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വായന

29 February, 2012

INDIA: A corpse of rights without justice at its soul

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.

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