Sachin Kumar
Jain
One of the sad truths that
we have to live with today is that the people’s
struggles for human rights are highly fragmented in India.
Equally disheartening is the fact that whenever or wherever
human rights comes up for discussion, it is addressed in
piecemeal, ignoring and leaving far behind a comprehensive
approach to rights based on the notion of justice. The focus
is usually on the concept of rights understood within the
limited periphery of ‘people’s welfare’ in
which quotient of ‘justice’ is forgotten.
In India we have 713
legislations that deal with people’s rights, their
entitlements and protection. Another 19 on food, nutrition
and health are on the anvil. In fact what we have is a
law-making regime for last 65 years, and the concept of
justice is missing in the country.
Do rights make any sense without justice? Can we expect that
human rights will be guaranteed without justice? Can we
afford to seek justice only through the courts, exempting
the executive? The rule of law is not the state generating
fear about its might and ruling by it. What we have in India
are rules and laws that could exploit the marginalised.
When public pressure
concerning an issue disturbs the state, the state comes out
with a policy and passes a law. But laws are meaningless if
there is no system to implement them. And where there is no
accountability within the system legislating becomes a
farcical exercise. The basic objective of the people’s
struggles in the country is to ensure proper implementation
of the laws. What we need to do is to think where and how
deep is the passive or sometimes active negations of rights
permissible within the system. Otherwise the enormous
efforts of the people’s struggle to claim these rights
would go in vain.
There are more than 3,000
struggles for justice going on in the country’s 640
thousand villages where over 3500 thousand voluntary and
non-governmental organisations work. This is ironic, because
India has some of the most progressive laws in the world and
claims to be the world’s largest functioning
democracy. Yet it is a country in which 9,000 custodial
deaths take place every year and over 1500 thousand children
die of malnutrition, while policymaking continues
unmindfully!
In such a situation how can
we ignore the question of why the system refuses to change?
Why the lives of people count for nothing and why their
standard of living shows little sign of improvement?
There are 15,777 undertrail
prisoners in Madhya Pradesh and 15,784 in Maharashtra. They
are not considered eligible for bail, and are forced to wait
for a final verdict till an uncertain time. Many among them
have already spent more time in the prison than what the
sentences for the crimes alleged against them might warrant.
The path of justice tends to veer towards injustice because
the state, which has the responsibility to dispense justice,
is not accountable to the people. Is this, perhaps, part of
its well thought out strategy to retain state’s
supremacy over the society? It’s a thought worth
considering.
The first question we need
to ask ourselves is: what are the tribulations in our
society and what kind of change does we necessitate
deciphering them? We are living in a period of policy
changes and laws. The government formulates policies and
passes laws, allegedly to solve these problems. But the laws
remain on paper. They are of use to the society only if an
institutional framework for implementing them is created, an
adequate budget sanctioned, officers appointed, and other
necessary infrastructure put in place.
For instance, the government
claims that the people have a right to health. But if there
are no doctors, no hospitals, no money to buy medicines,
what does this right mean? When will people enjoy its
benefits? The government has also passed a law giving people
the right to free and compulsory education. But to ensure
quality and equal education to all we need enough teachers,
introduce new teaching methodologies and provide classrooms
and toilets in schools. But the financial resources
available for this is not even half of what is in fact
required. So what kind of right to quality education could
our children hope for or lay claim to?
Justice must be evident and
should appear to be done. Rights cannot be seen as
disconnected from justice. If the state is unjust, if it
abdicates its responsibility to dispense justice, people can
neither claim nor protect their rights. In India, the state
is only putting on an act with its
‘people-oriented’ policies and laws to hoodwink
the people. The reality is the continuing violation of all
basic rights. Nowhere in the laws is there a provision that
says the government will have zero tolerance for compromise
and will take steps to ensure that people get not just their
rights but justice as well.
Take the example of the law guaranteeing the Right to
Information (RTI Act 2005). It says if people are denied
this right the responsible official will be penalised to
ensure that such violations do not occur in future. The
right is for seeking and obtaining information, but justice
is for taking actions to punish those officials who violate
the right. As long as this aspect is ignored, talking about
rights is mere deception.
Justice and rights are not
limited to the judiciary or to the state that is supposed to
safeguard them for society. They go beyond these
institutions. Justice is a universal trait, a basic human
character, like courage, equality and respect for nature. It
is not something that one obtains only through a court of
law. The notion of justice starts with the faith that
justice will not be denied. Justice is also the belief that
when the authorities and the system where you go to claim
your rights will respect these rights and treat you in a way
that raises your morale and reinforces your belief in the
system.
The search for justice could begin for instance with the
police inspector or a constable in a police station. If they
are unjust, one cannot get justice from the court that in a
criminal case will have to depend upon the police for
investigation of a criminal charge. The decision of the
court is based on the case report the police present. That
is why justice is not something that only a court of law
ensures.
There is also the country's
media that presents a case before the public. If the media
is unjust, they cannot feel the soreness that a victim
experiences when rights are violated. Investigations about
rights violations without a perspective of justice serve
only the purpose of whitewashing of some and slinging mud at
some others.
If more and more cases of
rights violation keep occurring, and if they continue to be
viewed in a perspective devoid of justice, the policies that
are eventually formulated will also be devoid of justice. If
justice is not ingrained into the system, it will become a
purveyor of injustice. There are no half measures, or middle
path. You either have justice or injustice, corruption or
transparency. It is a shame to say that 40 percent justice
is dispensed or 60 percent of the system is corrupt. A
system can be either completely just or absolutely unjust.
It is a dangerous reasoning for the future of democracy,
society and the constitution to claim that the District
Collector is an honest person but the subordinate officers
are corrupt, or the chief minister is honest but his
ministers are corrupt, or the prime minister is a good man
but his cabinet colleagues are bad.
The British ruled our
country - India for more than 200 years as a colony. They
came for business and later continued to influence our
systems - political, economic and social. They also make
laws and created institutions. Definitely those were not for
the welfare of the people and to ensure justice. They made
it; to control any action, which might challenge their rule
here in any form. They forced people not to speak, they
created police in 1861, and they made forest a state
property by creating the forest department in 1861 - 62,
with a clear message that community has no ownership over
their natural resources; and suddenly with the creation of a
law and system, people become encroachers from the
owners.
The colonization reduced the
space for the people up to a level, where they found
themselves unable to breath. The colonial rulers follows a
specific meaning of the rule of law; which for them
translates as regime to establish the rule of the state over
the native society, to suppress the strength of people, so
that there is no opposition to the colonial interests. One
country rules the other for looting, not for welfare; so one
cannot expect that the coloniser will take any pain for
setting up standards of living, welfare or norms for human
rights. In such a situation ruler (not the state per say) is
the key culprit in human rights violations. And justice here
means protection to a section of people who provides them
support for ruling their own country or society.
The British hanged Indians
who demanded justice, dignity, rights and freedom. They did
follow a system of judiciary - which was created to hang
such people, who challenged the then state; without
considering the norms of justice or that of rights. At that
moment justice translated as the protection of those who
were fighting for the country’s freedom. Tax and
revenue systems were made for looting resources; education
system was contaminated to create a bonded society. There
should be no revolt even after extreme injustices like
massive food shortages. This was the key objective of the
coloniser and that is why the concept of law and order
become important for them. We, in the independent state,
continue to follow the same. If you go for an agitation, you
will be booked and may be disappeared forever. Why there is
no scope and space for those in the country who want to
share their anger, frustration and agony; why they are
treated as criminals?
Such space was not there before 1947
and still not there, 65 years since.
Making laws is a collective
process of the legislature. The government drafts a bill and
presents it to the parliament. The bill is normally sent to
the parliamentary standing committee, which invites comments
and suggestions from institutions/organisations and from the
public. The bill is accordingly modified and sent back to
the parliament. But the government is not bound to accept
all the recommendations of the committee. So it is free to
ignore any provisions that may be mistakenly viewed as
diluting the legislature's power or compromise its
positions. The passage of the bill depends on the strength
of the ruling coalition. If it enjoys a majority in the
house it faces no compulsion to keep the people at the
centre of its legislation.
A law is an all-encompassing
document of the right in question. But often it does not
outline the steps required for its implementation or for
creating the required institutional structure. These are
dealt with in the rules and procedures and this is where the
next deception of the people occurs. Unlike the bill, there
is no scope for the standing committee to offer its views
and suggestions about the rules and procedures nor do people
have the right to have their say. There are enough loopholes
and pitfalls in them for the people to stumble into and get
trapped. There are no systems to ensure that our rights are
clothed in the cloak of justice.
The key to the
implementation of a law is with the state. The 73rd
Amendment of the Constitution had paved the way for the
decentralisation of state power through the Panchayati Raj,
with authority given to the panchayats (elected local body
at the cluster of villages) and gram sabhas (village
councils). But no panchayat can impede the salary of a
corrupt official or who do not perform his/her duty. It can
only make recommendations to the executive that action is to
be taken against an erring officer. In the past, the village
institutions controlled resources but today these resources
are retained in the central treasury by the state and the
panchayats and gram sabhas have to extend their palms to
plead for central ‘alms’.
Our society is still ruled
by the caste system; we all know this truth. It is plagued
with discrimination, gender inequality, untouchability and
feudalism, which is the reason why there is little hope for
the society or for its social institutions to make any real
effort in creating a system that is based on equality and
social justice. Our society remains silent when confronted
by deaths from starvation and malnutrition. It fails to
raise its collective voice against the rapes that it
witnesses. And instead of resisting the naked exploitation
of our resources it spends its energies looking for escape
routes such as internal or external migration. It is in such
situations that the role of the state comes into focus.
The expectation is that the state will create a system to
counter and abolish inequality, discrimination, exploitation
and social boycotts. Such a system cannot be limited to
policy formulation and law making. Laws create the system
and the system should, in principle, function within its
ambit. Social contradictions can only be resolved by
governance guided by value and justice-based laws. In
today’s context, it means justice and values should
remain not just the responsibility of the state, but also
that of its banks, media, markets, production systems and in
the private sector. Otherwise these agencies inevitably
become the new players in the processes of exploitation and
subjugation.
Rights cannot be claimed or
given unless and until an accountable and institutionalised
structure is created to implement them. The laws enacted
should be such that they carry the message of rights with
justice. They should explicitly state that an
institutionalised structure will be set up for
implementation, with an effective, transparent and
decentralised mechanism to monitor the implementation and
register and resolve complaints within a specified time.
They should also contain provisions to punish the guilty and
compensate the victims of rights violations. Equally
important is sanctioning of the required budget, because
without such allocations, nothing is possible.
Madhya Pradesh is a state
where six million children are battling malnutrition. Their
chances of winning this battle are slim because the state
government does not provide them the kind of support they
need. But eradicating malnutrition is a battle that the
state should be fighting because it is the constitutional
guardian of our children. The Integrated Child Development
Scheme (ICDS) was formulated in 1975 to address and resolve
the problem. Its primary target is children aged below six
years, who are most susceptible to malnutrition. But 37
years after its launch, malnutrition remains a scourge that
continues to play with the life of our children. The
question we need to ask is: Why did such an ambitious scheme
fail to bring any significant change in the situation?
The ICDS provides for setting up anganwadis (child
development centre at the level of every local habitation)
to care for all children and the Supreme Court has decreed
that such care centres must be established in every village
and habitation and no child should be denied its services.
The anganwadis have the infrastructure to provide six
crucial services to children, at least on paper. These
include monitoring their growth and development, providing
nutritious food, imparting health and nutrition education to
pregnant/lactating mothers as well as adolescent girls,
vaccinating children, imparting pre-school education and
admitting the seriously ill in hospitals.
An anganwadi has to cater
the needs of around 40 children aged below six years, under
the supervision of an anganwadi worker and a helper, who are
recruited from the village. The worker has to maintain six
registers with vital data about the children and the
services rendered. Can two workers cope with this large
burden of responsibility? The Supreme Court has instructed
that the anganwadi services should be universalised and
their quality should be improved. The government continues
to enrol children in the care centres but it has done very
little to increase human resources, their capacities,
infrastructure facilities and remuneration.
In 1991, the government made
an allocation of one rupee per child for providing
nutritious food. But the actual disbursal was Paisa 47
($0.023) per child. If seen from another angle the budgetary
provisions would be adequate for only 47 percent of the
child population in this age group. Moreover, when the
village community complains that nutritious food is not
provided for six months in an year, the bureaucracy did not
point out that the allocation itself has been drastically
cut and that is why children remain hungry. Instead, it
blames the anganwadi workers and takes action against them
to maintain the power of the state. Where can the anganwadi
workers go to fight for their rights and justice? There is
no mechanism to give them justice.
Another distressing fact is
that the budgetary provision remained unchanged for 15 years
until 2005, when it was raised to Rupees two per child.
Today, in 2012, the amount is Rupees four per child, which
is still only half of the actual need. This is the irony.
The government calls malnutrition a ‘national
shame’ yet allocates a measly amount - which cannot
even buy a cup of tea in today’s market price - to
resolve the crisis. A country with one of the fastest
growing economies of the world has the largest population of
malnourished children among all nations and yet it has no
willingness to give more than one percent of its budget for
children aged below six years, who constitute 14 percent of
its population!
The ICDS has been riddled
with corruption since the time it was launched. There is no
mechanism in the system to register complaints against this
corruption, carryout an impartial investigation, take
immediate action, award punishment, or protect the rights of
the children and women. If a complaint is registered, the
state government asks the district collector and the
programme head in the district to conduct an inquiry. These
officials themselves are an integral part of the
implementing agencies. So in a way they are responsible for
the corruption and negligence. Should the accused be given
the responsibility of investigating the misdemeanour and
felony?
Madhya Pradesh has
constituted a State Commission for Protection of
Child’s Rights. To begin with, it is a moribund
organisation. Even if any of its members take the initiative
to fulfil its responsibilities, there is little likelihood
of anything coming out of the exercise because the
commission only has the power to make recommendations but
not the power to ensure compliance by the implementing
agency, which has unlimited and unrestrained power. Perhaps
the government wants it this way. That is why it never
acknowledges that the lack of accountability.
The state does not appear
committed to protect human rights or dispense justice. In
such a situation, children will continue to starve and be
malnourished. Their hunger is not so much the outcome of
inadequate food but the lack of accountability, corruption,
carelessness and despicable apathy of the state.
It is a question of intent.
On the one hand there is no system or mechanism to ensure
justice, while on the other our judicial system is caught up
in protecting its own interests. In 2011, a total of 26.3
million cases were pending in Indian courts. It would
require 24 years for the courts to clear the backlog,
provided no new cases are registered in the interim. If
cases continue to be registered at the current rate, the
courts would have a backlog of 240 million pending
cases.
This only shows that the
state is becoming progressively ill equipped to deal with
its responsibilities even as its officials show an
increasing tendency to abuse their authority. Even then the
government makes no commitment to overhaul the system to
ensure that the people do not have to wait endlessly for
justice. People living in Manipur, Arunachal Pradesh,
Nagaland and Tripura have to travel all the way to the high
court in Guwahati because there are no other high courts in
these northeastern states.
Take a look at the following
example. In 2006, the Indian government passed a law
recognising the forest rights of scheduled tribes and other
traditional forest dwellers. The law declares in its opening
statement that the indigenous communities have been
subjected to historical injustice for centuries and the
state seeks to give them justice through this legislation.
Now take a look at its provisions. In order to establish
community rights to forests the villagers have to produce
adequate documentation to show that they have been using
forests for their livelihood, grazing and access or for
cultural and religious purposes or for foraging forest
produce for their daily needs. This is a task that is beyond
most of them.
In India, systematic records
have been maintained at the district level (in district
record room) from even before 1950 of every village, its
resources and their use. Many people are not even aware of
this storehouse of data and information. These documents are
called nistar patrak (record of use of land, forest and
other natural resources) and Bajib-ul-Arz. It is almost
impossible for villagers to access these documents in the
maze of modern bureaucracy and red tape. The result is that
only around five percent of the claims to community rights
have been legally established and recognised.
If the intent of the
government is to confer community rights to the rightful
claimants why did it not add a provision to the law stating
that it will make available all the documents in its
possession to the gram sabha and the village level forest
rights committees to enable them to process claims and
establish the rights of the community? It is the
responsibility of the government to provide the required
documentation, not of the people who have been subjected to
this historic injustice. Until and unless the state
internalises the concept of justice every utterance of its
officials will be futile and meaningless. But the state is
reluctant to part with the power it has over the people.
It is not as if the
government has never built a strong institutional framework
for implementing its laws. Wherever it needs to protect its
powers it ensures that such a system is established. For
example, when electricity production was privatised, private
companies were permitted to decide electricity tariffs, a
job which the government did earlier. It set up an
Electricity Regulatory Commission to approve the tariff
increases and give them the official stamp. The commission
gives priority to the arguments of the private companies,
not the government or the people, in arriving at its
decisions. As a result, electricity tariffs have been raised
by 20-30 percent every year.
Water is also in the process
of being privatised and the appropriate institutional
changes will be affected. Poor people living in slums will
now have no access to free water. Prices will be raised
periodically and those who cannot pay will be deprived of
their right to water and electricity. The government gives
statutory powers to these commissions, which make them more
powerful than even the parliamentarians. This clearly shows
that the implementation of a law depends on the kind of
enabling institutional structures that are created.
The problem is not that 42
percent of our children are victims of malnutrition or that
our prime minister calls this a national shame. The problem
is that the state has made no concrete effort to resolve the
problem, nor created accountable and resource-rich
institutions to deal with it. Nor does the system have
responsible people and policy makers or a planned mechanism
to implement a solution. The problem is that the bureaucracy
is neither accountable nor capable of dealing with the
situation. Even if there are capable bureaucrats who do good
work, they end up being punished instead of rewarded because
corruption is accepted as a way of life.
The problem is that the state has been given too much power
and sees itself as supreme. It understands strength and
turns a blind eye to those pages in the constitution that
elaborate its duties and responsibilities. Its limited
perspective tells it to silence and neutralise anyone who
dares to criticise its functioning. This is the reason why
the state is very often seen to be despotic in its work. It
adopts every means to protect its powers, whether through
the use of the law and its policies or otherwise. We need to
analyze these methods and counter such despotism with
democratic values.
We also need to understand
the link between people’s struggles, agitation and
advocacy. People’s struggles emerge in certain
special circumstances and the initiatives they take aim to
change the mindset of society. They see the problem from a
social and political perspective but find themselves caught
up in many dilemmas. They cannot decide how to change the
system if the very root of the crisis lies in its unjust
nature. The system can only be changed by democratic means,
but there is a reluctance to enter into electoral politics
to affect such political change. The people find themselves
caught up in answering the questions posed by the government
when in reality it is they who should be demanding answers
from the government. The people’s struggles have been
weakened and divided by the state through its power to
distribute favours and services.
Prior to 1997, everyone
could get ration through the public distribution system. In
1997 the government decided to draw a poverty line and
declared that only those below this line could receive
subsidised rations. The poverty line was a ruse to deny
rations to 64 percent of the population. And now when a
people’s struggle is being fought to bring about
institutional change in the rationing system, our middle
class and the class of people excluded from the ambit of
rations by the poverty line turn their faces on this
struggle, saying they have nothing to do with it. And those
who are eligible for rations are so socially and
economically debilitated and deprived that they find it
difficult to leave everything to fight for their rights.
The state weakens the
people’s struggle for social, political and economic
rights in this way. In the past 20 years we have seen
farmers and agricultural labour melded into a powerful force
but the state had created divisions between them through its
policies. For example, it has reduced the concessions and
subsidies extended to agriculture, raising the cost of
production. At the same time, it has raised the wages of
unskilled labour, who also work as farm labour, through the
National Rural Employment Guarantee Act.
The government has not given
proper support prices for agricultural produce while it has
given a fillip to the import of cheaper agriculture products
from other countries, where farmers are given large
subsidies. With cheap imports flooding the markets the local
farmers have no market for their produce. The outcome is
that they are in a pitiable state today. Most of them (77
percent) are small and medium farmers owning less than two
hectares of cultivable land. They find committing suicide to
be an easier alternative than farming.
The growing urbanisation of
the country is also responsible for alienating society from
the concerns of our villages. The pitiable state of health
and education services in rural areas and the crisis caused
by development project linked displacement of people does
not strike a chord in the cities. The possibility of
launching a people’s campaign is low in such a
scenario. There is a thin line between people’s
struggles and advocacy. People’s struggles raise
issues and slap the government to take notice of these
issues. Advocacy involves building up a fact-based and
analytical understanding of issues to strengthen the
people’s struggles. The two do not themselves look for
solutions to problems but try to force society and the state
to take up the task of looking for solutions.
Advocacy is a process that
takes up one or several linked issues with the objective of
bringing about a change. When we work on any issue, case or
incident there are three objectives we have in mind: The
affected individual, people or community should receive
their rights with justice. Those responsible for
perpetrating injustice should be punished and their
accountability should be fixed so that no abrogation of
rights can occur in future. The weaknesses of the system
should be removed, in keeping with these objectives, so that
it is no longer unjust in character.
And finally, we must
ourselves clearly understand that human rights cannot be
defined without justice. And justice cannot be limited to
the courts but must permeate and become an integral part of
society, the state and the system. Change cannot happen only
by formulating policies or making laws. It requires
provisions being made for an administrative, economic and
infrastructural system (buildings, equipment, roads, water
supply, sanitation, etc.), creating an accountable grievance
redressal mechanism that works in a time-bound manner. We
would have to decide the values and standards that govern
this system and the government should pledge to adopt these
values and standards.
About the
Author: Sachin Kumar Jain is a
development journalist and researcher associated with the
Right to Food Campaign in India and works with Vikas Samvad,
AHRC's partner organisation in Bhopal, Madhya Pradesh. The
author can be contacted at sachin.vikassamvad@gmail.com
Telephone: 00 91 755 4252789 or 00 91 9977704847.
This article has been distributed by the Asian Human Rights Commission, Hong Kong.
