
of the legislation thereby making it automatically applicable to the entire
country.
(b)
While it is necessary to put an end to scavenging by human
agencies at the earliest, it should be done in a manner that the existing safai
karamcharis do not suffer loss of employment or income. Therefore all out effort should be
concentrated on getting existing safai karamcharis shifted to other
occupations. In respect of safai karamcharis who are employees of
municipalities and other urban local bodies, these bodies should be required
straightaway through executive instructions followed by appropriate legislative
enactments to liberate their safai karamchari employees from the occupation of
safai (scavenging) and shift them to any other work not connected with safai
under the municipal body, providing them with training where necessary and on a
salary and remunerations not less than what they draw currently. There are a number of activities needing
attention in each municipal area which are now neglected. While liberation and shifting to other
occupations are undertaken, the municipality should also place house owners on
notice that from a date to be specified safai karamcharis will not be available
for scavenging service and therefore they should make alternative arrangements
for this in terms of the Act of 1993.
(c)
Regarding the other category of safai karamcharis who are
privately employed on remuneration directly from house owners, it is suggested
that they should be liberated by training every existing safai karamchari or a
member of his or her family in an alternative employment not connected with
scavenging, providing them, employment/ self-employment on stable basis so that
they will not be any more compelled to do safai service.
(d)
Every child of the family of the existing safai karamcharis
should be admitted to residential schools under the existing scheme of the
Government of India providing for residential schools/hostels and scholarships
for the children of families engaged in unclean occupation namely safai,
flaying and tanning. The scheme should
be expanded so that there is adequate number of residential schools/hostels to
cover all the children of safai families.
(e) The Central Monitoring
Committee for the rehabilitation of Safai Karmcharis and their dependents set
up by the Government of India in 1991 should be re-activated in the form as
laid down then straightaway and subsequently improvements made in the scheme by
providing for larger representation of safai karmcharis in the committees at
the national, State, district and municipal levels. The need for this Central and other Monitoring Committees at all
these levels has not vanished with the establishment of the National Commission
for Safai Karmcharis. In fact, the
continued functioning of the Central, State, district and municipal level
committees will facilitate the functioning of the National Commission for Safai
Karmcharis also in addition to providing active inputs for liberation and
rehabilitation at all levels. According
to the scheme of these committees, meetings are to be held every month. Presiding Officers of these committees (for example, District Collectors/Deputy
Commissioners at district level and Chief
secretary at State level) should be required to hold these meetings
regularly. Regular and effective
functioning of these committees should be a specific item of evaluation of
officers in the Annual Confidential Reports to provide inputs for grant or
refusal of Social Justice Clearance at the time of their consideration for
promotion.
(f) Having made these
arrangements, the Act should be further amended to completely prohibit, whether
directly or indirectly, employing any person as safai karmchari for scavenging
from a date to be specified in the Act and any such employer should be
punishable with imprisonment and (not or) fine. This sequence is suggested so that the amendment to the Act may
come after arrangements are made to make sure that this will not adversely
affect the employment of safai karmcharis, whether employed by the municipal
body or privately.
(g) The liberation of people
from safai karmchari work and the liberation of specific communities who have
been subjected to this occupation by denying them any other avenues should be
accepted as a major national goal, the progress and implementation of which
should be reviewed by a national committee of which the Prime Minister is the
chairperson and the Chief Ministers are members, apart from Minister for Social
Justice and other relevant ministers of the Centre that it is possible to
secure complete liberation of safai karmcharis without adversely affecting
their income or employment is established by the experience of a few States which have already achieved this goal.
(h) Until this goal is
achieved, it is necessary to ensure that interests of safai karmcharis are
protected in the following respects:-
Ø
stopping the practice of not paying their salary regularly
prevalent in a number of municipalities.
Ø
stopping the practice of not paying their retirement
benefits promptly on retirement
Ø
providing them satisfactory residential accommodation of
their own in a clean locality
Ø
stopping and prohibiting the practice adopted increasingly
by Central and State Governments and public sector undertakings of bringing
safai work under contract system making these people do the same work for less
remuneration and on unfair terms and instead paying the contractor who is
usually from a different social and economic
class.
Ø
Stopping the practice of giving only safai work and not
the safai supervision work to
educated children of deceased safai karmcharis
given employment on compassionate
grounds - an unfortunate
practice indulged in by some officers in charge of some municipalities -
without giving thought to the serious resentment this causes. They should be given employment under the
municipality commensurate with their educational
background.
(i) disabilities to which
the National Commission for Safai Karmcharis has been subjected to ab initio
should be removed by the Government of India. It should be given the status comparable with that of National Human Rights
Commission and equipped adequately to
perform its functions satisfactorily.
Human Dignity -
Elimination of Untouchability and Prevention of Atrocities
8.1 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.
8.2 In view of the fact that Untouchability
continues to rampant in old classic forms as well as in new form in life with
modern development and the continuance of atrocities in virulent form, it is
suggested that the following measures may be taken.
8.2.1 The following amendment should be carried out in the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:-
section 14
should be amended as follows:
"Special
Court - (1) For the purpose of providing for speedy trial, the State Government
shall, with the concurrence of the Chief Justice of the High Court, by
notification in the official gazette, establish in each district, a Court of
Session to be a Special Court exclusively to try the offences under this Act.
Provided that in respect of
districts where there are no atrocities against Scheduled Castes and Scheduled
Tribes at all, the Government may, with the concurrence of the National
Commission for Scheduled Castes and Scheduled Tribes, either exempt such
district or districts from this provision or combine such district (s) with any
other neighbouring district(s) for the purpose of establishing exclusive
special courts;
(2) The special courts set up under this
provision shall not be the same as any of the existing court of session;
(3)
The exclusive Special Courts shall try offences under this Act on day-to-day basis.”
This set of amendment is necessary
because the delay in the trial and punishment of atrocities is an invitation to
commission of more atrocities with impunity.
8.3 Sub-section (2) of Section 3 of the P.O.A Act should be
amended to include the following crimes against Scheduled Casts and Scheduled
Tribes as atrocities and to make them punishable with imprisonment for a term
of not less than six months but which may extend up to seven years with fine:-
-
Social Boycott;
-
Economic Boycott;
-
Social Blackmail;
-
Economic Blackmail;
This
amendment is required because these kinds of atrocities actually occur in
villages and their continued omission is a serious lacunae.
8.4 (a) Sub-section (2) of Section 3 should be
amended to provide for death sentence for murder in addition to imprisonment,
as provided in Section 302 of the Indian Penal Code and for mandatory death
sentence for multiple murders, multiple or mass rapes and gang rapes. This amendment is extremely important for
the following reasons:-
at the
stage of formulation and drafting of the Bill an anomaly has been created
whereby for the offence of murder death
sentence is possible if the convict is SC/ST and the victim is non-SC/ST while
in the reverse instance no death sentence is possible on account of lacunae in
the POA Act. While all murders and
rapes are heinous and deserve to be punished promptly and appropriately,
multiple murders or massacres of SCs and STs and multiple rapes of SC and ST
women and gang rapes of SC/ST woman
intended to terrorize the whole community whenever they display the temerity to demand slightest improvements in wages or possession of lands
they have been allotted by law or allotment of lands they are entitled
to or exercise of civil rights they are
entitled to under the law. Such terror crimes
against the whole community can be curbed only by mandatory death
sentence.
(b) Section 15 of the P.O.A Act should
amended as follows:
"15
(1) Special Public Prosecutor - For every Special Court, the State Government
shall, by notification in the Official Gazette, appoint a Public Prosecutor or
appoint an Advocate who has been in practice as an Advocate for not less than
seven years, as a Special Public Prosecutor, for the purpose exclusively of
conducting cases under this Act in that court;
(2) Special Investigating Officer - For
every Special Court, the State Government shall, by notification in the
official gazette, appoint a Police Officer as Investigating Officer exclusively
for the purpose of investigation in respect of cases of offences under this
Act;"
(c) The following new Section should be added in the Act:-
"Section
15 (A)
(1)
The Special Investigating officers and Special Public
Prosecutors shall be appointed from panels prepared on the basis of their
record of and reputation for upholding the Rights of Scheduled Castes and
Scheduled Tribes especially their rights to protection from violence.
(2)
The Special Courts and
the Judges, Special Public Prosecutors and Special Investigating
Officers shall be provided with adequate staff and facilities so that the
discharge of their duties is not impeded.
(3)
The posts of Judges, Special Investigating Officers
and Special Public Prosecutors shall never be kept vacant.
(d) In order to make the protection of
Section 10 available to Scheduled Castes
also, the words "or in any other area of any district" should
be added 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….."
(g) In view of the scope for rigid
misinterpretation of Section 3(2)(v) of the Act the words "against a
person or property on the ground that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to such member" should
be substituted by the words "against a person or property belonging to a
member of a Scheduled Caste or a Scheduled Tribe".
(e) The victims of atrocities and their families should be provided with full financial and other support to
become economically self-reliant without their having to seek wage employment
from their very oppressors and classes of oppressors and the State shall
immediately take over the education of the children of such victims/such
families in the best schools and colleges of their choice available in the
State/in this country up to the level of the choice of such children/families
fully at State cost including the cost of their food and
maintenance;
(f) In case of collective attacks on
Scheduled Castes or Scheduled Tribes in any village or urban locality, the
State should immediately provide full financial and other support and take all
steps to make all SC and ST families of that village or urban locality
economically self-reliant without any of their members having to seek wage
employment from any individual and take over the education of all SC and ST children of such village/urban
locality in the same manner and to the same extent as mentioned in para 3
above.
(g) Every SC and ST victim of rape
should be forthwith given a permanent
government/quasi government job of the highest level appropriate to her
educational qualifications in the Ministry/Department/ PSU/Public
Financial Institution/other public
sector organization of her choice and at least of the Group D/Class-IV level if she has no educational qualification
at all. If there is no vacancy, a
supernumerary post should be deemed to have been created forthwith for her
appointment. The District Collectors/Heads of Departments/Heads of PSU/Heads of
Public Financial Institutions/of other Public sector organizations should be
authorized and mandatorily required to make such appointments with effect from
the date of the atrocity. The State
should also take over the responsibility of arranging her marriage if she is
unmarried or divorced or widowed at the time of the rape.
(h) Monetary compensation to the victims of
atrocities or next of kin should be paid immediately on registration of the FIR
in the concerned police station irrespective whether the offence under POA is
incorporated therein or not.
(i) A special wing of the Rapid Action
Force should be constituted to deal exclusively with Atrocities against SCs and
STs and similar wings/forces should be constituted in each state.
(j) POA should be amended incorporating a
provision that notwithstanding the provisions in the Evidence Act, the
contradictions between the statement and FIR on the one hand and evidence given
to the court, the Court shall assume that the evidence in the court is the
correct version and be considered accordingly.
(k) The measures at paras (2), (3) and (4)
above should be incorporated in statutory rules under clause (iii) of
sub-section (2) of Section 21 of the POA Act.
But initially, they can and should be implemented without waiting for
the issue of such Rules.
(l) A special scheme should be drawn up to
effectively prevent any form of disrespect to the statues of Dr. Babasaheb
Ambedkar, as aberrent behaviour in this regard has become a form of collective
atrocity against SC and ST apart from being an insult to the nation and
thereafter this should be suitably incorporated in the POA Act.
(m) Various and elaborate guidelines
regarding precautionary and punitive rehabilitation measures to deal
effectively with atrocities contained in the rules under the Act and DO letter
of Home Minister, dated 10.3.1980 sent to all Chief Ministers should be
reiterated and enforced.
(n) This is one of the few Acts which
contains a rare provision placing mandatorily on the State Government the responsibility to take such measures as
may be necessary for the effective implementation of the Act and spelling out illustratively some of the possible measures and similarly
placing a responsibility on the Central Government to coordinate the measures
taken by the State Governments. The
implementation of this Act and the
rules and the various guidelines and effective curbing of atrocities should
be one of the specific items to be
taken into account in the context of grant or denial of Social Justice
Clearance at the time of promotion of officers.
(o) In view of the fact that in some parts
of the country particularly in the south converts to Christianity from specific SCs are subjected to crimes and atrocities as their
exact Hindu counterparts are (difference of religion making no difference in
this regard) and the fact that trials in such cases get bogged down on the
issue whether this is an atrocity since they are not SC on account of
conversion. Clause (c) of section 2 of
the Act should be amended by adding the following words at the end of it
"and converts to Christianity from Scheduled Castes". An explanatory note may be added that this is only for the purpose of this Act and not for any other purpose since
the question whether SC converts to Christianity should be included in
Scheduled Castes or not by amending the proviso in Presidential Orders is a
different issue to be dealt with separately by the appropriate Ministry,
(p) In view of the fact that the main perpetrators of the crime sometimes co-opt a few SCs with
them and take advantage of local differences among the SCs and sometimes they
promote and engineer crimes but get them executed by some members of Scheduled Castes, the Act should be suitably amended to bring such crimes and
atrocities within the purview of the definition of atrocities under the Act.
(q) In view of the fact that in some cases
of atrocities while most of the victims are Scheduled Castes or Scheduled
Tribes there may also a few non-Scheduled Castes/Scheduled Tribe people as for
example in the Belchi case. The Act should be amended to bring such
atrocities and crimes within its purview.
8.5 Regarding eradication of untouchability and effective
implementation of the Protection of Civil Rights Act, 1955 (PCR Act), multi
pronged measures covering human rights education, moral education and punitive
action under the Act should be taken, in view of the widespread prevalence of
untocuhability.
8.6 As part of this, human rights education, specifically
focussing on the evil practice of untouchability, the cruelty inherent in it, irrational concepts on which this is
based, the mind set, the harm it does
not only to the victims but also to the society as a whole and the
nation itself, is one of the measures
which will be helpful. The curriculum
for this must be prepared very carefully
and imaginatively associating educated members, scholars, social workers
from the SCs and those who have been fighting against untouchability. A powerful democratic movement covering all
levels including villages is also necessary.
This should be organized by a
combination of political parties, NGOs and members of the public service and also enlightened members
of the general civil society. This
movement should on the one hand stand shoulder to shoulder with SCs in their
assertion of their civil rights and on the other hand educating the non-Scheduled Caste non-Scheduled Tribe public and
persuade them to cooperate. This
movement will be more successful if the
Chief Ministers and leaders of ruling parties at the Centre and States take the initiative as has been undertaken
by the Chief Minister of Andhra Pradesh since November 2000 on the basis of the
recommendations of Justice Punnayya Commission.
8.7 In view of reprisals such as social and economic boycott that
follow this movement even started by Chief Ministers as experienced in Andhra
Pradesh, the State should immediately intervene with adequate rural employment
programme which will gainfully employ all the families of the victims and
communities of that village. Land
reforms and land distribution in that village in favour of the victims and
families should be undertaken, full financial and other support provide
and such measures taken to make them
self-reliant The State should also
suspend arms license and confiscate arms available with any individual.
8.8 On the punitive side, the following steps should be taken:-
(i)
The Protection of Civil Rights Act, 1955 (PCR Act) should be
implemented sincerely, seriously and honestly.
(ii)
Inter-alia a Special Mobile Court should be established in
each district exclusively for trying cases under the PCR Act on the spot. The optional provision at clause (iii) of
sub-section (2) of section 15(A) of the PCR
Act should be made mandatory by
an amendment of the Act, but this provision can and should be implemented
without waiting for the amendment.
Where
there is no practice of "untouchability" at all in any district, the
government may, with the concurrence of the National Commission for SC &
ST, either exempt such district or districts from this provision or combine
such district(s) with other neighboring district(s) for the purpose of
establishing special mobile courts under this Act.
(iii) It should be made the
personal responsibility of every District Collector and Superintendent of
Police, to ensure that all measures as may be necessary for ensuring that the
rights arising from the abolition of "untouchability", are made
available to, and are availed of by, the persons subjected to any disability
arising out of "untouchability", as the State Government is mandated
to do by Section 15(A) of the PCR Act.
The measures taken by them should be one of the specific criteria; of
Social Justice Clearance for every officer to become eligible for future
promotions.
(iv)
Provision of a separate cell in every police station for
investigation and prosecution under the Act will also be a measure to
effectively combat untouchability. Only
places where untouchability does not exist
identified in consultation with the National/State Commission for
Scheduled Castes and Scheduled Tribes should be exempted from this
requirement.
(v)
In areas of occurrence of untouchability and the sites of
their occurrence like temples, wells, ponds and such places where
untouchability is practiced with open
brazenness mobile teams of police and
welfare department should go to those places and sites and eliminate the
discriminatory practice first by persuasion and if that fails by resorting to
punitive action.
(vi)
Since such places and sites are well known and
untouchability is practiced with open brazenness, if no prompt action is taken
by police and other officers, they should be punished as abettors.
Adequacy of representation in Public Services
8.9 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.
8.10 Accordingly, the following suggestions are made:
(i)
In
view of the fact that an Act passed by the legislature has got greater power
than executive instructions and ensures greater transparency and makes it less
easy to spring upon the people executive orders like the one which tampered
with the pre-1966 roster, downgrading the roster position of SCs and STs from 1
and 3 to 7 and 13, under the pretext of implementing the Supreme Court’s
judgement in the Sabharwal case, reservations should be immediately 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) Acts. The Bills
ascending in the Parliament as Private Member Bills at the instance of
individual member of political parties
be adopted as official Bills and steps taken to have these passed by both
Houses of the Parliament.
(ii)
This Act should provide for all aspects of reservations
pertaining to the Scheduled Castes and Scheduled Tribes. The constitutional
amendments in articles 16 and 15 be suitably brought about. The pending Bill introduced in the Parliament be adopted as official Bill. The constitutional Amendments and the two
Acts be brought in 9th Schedule.
(iii)
Inter-alia it should provide for the establishment of
Aarakashan Naya Adalats (ANA) or Tribunals for Justice in Reservation (TJR)
with its main bench at Delhi and other benches in every place where Central
Administrative Tribunal has got benches.
These Tribunals should have the status of High Courts and appeals
therefrom should lie only to the Supreme Court.
(iv)
The Chairperson, Vice Chairperson and other members of this
Adalat and its benches should be appointed from panels of names of persons who,
while possessing the requisite formal qualifications for High Court level
Tribunal as in the case of CAT shall in addition necessarily have the
qualification of having implemented reservation fully and sincerely in their
respective areas of earlier activity.
(v)
These Tribunals should have jurisdiction in respect not only
of reservation in appointments and posts in the Government but also the public
sector, banks and other financial institutions, universities and all other
institutions and organizations to which reservation is applicable and is made
applicable from time to time.
(vi)
Since there are unfortunately persons and authorities who
allow their biases based on their own caste origins to subvert the correct
implementation of the constitutional provisions regarding reservations, the Act
should contain a penal provision including imprisonment for those convicted of
willfully or negligently failing to implement reservation in full.
(vii)
The Central Government and State Governments should
forthwith issue orders restoring the pre-1996 roster so as to undo the harm
done to SCs and STs under the pretext of implementing the Sabharwal judgement;
this does not require a constitutional amendment, but in order to prevent scope
for any such tampering with the roster in future, this should be brought within
the purview of the Reservation in Services Act mentioned above.
(viii)
While appreciating the enactment of three Constitution
Amendment Acts, in order to undo the harm done to the long pre-existing rights
of SCs and STs in reservation, these should be put into effect quickly so that
on the one hand the negative consequences of the last five years can be rectified
in practice and the benefits of these amendments may begin to flow again the
full measure to the SCs and STs.
(ix)
The Central Government and State Governments should also
forthwith amend the executive order issued in terms of the newly introduced
Clause (4A) of article 16 and remove the limitation of reservation promotion
only upto the first level of Group/Class I and allow reservation in promotion
to any and every level in accordance with the letter and spirit of Clause (4A).
(x)
Categories of services excluded from reservation should be
reviewed since educated and qualified candidates of SCs and STs have since
become available through the process of education and if still the review shows
any few categories for which qualified candidates are not available special
programmes should be launched to build up qualified manpower of SCs and STs in
the relevant disciplines.
(xi)
Since it is important from the point of view of social and
national integration that the delay in the recommendations of and provision of
reservation for BCs should not be compounded by truncation or delay,
reservation for backward classes also should be brought under a statute to be
named as Backward Classes (Reservation of Appointments and Posts and of Seats
of Educational Institutions) Act which, while containing the specificities of
reservation for backward classes should also contain provisions for Arakashan
Nyay Adalats or Tribunals for providing Justice in Reservation, penal
provisions, etc. as in the case of the statute in respect of SCs and STs.
(xii)
For the same reason it has to be ensured that on no account
should any shortfall in the quantum of reservation for BCs be allowed to occur
in any year in any institution at any level, so that unmanageable backlog does
not grow in the case of BCs as was allowed to grow in the case of SCs and STs
through half-hearted implementation in the past.
(xiii)
In order to remove the anomaly of absence of reservation in
seats in educational institutions for BC while providing them reservation in
jobs, reservation in seats should be immediately introduced for BCs.
(xiv)
In view of the wide range of variations in the level of
backward classes among different castes and communities included in the list of
backward classes, the Government should in the light of the Supreme Court
judgement in the Mandal case and also done by many State Governments with
experience in the backward classes’ reservation since long like Karnataka,
Andhra Pradesh, Kerala and Tamil Nadu, categorise the backward classes on a
rational basis into backward classes/more backward classes/most backward
classes/extremely backward classes and apportion the total reservation for BCs
among different categories keeping in view the population proportion and
weightage for relatively greater degrees of backwardness but also providing
that in case of non-availability of adequate number of candidates in any year
in any lower category of backward classes the resultant vacancies shall be made
available to candidates of the next higher category of backward classes so that
no scope is given for transfer of any post reserved for backward classes to the
open category and so that there will be no suspicion that non-availability of
candidates is being engineered in order to secure transfer of backward classes
reserved posts to the open category.
(xv)
It is extremely important that categorization as above
should be done only through a high power authority of unbiased experts purely
on the objective data of indicators of relative backwardness so that there is
no scope for suspicion of this mechanism of social engineering being misused
for other purposes or with ulterior motives.
(xvi)
In the course of the on-going process of privatization of
public sector undertakings and other such bodies, in order to avoid any adverse
effect on the existing reservation for the SCs, STs and BCs in these public sector undertakings and
other bodies, the provision of reservation for SCs, STs and BCs. should
continue to be mandatorily applicable even after privatization or disinvestment
and it should be mandatorily stipulated in every Memorandum of Understanding on
privatization or disinvestments that the policy of reservation in favour of
SCs, STs and BCs shall be continued in that public sector undertaking and other
body in the same form as it exists in the Government with such amendments as
may be made from time to time.
(xvii)
This provision of mandatory continuance of the policy of
reservation through MOU should be incorporated in the two Reservation Acts
mentioned above. A supplementary MOU in
this regard should be executed in respect of PSUs or other public sector bodies
already privatized or disinvested/private sectors receiving financial/state
assistance by way of loans, etc.
Representation in Higher Judiciary
8.11 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.
8.12 In view of the above and also taking into account the weighty
opinion against the formal introduction of reservation in the higher judiciary,
it is found that over fifty years, the progress of education, however tardy,
has certainly produced adequate number of persons of the SC, ST and BC in every
State who possess the required qualifications, having necessary integrity,
character and acumen required for Judges of Supreme Court and High Courts for
appoint as Judge of the superior judiciary.
A way could and should, therefore, be found to bring a reasonable number
of SCs, STs and BCs on to the Benches of the Supreme Court and High Courts in
the same way in which, in practice, it is found is followed in respect of
advocates from different social segments/regions of the country/States or
different religious communities so that on the one hand the overwhelming opinion
against formal reservation in the Supreme Court and High Courts is respected
and on the other hand, the feeling of alienation of the vast majority of
Indians comprising SCs, STs and BCs
that, in spite of having persons of requisite calibre and character among them,
they are being ignored in the selection of appointment of Judges, is resolved.
Allocation and Management of funds –
Revitalization of Special Component Plan for the Scheduled Castes and Tribal
Sub-plans
9.1 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.
9.2 In view of the above and the supreme importance of ensuring
that the developmental plans for the country and Special Component Plan for
Scheduled Castes (SCP) and sub-Plans for Scheduled Tribes (TsP) are made
powerful instruments of social transformation based on the vision of economic
liberation, educational equality and social dignity of the Scheduled Castes and
Scheduled Tribes to effectuate the existing national policy consensus, and
taking into account the failure to follow or adequately ensure this quantum of
flow in requisite quality, it is suggested as follows:
(1) There
should be a National Development Council for SC and ST consisting of the Prime
Minister as its Chairperson, the Deputy Chairperson of the National Scheduled
Castes and Scheduled Tribes Development Authority (referred to lower down), Minister(s)
in charge of Scheduled Castes and Scheduled Tribes Development and Welfare,
Chairperson and Dy. Chairperson of the National Commission for SC and ST,
Finance Minister, Ministers of other development sectors, Chief Ministers,
Experts and Scholars, which shall perform the same role in respect of Special
Component Plans for Scheduled Castes and Tribal sub-Plans for Scheduled Tribes
as has been done hitherto by the National Development Council with regard to
general plans of development;
(2) There
should be a National SC and ST Development Authority having a wing each to
respectively concentrate from SCs and STs constituted with members and experts
drawn on SCs, STs and others with empathy for SCs and STs, with faith in social
justice and experience in the development and empowerment of SCs and STs,
representatives of authentic SC and ST voluntary
organisation/associations. This
authority should be responsible for formulating and approving National and
State Plans – Annual, Quinquennial and perspective- based on the developmental
needs of SCs and STs and their priorities keeping in view the overall dimension
of socio-educational liberation and socio-economic equality.
(3) There
should be similarly constituted State Scheduled Castes and Scheduled Tribes
Development Authorities.
(4) The
population equivalent proportion of the total plan provision of the Centre and
each State/UT should be set apart as the Special Component Plan for SCs and STs
and placed at the disposal of the National SC and ST Development Authority and
State SC and ST Development Authorities.
These authorities will then make schemewise, programmewise and
sector-wise allocations of outlay based on the developmental needs and
priorities of the Scheduled Castes and Scheduled Tribes, sanction appropriate
funds to the concerned Ministries/Departments/other organisation and thereafter
supervise, monitor and direct the implementation of the developmental plans so
as to ensure the achievement of the purpose of the socio-economic liberation of
SCs and STs and their socio-educational equality in relation to rest of the
society.
(5) There
should also be constituted District SCs and STs Development Authorities in each
District, consisting of SC and ST Chairpersons and Members of District and
Intermediary level Panchayat bodies, SC and ST Chairpersons and Municipal
counsillors in the District, SC and ST MLAs and MPs, District Collectors, Heads
of Departments relevant to SCs and STs, experts, representatives of NGOs who
have been working sincerely for SCs and STs.
These District Authorities should, on the one hand, provide the inputs
to the National and State SCs and STs Development Authorities for planning and
monitoring purpose and on the other hand be the main implementation authority
of the SCPs and TsPs in the District so as to ensure their objective.
(6) The Prime
Minister should be the Chairperson of the National SC and ST Development
Authority. Its Deputy Chairperson
should be full-time and have the rank of a Union Cabinet Minister and
invariably attend the Cabinet meetings.
Similarly the State/UT Chief Minister should be Chairperson of the State
SCs and STs Development Authority and its Deputy Chairperson should be full
time and have the rank of a State Cabinet Minister and invariably attend the
State Cabinet meetings.
(7) The NDC
for the SC and ST and these Authorities should be given constitutional status
by making suitable provision in the Constitution.
(8) While
releasing funds to village panchayats/local self-government at different
levels, Special Component Plan and Tribal sub-Plan should be earmarked in them
to be exclusively used for infrastructural work of the SCs and STs so as to
build up the economic and social infrastructural assets of the SCs and STs.
(9) This
structure, while ensuring that plans are formulated as mentioned above, will
ensure that for obvious economic and social reasons the following schemes and
programme of actions are undertaken on a massive scale.
(a)
A Comprehensive National Programme of Minor Irrigation i.e.
irrigation of all irrigable but unirrigated lands, owned and held by SCs and
STs through wells, community wells, bore-wells, tubewells and community
tubewells, Bandheras, check dams, lifts and other such minor irrigation sources
(which will at one strike liberate a substantial proportion of SC and ST
families from the compulsion of agricultural wage – labour, bonded labour and
child labour and migrant labour);
(b)
Endowing every landless rural family of SCs and STs with at
least a minimum extent of land through proper implementation of land ceiling and
redistribution legislations; full and sincere implementation of un-implemented
Supreme Court judgement which will neutralise the illegal reduction of
ceiling-surplus lands, distribution of assessed and un-assessed waste
lands/gair mazaruam lands not required for any legitimate public purpose/use
and ensuring actual occupation and
peaceful and undisturbed possession of land allotted to SCs and STs by the
allottees; allotment of Bhoodan lands; long term lease of temples and other
such institutions on the basis of the average rentals of past few years; with
full financial provisions and facilities for development of such lands through
irrigation under the National Programme of Minor Irrigation mentioned at (a)
above;
(c)
Implementation of Minimum wages Act for wage labourers by
identifying the largest employing land
owners and ensuring compliance with the Act by them;
(d)
Proper implementation of the policy of harmonious
protection of Scheduled Tribes and forests;
(e)
Total liberation and full rehabilitation of bonded
labourers and elimination of child labour practice;
(f)
Total liberation and full rehabilitation of Safai
Karamcharis (“Scavengers”);
(g)
Training and education to enable the SCs and STs to secure
reasonable presence in every sector of employment;
(h)
Strengthening SCs and STs
in self-employment through training, education and provision of
financial and other facilities;
(i)
Preservation and restoration of land ownership and
possession of STs in Tribal areas; and
(j)
Food for education on national scale.
(10) The
tendency to equate the development of SCs and STs with loans and loans alone
which, however, are not available or are available in a niggardly measure from
banks and financial institutions should be brought to an end. Instead, inputs of a collective nature which provide
infrastructure to a number of individual, though on a micro scale, should be on
a grant basis, e.g., community tubewells and borewells, common workplace,
common facility centres, and so on, on the analogy that the cost of roads,
railways, power generation and transmission, major irrigation dams and other
macro infrastructural requirements are met not by loans to individual
industrialists or large agriculturists but from the public budget. Only that part of the inputs which are to be
utilised by a individual like a handloom or the cost of field channels should
be met through loans. At the same time,
the aversion of banks and financial institutions to SC and ST applicants for
loans should be effectively overcome by making performance in this regard a
specific qualifying criterion for evaluation of individual bank officers for
grant or rejection of Social Justice Clearance for promotions.
(11) Representatives
of authentic SC and ST organisations should be given representation on the
boards of banks, financial institutions at the national and State levels and
also in other important decision making bodies in all sectors. Representation should also be provided in
them for non-SC and non-ST experts who have personal experience of
developmental work for SCs and STs.
(12) It is
desirable to impress upon the Government and all authorities that the desparate
situation of the SCs and STs, on account of which there is deep resentment
among them, can be remedied only by the above structure and approach to
development.
(13) In
addition, the Ministry Incharge of SCs and STs (at present named as Ministry of
Social Justice and Empowerment and Ministry of Tribal Welfare) should continue
to perform the nodal role in relation to the various Ministries and State
Governments which has already been entrusted to it long back. This role should be exercised
effectively. The new framework of
National and State SC and ST Development Authorities, etc. mentioned above,
will strengthen the Ministry’s nodal role and the two will be mutually complimentary.
10.1 On account of unfortunate delay in recognising social and
educational backward classes category other than SC and ST needing the focussed developmental
attention, which was done only in 1990, could be put into effect only after the
Supreme Court Mondal judgement in 1990 November. On account of this, there has been a serious lacuna in respect of
planned development of backward classes and there is no national policy
consensus as in the case of SCs and STs.
The Working Group on the empowerment of backward classes in the Tenth
Plan has given a clear and comprehensive approach to the development of
backward classes. The best that can be
said is that the Government should immediately implement everyone of the
recommendations of the Working Group.
10.2 The backward class include the bulk of the religious minorities
of the Muslims, who are 80% of the religious minorities, Muslims are the
largest religious minorities constituting 80% of the population of religious
minorities. Of the Muslims not less
than 90% belong to specified and identifiable castes/communities of backward
classes so that the caste of the backward classes which continue extending
across the major religious and the main minority religious group. Every backward caste has got its Hindu wing
and Muslim wing.
10.3 The Muslim backward caste also include a number of castes which
would have been in the Scheduled Castes list if they had been Hindu Sikh or
Buddhisht. In view of this, the
Commission recommends that special care should be taken that these Muslim
backward communities are taken along with their Hindu counterparts in the
entire developmental effort for the backward classes. This will, on the one hand, help a substantial section of the
religious minorities and also help national integrity. Similarly the bulk of the Christian minority
which is second largest includes castes which are classified as backward among
Hindus as well as Scheduled Caste converts.
Almost the entire buddhisht population in India is of the Scheduled
Castes and a small number of the Scheduled Tribes. Amongst the Sikhs also, there are scheduled castes of backward
classes. The best approach in respect
of the religious minorities would be to ensure that these backward classes
among the religious minorities are fully taken along with their Hindu backward
classes brethren in the entire gammut of development by means illustrated by
the Commission’s specific recommendations regarding the allocation of some of
the residential talents schools, earmarked for backward classes, to be
allocated in areas of concentration of Muslim backward classes.
10.4 While developmental priority and focus is a right of the
backward classes of SCs and STs among the religious minorities, they as well as
the non-SC, non-ST category of the religious minorities are entitled to the
right to freedom of religious, cultural and educational rights enshrined in
Article 25 to 30 of the Constitution and this should be fully protected. In
addition, religious minorities are entitled to protection of their lives and
properties. It is desirable to impress upon the Government and the people in
general that the vitiated communal situation of the country will be totally
altered if religious minorities population belonging to BC, SC and ST are fully
taken along with other BC, SC and ST in the economic, educational and other
developmental approach.
Social Responsibilities of the Private Sector
11.1 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.
11.2 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.
11.3 In view of the above, it is suggested as follows :-
(1)
A special National Workshop should be convened with the Prime Minister
presiding and Ministers in charge of
economic Ministries and SCs, STs, BCs, Minorities and Women
participating along with representatives of organisations of Industry, Trade
& Commerce and organisations representing SC, ST, BC, Minorities (of BC)
and Women to idetify the areas of social obligation of the private sector,
which will include all those mentioned above and in particular ways of removing
the stonewall of traditional bias and deep scented hostile mindset against SCs,
STs, BCs and Women, on account of which individuals of these categories
possessing necessary qualifications and qualities find their entry into the
supervisory, technological, managerial levels of the private sector tightly
barred, especially in the case of the SCs, STs, “lower” BCs and Minorities and
Women belonging to these categories.
(2)
The above Workshop should formulate a practical mechanism of
collaboration in order to provide relevant training and orientation for qualified
members of the above categories in keeping with the specific requirements of
each Industry.
(3)
It should be made clear to the private sector that failure on its part
to cooperate, under the pretext of efficiency, but really on account of
traditional biases, will leave the Government with no alternative but to
introduce reservation in the private sector.
(4)
At each stage of clearances of any type for any industry in the private
sector there should be interaction involving the Ministry concerned and the Ministry/s
in charge of SCs, STs, Minorities and Women to ensure the above type of
arrangement.
(5)
A separate exercise should be undertaken with foreign investors who may
not share traditional social biases, and they may be able to provide some
useful models of enabling SCs, STs, BCs, Minorities and Women to enter in
reasonable numbers into higher levels of the private sector without any
dilution of standards of efficiency required and which SCs, STs, BCs, Women and
Minorities are indeed capable of fulfilling.
(6)
If this experiment does not take off and produce satisfactory results in
a reasonable period, say one year, there will be no alternative left but to
introduce reservation in the private sector which in fact is one of the strong
demands of associations and the representatives of the vast majority of people
of India comprised in the above five categories.
Transfer Of Areas Under Fifth Schedule To The Sixth Schedule
12.1 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. 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.
12.2 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.
12.3 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.
12.4 In the light of the above facts, it is
suggested as follows:-
(1)
All areas governed by the Fifth Schedule should be forthwith transferred
to Sixth Schedule which is now applicable to only tribal areas in the North Eastern Sates.
(2)
All tribal areas which are neither in the Fifth Schedule nor in the
Sixth Schedule should also be forthwith brought under Sixth Schedule.
(3)
In order to secure the full potential of the Sixth Schedule, namely,
local developmental and administrative autonomy, which is designed to provide
the STs satisfaction of participation in governance and to remove scope for any
resultant discontent weakening the national fabric, special programmes of
training and orientation for the elected representatives of Sixth Schedule
bodies the tribal areas and related officials should be undertaken and
conducted regularly.
Transfer Of Tribal Land
13.1 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.
13.2 Keeping in view the sad story of the
deprivation of tribals of their lands, which
has been going on since long but has got a spurt in recent decades after
Independence, in blatant violation of laws, thereby not only causing misery to
the tribals but also driving them into arms of those who advocate violent
methods of remedy, it is suggested that the following measures need urgent
implementation :-
(1)
No Government or authority should issue any executive order, as has
happened in the past, which will in any way, dilute or delay the process and
proceedings of implementation of laws prohibiting the passing of lands
owned by or in the possession of tribals to non-tribals.
(2)
Special Tribunals of the status of High Courts with appeal only to
Supreme Court should be established in order to quickly institute inquiries on
applications or suo moto and restore
to tribals lands which tribals have
been deprived of in the past.
(3)
A presumption should be laid down that lands in tribal areas all in the
possession of non-tribals shall be presumed to have belonged to tribals and to
have been illegally / wronglfully transferred to non-tribals unless the
non-tribals in possession are able to establish that they get the full extent
of lands they possess legally and properly.
(4)
Government should not allow lands to be taken over by non-tribals and
then come up with proposals to find
alternative lands for the tribals by means, such as deforestation. Instead,
they should take the hard decision of restoring the very land the tribals were
deprived of.
(5)
No Government should entertain or sponsor proposals of regularising
non-tribal occupation of tribal lands and propose rehabilitation of the
dispossessed tribals outside the tribal areas.
Instead they should take the hard decision of restoring the very lands
the tribals were deprived of and rehabilitate the non-tribals, in illegal or
wrongful occupation, outside the tribal areas.
Criminal cases filed against tribals shall be withdrawn.
(6)
Wherever developmental work in industry, mining, hydel power generation,
irrigation or township. etc. has to be undertaken, involving displacement of
people in the tribal areas, there should be consultation with them to identify
whether there is an alternative
location or digment whereby tribal displacement could be avoided. If tribal displacment is unavoidable, there
should, on the one hand, be a policy of total rehabilitation of the displaced
as whole communities without scattering them widely, and providing them all the
requirements for starting a new life successfully (including their declaration
as STs if in the State of rehabilitation they are not STs) and, on the other
hand, securing for them a due share of benefits from the project. Government has already got sufficient
material for evolving such a policy which will be acceptable to the STs but
this should be given a final shape and put into practice. Those, who have been displaced in the past
with only cash compensation and without the right type of safeguards and inuts,
should now be properly rehabilitated and given a due share for the benefits of
the projects on account of which they were displaced. This policy should protect the interests of non-land holding
displaced groups both of STs and as
well as others like agricultural labourers, artisans and traditional
fisher-folk. Where dislocation is
inevitable, the policy should spell out broadly the conditions in which
decisions for or against locating a project can be made so that such
dislocation is minimised and such projects are taken up only with the consent
of the tribals likely to be displaced thereby and shall lay down rehabiliation
measures whereby the STs get their due share of benefits from such projects and
they do not suffer in the short or long term.
(7)
Displacement of tribal communities from their traditional common property survival resources, through
creation of national parks, sanctuaries and bio-sphere reserves should be
avoided by integrating the tribal communities and their traditions in the
management of reserves and/or effecting their full and proper
rehabilitation.
(8)
Resettlement plans and costs should be built into the project plans and
costs to be fulfilled before / simultaneously with the project constructions.
(9)
The children of displaced tribals as well as others should be admitted
in talent schools so that they are able to acquire education for
diversification of their economy and to enter new occupational areas.
(10)
Instead of posing forests and tribals as antagonistic entities, joint management of forests by
involvement of tribals and their representative organisations in a transparent
manner along with the forest department should be undertaken to protect the
forest on the one hand and allowing the tribals to continue to avail themselves
of their traditional rights in the forest products.
(11)
Exploitation of forest coupes should be entrusted to continuing tribal
co-operatives of which there are/were available models in the country, as part
of a comprehensive mechanism to eliminate middlemen in all spheres of tribal
life and economy. This comprehensive
policy should undertake the establishment of different types of organisations
of STs, like co-operatives or associations wholly owned and managed by tribals,
to undertake or participate in different economic activities undertaken in
their area. The tribals and their
representatives should be trained and oriented to run these organisations
successfully. Successful models of this also are available in the
country.
Corporations
and Co-operatives formed at the State and National levels to purchase MFP from
ST collectors and dispose them in the market should be managed efficiently,
involve STs in their management (with training for ST representatives), pay a
fair price to the STs (on the basis of end-price in the market, minus, only
essential costs like transport and reasonable storage) and should not be
allowed to divert their activities to any field which is not directly concerned
with STs and MFP or their agricultural or industrial products.
Protection Of Land
Ownership/Land Tenures
14. The
statistical data available 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.
(i)
A list of all the available Government land not required for
genuine public purpose, Bhoodan lands and ceiling surplus lands should be
published at the village level, tehsil/taluka/mandal level and district level
and a joint programme involving the administration and the SC, ST BC and other
landless poor should be undertaken to go to each field identify the occupant in
public, evict the occupant if ineligible, allot the land to the occupant if
eligible and allot unoccupied lands to eligible landless poor people
particularly SC and ST in consultation with the landless poor people of the
village. There are models of such
successful involvement of people especially SC and ST in the country for
correct identification of lands and occupants and correct
recording/distribution as for example the Nijai Bol movement in the Basti
district of U.P. in the mid-fifties and the Barga Movement more recently in
West Bengal and also in some settlement operations in Andhra Pradesh in the
Fifties and early Sixties. This mass
programme involving potential eligible persons in groups and the administrative
machinery should be undertaken from village to village clearing all work in
each village taken up. Performance in
this regard should be a specific item for evaluation of officers for grant or
denial of Social Justice Clearance for promotion.
(ii)
By involving the SC and ST, lands allotted to them but
occupied by others should be identified by mobile teams, transparently in
public and the wrongful occupants should be promptly tried and punished under
the POA Act under an existing provision in that Act. The enforcement of the Act should start with the biggest land
owners and the most powerful individuals in each village who are in occupation
of land allotted to SCs and STs., in order to have a demonstration effect about
the seriousness of the Government and deterrent effect on the offenders.
(iii)
Occupation of Government land or Panchayat land or Bhoodan
land or ceiling surplus land which are allottable to the SC and ST and other
landless poor should be included in the POA Act as an atrocity and those in
occupation of such land should be dealt with in the same manner as above.
(iv)
Offenders of the above type should be made ineligible to
stand for any election at any level for six years after conviction by suitably
amending the Representation of People Act and they should also be disqualified
to continue to hold any office to which they have already been elected.
(v)
The High Court and the Supreme Court should be moved by the
respective Governments to set up a separate bench to deal with all matters
pertaining to land reform cases along with other matters pertaining to SCs and
STs and BCs like reservation in order that they may be disposed of quickly and
implementation of land reforms and other benefits may not be delayed by
powerful vested interests through the mechanism of institution and prolongation
of legal proceedings.
(vi)
Bhoomi Sudhar Adalats (Land Reforms Justice Tribunals)
should be set up.
15. The following measures are suggested:-
(i)
In Article 46, the
following should be added 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.”
(ii)
In order to remove any scope for misunderstanding, to
prevent abuse and to allay the apprehensions of members of Scheduled Castes and
Scheduled Tribes to the effect that this clause is used to defeat their rights,
the clause “consistently with the maintenance of efficiency of administration”,
be deleted from article 335.
(iii)
The existing Clause 4 of article 16, to be renumbered as
Clause 5 which is at present worded permissibly should be made mandatory thus
making the renumbered article 16(5) the source of reservation for backward
classes who may be termed as Socially and Educationally Backward classes in
line with article 15(4) and article 340(1).
(iv)
The existing clauses (4A) and (4B) under article 16 should
be consequently renumbered as clauses (5A) and (5B).
(v)
Clause (4) of article 15 should be made mandatory.
(vi)
The following entries should be included in List III of the
Constitution.
(a) Development,
welfare and protection of the Scheduled Castes and the Scheduled Tribes.
(b) Development,
welfare and protection of the Backward Classes.
(c) Development,
welfare and protection of women.
Empowerment of Women
16.1 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
16.2 The following suggestions are made:
(i)
Reservation for women should be provided in State
Legislative Assemblies and Lok Sabha.
The existing bill should be amended to provide for reservation for
backward classes as permissibly provided in the case of Panchayats and
Municipalities. However, in order to
secure consensus, from the benefit of reservation for backward classes such
communities of backward classes as are able to secure seats comparable with
their population even now may be excluded by a suitable provision.
(ii)
A wide spread programme of Empowerment of Women economically
and educationally should be undertaken and the Bill on Domestic Violence passed
and implemented so that more and more women may be able to take advantage of
reservation in elective bodies and also representation in various levels of
Governance and administration and different professions.
(iii)
Malnutrition and maternal anaemia widespread among women
from SCs, STs, BCs and other weaker sections of the people “Right to Health has
been declared by the SC as a fundamental right. NHRC after conducting a workshop recommended to amend the
Constitution declaring that Right to Health a fundamental right. Massive programme of actions undertaken by
the Central and State Government health care and to prevent maternal anaemia
and infant mortality.
Unorganized Labour
17.1 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.
17.2 The following suggestions are made:
(i)
The task of enforcing payment of prescribed statutory wages
to agricultural labourers and other categories of unorganized wage labour
should be entrusted to the District Collectors and SPs. They should identify the largest wage
employers in each district and ensure payment of the prescribed statutory wages
by them in a transparent manner so as to secure demonstration effect and emulation
effect. This should be a specific item
for Social Justice Clearance for them for promotion.
(ii)
The Central Act for agricultural workers drafted in 1978-80
and the introduction of which has been continuously postponed in the name of an
ever-elusive consensus should be introduced
and passed immediately, as it is the evasion of such legislations that
gives opportunity, scope and fillip to the advocates of violence.
(iii)
Khet Mazdoor Nyay Adalats (Agricultural Labour Justice
Tribunals) should be established.
Statutory Protection To
Farmers
18.1 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.
18.2 In view of the above, the following suggestions are made:
(i)
The long pending demand of agriculturists that agriculture
should be treated as an industry with the benefits of Government policy to
industries should be conceded without further delay.
(ii)
The remedial steps require to protect agriculturists for
incurring losses, to promote sustained growth of agriculture and to protect
them 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 should be specifically identified at a national
convention involving Ministers in charge of Ministries connected with
globalisation and Ministers in charge of Agriculture and other sectors of
traditional produce and authentic representatives of the peasant organizations
as well as representatives of other producing classes and a consensus arrived
at to be implemented quickly. There
should be a continuous mechanism involving all these to continuously monitor
implementation and corrections and modifications required from time to time to
secure the twin results mentioned above.
Bonded Labour and Child
Labour
19.1 Despite prohibition of ‘begar’ and other
forms of forced labour, the practice of bonded labour has not ended, Child
labour too exist
19.2 The following suggestions are made:
(i)
A fully empowered National Authority for the Liberation and
Rehabilitation of bonded labourers as recommended by the Commission for Rural
Labour in 1990-91 should be set up immediately and similar authorities at State
level.
(ii)
In order to offset the influence of powerful people who
maintain bonded labourers and also dominate many fields of Governance, the
sections of population from which bonded labourers are drawn namely SC (about
2/3rd), ST (about 1/5th) and BC (about 1/7th) should be mobilized
through their representative organizations, SC, ST and BC wings of all political
parties, SC, ST and BC holders of elective offices in panchayats and
municipalities of all levels, NGOs and social activists who have been sincerely
working for the bonded labourers along with the administration should be
mobilized. Rehabilitation programme
should simultaneously be implemented so as to avoid relapse.
(iii)
The mandatory provision in the Bonded Labour System
(Abolition) Act which places the
responsibility on the State as in the PCR Act and the POA Act should not be
allowed any more to remain merely on paper.
(iv)
The monthly and other periodical meetings required by the
Act to be held by the District Collectors, Chief Secretaries, etc., which is
more honoured in the breach than in the observance should be held regularly by
all those officers hereafter and this and other aspects of the liberation and
rehabilitation of bonded labourers should be made a specific item for the
evaluation of each of these officers for the grant or denial of Social Justice
Clearance for promotion.
(v)
Bandhua Mazdoor, Bal Mazdoor evam Pravasi Mazdoor Nyay
Adalats (Bonded Labour, Child Labour & Migrant Labour Justice Tribunals)
should be established.
(vi)
Chairperson, Members of the National and State Authorities
referred to above and other Authorities, Commissions and other bodies for SCs,
STs, BCs, Minorities, Women, Safai Karmacharis and any other weaker section
should be appointed not as at present but in keeping with the qualifications
and qualities specified in the respective Acts or in the Constitution or in
Rules thereunder and under a transparent procedure similar to that provided for
the appointment of Chairperson and Members of the National Human Rights
Commission, mutatis mutandis.
Immoral Trafficking in Women – Rescue & Rehabilitation
20.1 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.
20.2 The Centre of Concern for Child Labour has
identified certain child prostitution prone areas in India as is indicated in
Appendix XIX.
20.3 The following suggestions are made:
(i)
The recommendations of the Secretary’s Committee should
straightaway be implemented without further loss of time.
(ii)
The process of
complying with the Supreme Court’s directions should be completed without
further loss of time:
(iii)
Since the present recommendations deal with the symptoms, it
is necessary to go to the root identifying the sources from which prostitutes
and child prostitutes are recruited usually by force or by the operation of
economic forces or traditional exploitative customs, like the Devadasi System
(known by different names).
(iv)
Since the bulk of prostitutes and child prostitutes
recruited in all the above ways are from the Scheduled Castes, Scheduled
Tribes, Backward Class artisans who have lost their occupation on account of
being suddenly exposed without any preparation of support to unfair and
hopelessly unequal competition from technologically and financially superior
categories, this root of the problem has to be tackled by empowering these
communities and these categories by economic development, economic protection
educational development and other measures recommended earlier, failing which
the release of some prostitutes and child prostitutes will result in either
relapse of the same persons or substitution by other individuals who share the
same miserable social and economic plight.
(v)
Child prostitutes and children of prostitutes should be
admitted to the residential schools mentioned earlier for SC, ST and BC in the
25% quota meant for others.
21. It is observed as
follows:
(i)
There is absolutely no room for difference of opinion that
the socio-economic change since independence is far below par, potential and
need.
(ii)
The pace of change is not commensurate with financial
outlays and expenses because on the one hand the schemes have not been drawn up
in consultation with the people and in accordance with the full requirements of
development in a comprehensive and integrated manner and the people are not
associated with the implementation of the schemes.
(iii)
The pace of change is also not commensurate with the
potential of the country.
(iv)
At the core of the failure is the refusal to see that the
bulk of the people, not less than 75% belong to SCs, STs and BCs who also
contribute almost all the physical labour in production and services and the
fact that most of those occupying the commanding heights of the economy, of
governance, of administration, and of all institutions have their origin in the
remaining 25% of the society whose interests are either opposed to the
interests of the full economic and educational development of the above bulk of
the population or who are indifferent to and oblivious to their plight and
their interests.
(v)
There has been similar neglect of the Minorities most of
whom belong to SC or ST or BC and of women, belonging to SC, ST and BC and also
other women.
(vi)
The various measures of Constitutional amendment and
creation of institutions and systems recommended by this Commission are a
beginning to reverse this trend, secure the economic liberation of the SC, ST
and BC and other poor, and their educational development, and enable the nation
to better achieve its potential. Delay
or neglect in this regard will make a nearly unmanageable situation totally
unmanageably and come in the way of the various projects of economic growth of
the country being planned and desired.
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.
2 ibid