In March of this month, the said bill had been referred to a 31-membered Joint Parliamentary Committee (JPC). The said JPC was being headed by the Ruling Bharatiya Janata Party member Rajendra Agarwal. Public suggestions had been invited by the JPC in May. Notably, the Committee had not proposed any changes to the Bill. However, six MPs from opposition had filed the dissent note. The objections were raised by them on exemption of forest land at border areas from the purview of the Act that might turn detrimental to Biodiversity and forest coverage of border areas especially at Himalayan region. Concerns were also raised that it may lead to exploitation of forest land by using them for non-forest purposes.

It is essential to note that Rajendra Agarwal, who was leading the JPC, was also presiding over the Lok Sabha proceedings in Speaker Om Birla’s absence when the bill was discussed and passed.

Union environment minister says the said amendments will help with development:

Union Environment Minister Bhupender Yadav referenced Nationally Determined Contributions with three quantitative goals and international agreements on the climate problem during the bill’s debate. He said that the first two objectives had been accomplished nine years in advance, but the third objective—creating an additional carbon sink of 2.5 to 3.0 billion tonnes of CO2 equivalent—had not yet been accomplished. As reported by Livemint, Yadav said, “I am happy to inform that India has achieved two of the three Nationally Determined Contributions nine years in advance. The bill will help us in achieving the last goal also.” 

Yadav also said the bill was passed by a joint committee which had visited even border area villages to understand what the legislation will help in achieving.” The bill will help in taking development to the border villages,” said Yadav. “To do that, we must concentrate on agroforestry and expand tree cover. The worldwide community should care about the objective,” as provided by the Hindustan Times. 

He claimed that due to certain limitations in the current law, progress has come to a halt in some places impacted by Left-wing extremism (LWE). “Compensatory afforestation is essential for carbon sink… The bill will prove to be a milestone. We want to encourage afforestation on private land. Also, this would help in addressing development issues in Left-wing extremism affected areas. The tribals are waiting for roads and health facilities. This will help us in achieving this,” as reported by Livemint. 

Yadav continued by saying that they want important public utility projects to reach these areas. “The exemption to forest areas in a 100 km radius from borders, LAC [the Line of Actual Control with China] and LOC [the Line of Control, the de facto border between India and Pakistan in Jammu and Kashmir]] will help develop roads crucial for border areas…help develop strategic infrastructure for our national security,” as reported by the Hindustan Times.

On BJD MP Bhartruhari Mahtab’s point that the bill was in conflict with the Forest Rights Act, Yadav said there was no contradiction. 

Bill passed amid protest from opposition on Manipur violence:

On Wednesday at 11 a.m., the Opposition members flocked to the Lok Sabha with placards seeking Prime Minister Narendra Modi’s statement regarding the Manipur crisis. The opposition members of parliament carried signs that said “India united against hate” and “India wants reply, not silence” and shouted “We want justice” intermingled with cries of “Shame.” The House was adjourned by Speaker Om Birla shortly before noon. The House was once more suspended till 2:00 pm in the afternoon.

The administration seems intent to advance a portion of its legislative agenda during the post-lunch session, according to the Hindustan Times. Notably, even as the National Commission for Scheduled Tribes had objected to a few of the controversial Forest Conservation Amendment Bill’s clauses, it was tabled for review and passage before the Lok Sabha. The issue was discussed by four MPs amid incessant sloganeering from opposition members. It is important to mention that the said bill was enacted within 30 minutes of the House convening, amidst the sloganeering.

What were the concerns raised against the said bill?

On July 18, a few days before the bill was passed by the Lok Sabha, around 400 ecologists, biologists, and naturalists had written to Yadav and other members of the Parliament, pleading them to not introduce the proposed legislation. In the said letter, they had highlighted the terrible effects of environmental degradation and climate change, emphasising on the flooding across the north India this summer. “Now is the time for the administration to reconfirm its dedication to safeguarding the vast biodiversity of the nation…The main goal of this amendment is to speed up the destruction of India’s natural forests.” They demanded more discussions with subject-matter specialists.

It is pertinent to highlight here that the now passed bill covers only land that has been declared or notified as forest under the Indian Forest Act, 1927, or under any other law. It states that no prior clearance is not needed for the construction of any strategic linear project of national importance. Essentially, almost all of the ecologically-fragile northeast fall under this category.

As provided by the Hindustan Times, the submissions attached to the JPC report shows opposition to the provisions of the bill, which are as follows:

1. The report acknowledges that experts have noted that the amendments were likely to weaken the landmark Godavarman decision of the Supreme Court from 1996. The aforementioned decision had expanded the application of the Forest Conservation Act to include all land that had been designated as a forest, regardless of who owned it—for example, huge areas of unclassified woods in the northeast.
2. Additionally, the experts also pointed out that the 100 km exemption from border areas can be detrimental to ecologically sensitive areas of the northeast. “Please look at the northeast, for example. If you are going to exempt 100 kilometres from each border, what is going to be left? It is a very sensitive area. As it is, we are seeing the problems which are being created because of certain communities who have had traditional rights and customary rights to forests under Schedule VI [of] the Constitution which itself, I believe, is inadequate,” noted an unnamed expert in the submission made to the JPC, as provided by the Hindustan Times. 

The Sixth Schedule provides for the autonomous administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.

On this particular concern, the environment ministry said the 100 km provision has been decided in consultation with the defence ministry. It insisted it is considered optimum to meet the requirement of defence organisations and strategic requirements. The proposed exemption along the international borders and in LWE areas are not generic exemptions and will not be available for private entities, it said.

3. Experts had also pointed out that the bill violated provisions of the Forest Rights Act as it does not clearly speak of prior informed consent of village councils on forest clearances. The environment ministry has insisted there was no violation.

One of the Congressmen who provided dissenting opinions to the JPC, Pradyut Bordoloi, noted that the reconciliation of the forest conservation law with the issue of forest rights “remains an obvious gap, even in the statement and objects of the amendment.” That should have been crucial, he continued, especially since practically all proposed revisions would inevitably affect any forest rights that are currently in effect, on hold, or recognised. He remarked, according to the Hindustan Times, “There is an absence of any perspective on how existing proprietary, customary, and livelihood use rights will be handled for net zero compliant lands or in the case of fresh forest land diversions.”

The complete bill can be read here:

Related:

Parliamentary Committee Gives Nod to Proposed Dilution of Forest Rights

Supreme Court affirms right of forest inhabitants, prevents it from being limited to recognized communities

‘Black Day’ Protest against ecological plunder of forests, displacement of indigenous communities: Bhumi Adhikar Andolan

How a battle is being waged within India’s forests, for rights over land and resources

TN: Under the Forest Rights Act, 2006, 158 people in two villages have been granted title deeds

Amendments to Forest Conservation law to majorly affect the North East

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Following the footsteps of Uttar Pradesh government, the Haryana Assembly passed The Haryana Recovery of Damages to Property during Disturbance to Public Bill, 2021 by a voice vote, while Congress members rushed to the Well of the House demanding withdrawal of the bill amidst slogans of “Bill vapas lo, vapas lo” (Take the bill back).

The Chief Minister Manohar Lal Khattar justified the bill and said “it was necessary to instill fear in the minds of those who damage property and this is our constitutional legal system”.

Now that it has been passed by the Assembly, it will become a law as soon as it receives the Governor’s assent. The contentious bill “provides for recovery of damages to properties caused by persons during disturbances to public order by an assembly, lawful or unlawful, including riots and violent disorder”, reported The Indian Express. The bill also proposes a Claims Tribunal to determine liability and award compensation, similar to the law in place in UP. While the UP law was passed in the aftermath of the protests against the Citizenship Amendment Act (CAA) of December 2019, the Haryana Bill seems to be a response to the farmers protesting the three Central farm laws.

Vij said the Bill was meant to hold accountable those who burn shops and damage other public and private property during protests. “We are not bringing this Bill against people’s democratic right to hold a protest,” he said, adding, “the actual perpetrators of such acts of violence and crimes as also the instigators, organisers be made liable for damages to public and private property and the cost of the forces requisitioned from outside the state for controlling such acts of violence and crimes,” reported IE.

The opposition

The Congress, has vociferously objected to this bill and the Leader of Opposition in the Assembly and former Chief Minister of the state, Bhupinder Singh Hooda, said the law “is going to strangle democracy”. He also demanded that first those people should be identified who dug up roads to stop farmers from entering Delhi.

“Section-14 of the Bill states that the recovery will not only be made from those who indulge in violence but also from those who want to lead the protest, the organizers, those involved in its planning, those who provide encouragement and the participants. The government will take action by placing every protesting person in the category of guilty,” Hooda told IE.

Congress leader R S Kadian questioned the need for introducing such a law and objected to the use of the word “instigator” and asserted that it was “vindictive piece of legislation”. Independent MLA Sombir Sangwan, who had earlier withdrawn support to the Khattar government over the farmers’ issue said that there was a high probability of misuse of the law. congress leader Kiran Choudhary also asserted that the bill was brought to suppress farmers.

“The Bill itself is a law imposing a permanent ban on every person and group who speak, think, protest and state the flaws and mistakes of the government in the State. Not only does this law violate the fundamental rights enshrined in Article 19 of the Constitution of freedom of expression, but it also reflects the mentality and frustration of the BJP-JJP government that is scared of the people of Haryana,” Congress spokesperson Randeep Surjewala told The Wire.

Provisions of the Bill

The Wire reported that the statement of reason and objects for the Haryana Bill says:

“Whereas the general public has taken a serious note of various past and recent instances of mob violence where there was a large scale destruction, burning-looting of public and private properties, injury or loss of lives during disturbances to public order by an assembly, lawful or unlawful, including riots and violent disorder etc and therefore, the State as well as the private individuals, trusts etc had to suffer huge losses in terms of property and costs. The State Government is supposed to take all preventive, remedial measures so that such incidents are not repeated and public order is maintained. In order to prevent recurrence of such circumstances, there should be a legal framework to cause deterrence in the minds of the perpetrators of violence as also the organisers, instigators etc.”

Further, the bill defines “damages” as “loss, injury or deterioration caused by any act or omission by any person to property of central government or state government or another person during disturbance to public order” and defines “disturbance” as “caused by an assembly, lawful or unlawful and includes a riot, revolt or violent disorder”.

The Bill assigns the Collector the power to issue an order of attachment of property or bank account of any person against whom an award has been passed by the Claims Tribunal. As mentioned before, the Tribunal will determine liability and award compensation recoverable from persons involved in “leading, organising, planning, exhorting, instigating, participating or committing the incident leading to damages”. Further even if an appeal is to be preferred before the High Court, the same can only be made only upon depositing 20% compensation before the District Magistrate.

Related:

Haryana gov’t trying to trap farmers in false cases: SKM
Is UP’s new Ordinance on recovery of damages an example of abuse of power?
‘Naming & shaming’ instead of rule of law: UP recovery of damage to public & private property ordinance, 2020

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The Uddhav Thackeray-led Maharashtra government could bring back ballot papers for voting in the state. However, they will exist alongside instead of replacing the current Electronic Voting Machine (EVM) system. The government is likely to introduce a Bill to this effect in the Budget Session of the state assembly.

Assembly Speaker Nana Patole told News 18, “If the draft is ready, the bill can be introduced in the coming budget session.”

Hindustan Times reported that in response to an application by one Pradeep Uke of Nagpur, a meeting to discuss the possibility of reintroducing ballot papers was held at Vidhan Bhavan where apart from Patole, State Medical Education Minister Amit Deshmukh, the state’s chief electoral officer Baldev Singh and others were also present.

It is also important to note, that even if the Bill is passed, ballot paper-based elections can only be conducted for state legislature and local self-government elections. All alliance partners of the Maha Vikas Aghadi (Shiv Sena, Congress and Nationalist Congress Party) are reportedly keen to bring in the legislation, reports News 18.

Over the years several concerns have been raised by activists, advocacy groups and Opposition parties about the vulnerability of EVMs. Even after the introduction of Voter Verified Paper Audit Trail (VVPAT), the concerns haven’t abated, in fact they appear to have grown.

According to a recent report titled An Inquiry into India’s Election System: Is the Indian EVM and VVPAT System Fit for Democratic Elections? published by the Citizens’ Commission on Elections (CCE), the following lacunae have been found in the EVM-VVPAT voting system:

• The ECI does not appear to safeguard against the possibilities of ‘side-channel attacks’, i.e. hacking electronic devices through electromagnetic and other methods.
• Even the ‘software guard extensions’ of sophisticated Intel processors have proved vulnerable to interference and tampering.
• Just a few EVMs can swing election results for a constituency.
• That the processor chip in the EVM is only one-time programmable is also in doubt.
• In fact, latest EVMs use the MK61FX512VMD12 microcontroller supplied by an US based multinational, which has a programmable flash memory.

The report has raised concerns about VVPAT saying, “The ECI’s VVPAT system is not truly voter-verified because it does not provide the necessary agency to a voter to cancel her vote if she thinks it has been recorded incorrectly. Also, in case the voter raises a dispute, there is no way for her to prove that she is not lying. As such, penalizing a voter in such a situation is not correct.”

Although assembly elections are not due in Maharashtra this year, they are scheduled to take place in April-May in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal. It remains to be seen if any of these states/union territories will follow in Maharashtra’s footsteps.  

Related:

CCE report raises concerns about EVM-VVPAT voting
The EVM Conundrum: Concerns over EVMs not invalid, must be addressed
ECI Silent on Serious Irregularities in May 2019 Gen Election: Constitutional Conduct Group

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The bill, as passed–after some revisions since it was first placed before parliament in 2016–is meant to prohibit discrimination and make transgender life more secure, but transgender representatives and activists call it “regressive”. They have termed the day it was approved by the Lok Sabha as “Gender Justice Murder Day”.

“The transgender bill is regressive and half-hearted,” Harish Iyer, gender-rights activist, told IndiaSpend.

Here are activists’ main contentions:
 

• Instead of the freedom to determine their sexuality, India’s transgender people must now submit to a certification process involving a government official and doctor. 
• If transgender people are sexually attacked, their attackers face a maximum jail term of two years–against a minimum of seven years for women who are attacked.
• If young trans persons want to leave home because of pressure to conform to the sex they were born with, they can no longer join the trans community. They must go instead to a court, which will send them to a “rehabilitation centre”.

A trans person may require a certificate of identity to access a variety of social-welfare programmes that exist or might be offered, including those relating to food, healthcare, educational opportunities, insurance.

The 17th Lok Sabha, the lower house of parliament, whose monsoon session ended on August 6, 2019, passed a record 35 bills, working 281 hours over 37 days. On average, a bill was passed every eight hours, but none was referred to a committee, with critics saying many approved bills had infirmities and required further debate. This story is the first in a series that will examine some of the most significant of these 35 bills.

The religious foundation for transgender rights

The Hindu concept of ‘ardhanarishwara’–an androgynous deity that comprises the merged forms of Shiva the destroyer and his female consort–forms the religious foundation for the acceptance of transgender people in India. But this pious underpinning of the lives of transgenders has subsumed their demands to be regarded as full citizens of a modern democracy, transgender representatives allege.

“When we appeared before a parliamentary committee, the level of ignorance was too much,” Grace Banu, a transgender-rights activist from Chennai, told IndiaSpend.

“One asked me if I had a penis,” said Banu, who was born male but now identifies and dresses as a woman. “As for the BJP [Bharatiya Janata Party] MPs [members of parliament], they only kept talking about us as ardhanarishwara.”

The first bill on transgender rights introduced by the Dravida Munnetra Kazhagam’s Tiruchi Siva in the Rajya Sabha in 2014, was “an ideal bill” in conformity with the National Legal Services Authority (NALSA) judgement of the Supreme Court that year, said Ashok Row Kavi, founder and chairperson, Humsafar Trust, an advocacy. The bill was a private member’s bill, accepted and passed in the upper house in April 2015.

When the transgender bill was next introduced by the government in the Lok Sabha on August 2, 2016, as the Transgender Persons (Protection of Rights) Bill, 2016, it was opposed on many counts, including the proposal for “screening committees” to decide who was a transgender and who was not, and the criminalisation of begging, a mainstay for a majority of transgender Indians.

“To the credit of the government, they took a lot of our inputs and redefined the initial draft of the bill which was extremely regressive,” Iyer said. “Earlier they defined trans people as ‘not wholly male nor wholly female’. Now they removed that and inserted the right definition of transgender.”
Although the screening committee has been removed, trans persons still need a certificate from a government doctor and the district magistrate.

“The pivotal point is you have to go to a committee or a doctor to get registered as a trans person,” said Iyer. “A trans person could be put through so many hardships, the kind of questions that would be asked–related to genital organs–which would not be asked of you and me.”
The bill must be cleared by the Rajya Sabha, parliament’s upper house, and the president of India, to become law.

Transgender representatives said they proposed about 100 amendments, but the bill that was first passed on December 17, 2018, had 27 amendments. It lapsed with the dissolution of the house before general elections in 2019. Those 27 amendments stayed in the latest version, which transgender organisations say annuls the progress enshrined in a five-year-old Supreme Court order.

The landmark Supreme Court judgement

The Supreme Court in 2014 recognised transgender persons as a ‘third gender’, affirming their fundamental rights under the Constitution.
The judgment in a case between the government of India and the National Legal Services Authority (NALSA)–known popularly as the NALSA case–gave transgender people the right to “self-identification” as male, female or third-gender and granted reservations in educational institutions as well as public employment.

The new transgender bill prohibits discrimination by “denial” of “services”, such as education, employment and healthcare, but omits mention of affirmative action in jobs.

The bill defines a transgender as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta [terms used in Indian languages for transgender people]”.

The marginalised status of transgender people was recognised by Justice K S Radhakrishnan, who said in the NALSA case: “Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”

Recognition rescinded

The 2019 bill mentions self-identification by transgender people, as made possible by the NALSA judgement, but a district magistrate and a government doctor must determine if they medically qualify.

For a community that is discriminated against, these can be insurmountable hurdles, transgender representatives say.

“There is something wrong with the whole systemic approach towards the transgender community, which this bill is supposed to correct,” Kavi said. “The whole process needs to be drawn into the public health and the beneficiary system, which is missing.”

The first and second drafts were “totally regressive,” Kavi said. “It is not a perfect bill and needs far too many amendments and modifications,” he said.

The identification process

The bill says transgender persons must file an “application for certificate of identity” with the district magistrate (DM), who will then issue a “certificate of indentity.”

This certificate “shall confer rights and be a proof of recognition” of a transgender person’s “identity”.

After the certificate is issued, “if a transgender undergoes surgery to change (the) gender either as a male or female,” that person will have to make an application to the district magistrate for a “revised certificate”, the bill states.

The DM will, on the basis of “the application along with the certificate issued by the medical superintendent or chief medical officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating (the) change in gender,” according to the bill.

“So the screening committee still exists but [the new bill] does not mention the word,” said Banu, the transgender representative.

Another lacuna is the “total absence and invisibilisation of trans men” [female to male transgender]”, said Kavi. “All the problems dealt with are those involving [those who go from] male to female.”

Trans men are born as women who want to become men, and sex-reassignment surgery is more difficult, said Kavi. It requires removal of the breast, Adam’s apple and a series of other operations. “But there is no mention at all about the facilities or help they should get,” he said.

Reservations and children

The new bill does not, according to activists, go into issues of livelihood, beginning from school.

While the new bill requires the government to “formulate welfare schemes and programmes to support livelihood” including “vocational training and self-employment” for transgenders, it ignores a key demand–public-sector job reservations, such as those for differently-abled people.

“The Supreme Court judgement said trans people are considered socially and economically backward,” said Banu. “In India, trans people are considered OBC [other backward castes], and, especially in Tamil Nadu, the MBC [most backward class] category. I am a Dalit, an Adivasi, a Muslim trans, how do I accept this OBC or MBC category reservation? It’s complete injustice.”

The issues with the bill begin from its failure to recognise the early stage of transgender life.

“The bullying of transgender or LGBT students in school is an issue which the govt is not addressing,” said Kavi. Bullying of trans persons, he said, is a systemic social problem in India, especially among children. Trans children are “significant in number though they are a minority”, and many are in school and not itinerant, as policymakers mistakenly think, he said.

Another contentious issue is the departure of transgender people from families that do not accept their non-binary or fluid sexuality.

“No child shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court,” says the bill. “If any parent or family member is “unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre.”

This also means that young people would no longer be able to decide if they want to join the trans community; a court would decide if they have to go back to their families or a rehabilitation centre. “In India, a lot of trans people have committed suicide, most are within 25 years of age,” said Banu.

The trans bill has also been criticised for a lack of attention to discrimination. Iyer cited the example of the Protection of Children from Sexual Offences (POSCO) Act, 2012, which, for instance, explains how a police station should welcome children. “This bill lacks all of that, it does not show any plan of action and is half-hearted,” said Iyer.

(Mallapur is a senior analyst with IndiaSpend.)

Courtesy: India Spend

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Image Courtesy: Indiatoday.in

The introductory letter addressed to the citizens states, “Under the Constitution of India as an Indian Citizen YOU are sovereign and are guaranteed certain Fundamental Rights. One of these Rights is Freedom of Speech, however to be Free to Speak you need to be Free To Know. It is this right that the present Govt is trying to curtail. The Right To Information act 2005 granted YOU powers to ask questions & demand accountability for the way YOUR taxes are being spent. It gave YOU the power to know details of the work done in YOUR localities, the decisions taken by YOUR govt.Unfortunately, the Right To Information Amendment 2019 just passed by YOUR MPs now threatens to take away YOUR power by making Information Commissioners dependent on THEIR whims. Taking away impartiality & independence so that everyone from the Central Information Commissioner to now dependent on THEM & therefore less answerable to YOU”.

The letter to the President of India begins with the words, “I am appealing to you not to sign the RTI amendment bill. I beseech you to send it back to the Parliament for reconsideration. This is a cherished right which has been codified by the RTI Act 2005. It has been rated amongst the best transparency laws in the world”.

Whether President Ram Nath Kovind, pays heed to this appeal (by not giving his assent) is, at this moment, anyone’s guess! Strangely enough, as a former Member of Parliament of the Bharatiya Janata Party, President Kovind was a member of the Parliamentary Standing Committee on ‘Personnel, Public Grievances, Law and Justice’ that had minutely and very comprehensively discussed each and every section of the RTI Bill in five sittings before it became an Act in 2005.

That Committee held the unanimous view that the Central Information Commission was a vital and core creation under the Act, which would be responsible for the execution of the RTI legislation. It therefore deemed it imperative to confer on the Central Information Commissioner (CIC) and the Information Commissioners the status equivalent to that of the Chief Election Commissioner and Election Commissioners respectively. The campaign whether it ultimately succeeds or not – is bound to have a long-term impact on the mobilisation of people’s opinions in the country.

July 25, 2019 was indeed a black day for Indian democracy when ‘The RTI Amendment Bill, 2019’was introduced in the Rajya Sabha and passed by it. Most of the opposition wanted it to be referred to a ‘Select Committee’ for further scrutiny- but this was rejected by the Government. In the voting that followed, the BJD, the TRS and the YSR Congress, played truant; they sided with the Government and provided them with the ‘win’ they desperately needed. It was extremely tragic for the people of India, that opportunistic politics, lust for power and not wanting to be accountable, has in effect destroyed an important instrument which had greatly empowered the citizens of India!

Earlier, on 19 July ‘The RTI Amendment Bill, 2019’, was introduced in the Lok Sabha and it was subsequently passed. The new Bill seeks to amend the RTI Act in order to empower the Central Government to unilaterally decide the tenure, salary, allowances and other terms of service of Information Commissioners. This of course is a subtle way of telling the Information Commissioners“either you toe our line or out you go”! Until now, those in the Information Commission were on par with the Election Commission and the Judiciary – with regard to their tenure, salaries etc. Making the members of this independent statutory body, another group of ‘babus’, will in effect undermine the autonomy of the Act. There will be just a few who will be willing to stand up to the brute power of the State if their careers and remuneration are at stake. Until now several of the Information Commissioners were able to deal with queries in an objective way; sought and provided information free of fear or favour and in more ways than one upheld the dignity and the rights of an empowered citizen.
 
Ironically,it is today the BJP and its ilk – who have left no stone unturned to make the RTI as toothless and redundant as possible. Inspite of doing all they can to destroy several Constitutional and other independent statutory bodies in the past five years, some citizens have effectively used the RTI to expose their corrupt and other fraudulent acts of the current regime. So naturally, they are mortally afraid of the RTI. In a hard-hitting Op-ed in the ‘Indian Express’ (26 July 2019), AAP leader Manish Sisodia writes, “An honest government would never be scared of information being made accessible. Even a corrupt UPA regime deserves credit for introducing RTI in the first place. But the Bharatiya Janata Party, a party that used RTI exposes against the Congress, and has now taken its place in the national political landscape, is ironically, terrified of it. This speaks volumes about the intent of this government. We are entering a disturbing phase, where the wheels of democracy are being forced to stop in their tracks.”

With the Right to Information (RTI) Act coming into force on 12 October 2005-participatory democracy had come of age in India! It was indeed a red-letter day for the country. The UPA Government that taken over the reins of power a little over a year earlier, was making good its promise: of ensuring a more transparent and people-centred governance. The RTI was a significant step in the right direction. After all,democracy is a participatory process and a well-informed citizenry acts as its watchdog. Information dissemination and exchange is an inevitable part of a vibrant democracy. This helps maintain transparency at all levels. Till 2005, transparency was held hostage to red tape largely by an insensitive bureaucracy and an opaque political system!

The Right to Information (RTI) Act is in essence a codification of this important right of citizens. It is derived from our Fundamental Right to expression under Article 19. Any citizen therefore has the right to know from officialdom all opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating togovernance. Section 4 of the RTI Act makes it mandatory for a public authority to disseminate certain information proactively. The RTI Act 2005 has enabled citizens to effectively have access to information (including records, documents, memos, e-mails).

The UPA through its commitment to the RTI gave a huge gift to the country! They failed miserably however in their ability to ‘market’ it and the two other rights namely the Right to Education (RTE) and the Right to Food (RTF) which they piloted and ushered in during their ten-year reign. Their inability to highlight their path-breaking achievements was a crucial factor for their massive defeat in the General Elections of 2014. The BJP on the other hand seized the RTI as an opportunity to expose corruption and other chinks of the UPA Government. Thanks to RTI, some corruption in high places was exposed and it ultimately resulted in the undoing of the UPA and particularly the Congress party.

Aruna Roy, the leader of the‘National Campaign for People’s Right to Information’ (NCPRI) and who has been instrumental in the passage of the RTI 2005, went hammer and tongs at the proposed amendments to the RTI and the surreptious manner with which the Government introduced it in the Lok Sabha a few days ago. Roy categorically stated at a Press Conference in Jaipur, “The bill proposing changes in the Right to Information Act (RTI) Act is regressive and aimed at undermining the independence of information commissions. It is a matter of grave concern that the amendments to the Right to Information Act (RTI) law were introduced in complete secrecy and in flagrant violation of the Pre-Legislative Consultation Policy of the Central government, which mandates public disclosure and consultation on draft legislation,”She further added, “owing to the undemocratic way of its introduction”, the contents of the draft amendments were not known by MPs, citizens and the media till the bill was circulated to members of the Lok Sabha on the eve of its introduction”.

For the BJP, their allies in the NDA and for the Central Government there were five significant orders passed by the Central Information Commission that would have propelled the Right to Information (Amendment) Bill 2019. Each of these orders clearly exposed the deep level of corruption that has become the DNA of the ruling party and its naked muscle to negate any challenge to their “authority”.

During the debate in the Rajya Sabha on the amendments it was Congress leader Jairam Ramesh who highlighted these five orders issued by the CIC.The five cases he mentioned to strengthen his arguments as to why these amendments were being brought in, were the CIC’s order on disclosure of Prime Minister’s educational qualification; the false claims made by the Prime Minister on bogus ration cards;the CIC’s revelation on demonetisation that RBI disapproved it and the then RBI Raghuram Rajan giving the list of top NPA defaulters and value of black money brought back from abroad.

Jairam was emphatic in saying, “The timing of the amendment is not so innocuous and innocent. There are five cases that have propelled the government to bring these amendments”. He further alleged that the government was bringing in amendments in the Right to Information Act to take revenge on institutions as it exposes the “false claims” of the government.

Jairam also raised questions on the timing of bringing the amendments to the Bill which mandates timely response to citizen requests for government information. He said between 2003 and 2013, the then Chief Minister of Gujarat (Narendra Modi) would come to the Planning Commission and the body would ask him uncomfortable questions on the state of health and education in Gujarat. “In 2014 the CM of Gujarat who became PM of India had his revenge and abolished the Planning Commission. Today, Prime Minister of India is taking his revenge with for these five cases,” he said.

He went on to add that,“These are the embarrassing cases for the government. The case about his educational qualification in Delhi Court. The Prime Minister has claimed four crore bogus ration cards were weeded out by his government whereas the RTI shows that the number of bogus rations cards was actually 2.3 crore. The CIC directed the Prime Minister office about the quantum of black money brought back from abroad. The PMO refused to share the details despite CIC order,” The former union minister said that the real reason for the amendments in the Bill was to make the CIC “toothless” and to convert the information body to “Prime Minister office directed body”. He also accused the government of giving misleading statements regarding its claim of strengthening the RTI Act and the CIC.

Further, Sisodia highlights what the RTI has done for democracy since it was made law in 2005 when he says poignantly,“The wheels were turning in the direction of a deepening of democracy. The measure of progress of any democracy is the level of empowerment of ordinary citizens.

When the state seeks to take away power from ordinary citizens, it is at the cost of democracy itself. The RTI movement was born out of the view that people are the masters and the government exist to serve them. For the five-year period after elections concluded, there was no mechanism to hold governments accountable. The RTI plugged this loophole. The RTI has now become the backbone of our democracy”.

Concerned citizens from all over the country and from all walks of life have been expressing their displeasure of how every facet of Indian democracy is not only being hijacked but being totally destroyed, by the BJP their allies and their ilk. Well-known RTI activist Anjali Bhardwaj tweeted, “Sad day for democracy. The ONE law which empowers people to hold the government to account stands diluted. RTI amendmentBill passed by Parliament. We will now petition the President to return the Bill” and in a further tweet she writes, “Struggle to #SaveRTI not over.Use petition in link to email President of India demanding that he not sign #RTIAmendment Bill”. It is a passionate appeal that no one who is concerned about the future of the country, should dare ignore.The ruling regime, who is just not concerned about the rights and freedom of the ordinary citizen, has just tolled another death-knell for democracy in India. We, the people of India, must wake up at least now, take a stand to #Save RTI and petition the President,before it is too late.

(The author is a human rights and peace activist/writer. cntact:cedricprakash@gmail.com)
 

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 Context

Let’s go back to 1985 when a draft bill presented by an NGO, for the first time introduced the concept of regulation of working conditions, rather than complete prohibition of child labour. Groups working with children and child labour were all drawn into a nationwide debate. They were divided in their stand. One group felt that, although it may not be possible to eliminate child labour immediately, any move — legal or programmatic must be towards elimination. The second group felt that since child labour was a ‘harsh reality’ steps must be taken to ensure that they are not further exploited and therefore, legal measures were required to ensure this.[1] This draft was what was converted into the Child Labour (Prohibition and Regulation) Act 1986.
 
For those of us who have been witnesses to the debates around child labour since the 1980s, there is sense of déjà vu. The PIB release that released on May 16, 2015 says – However, while considering a total prohibition on the employment of child, it would be prudent to also keep in mind the country’s social fabric and socio-economic conditions. In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of occupations. Therefore, striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country, the Cabinet has approved that a child can help his family or family enterprise, which is other than any hazardous occupation or process, after his school hours or during vacation”.
 
This could be an undated statement as this is exactly the same argument that the government had made in 1985-86 to allow for children to be able to work in family based work or for skill training, even if it was hazardous. The only difference in 2015 is that while making  an exception for children to be engaged in family based enterprises, the current bill  qualifies it by saying that children must continue in school as per their Right to Education, and specifies that the family enterprise must not be hazardous. But therein lies the gap.
 
Loopholes in the law- are they deliberate?

‘Family’ is defined in the proposed bill as child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. It uses the word ‘help’ to describe the child’s involvement in the family enterprise (after school hours and during vacations).
 
In a feudal, caste driven Indian society what do these provisions amount to? Child labour in India has become so normalised that there is neither shock nor shame – it is a ‘necessary evil’. Since most family based occupations in India are caste based, the exception in Section 3 in the law, which allows children to work in family occupations, will only keep the caste system intact-like, for a potter's son/daughter to be a potter, a weaver's child to be a weaver and so on. Without doubt, this kind of a law will worst affect the Dalit and the marginalised who are at the bottom of the caste hierarchy. The Ministry officials of course say that this is taking the argument too far!
 
But, why would the government of a country, that is today by its own admission, the fastest growing economy of the world, feel compelled to justify and keep children in labour despite Parliamentary Standing Committee examining the bill saying: "The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for their physical and cognitive development."[2]The Committee also stated that rest and recreation is of utmost importance for the mental and physical development of a child and that working will only adversely affect their studies and their health.
 
Clearly, the Committee was more cognisant of the fact that children in India find it very hard to continue in school. That is why despite rising enrolment, retention is not that great. It is the girls, the Dalits and tribals who are ones who drop out to ‘help’ the family.
 
It must be recognised that the assumption, that ‘cultural traditions’ have to be accepted without intriguing into the inherent inequalities, perpetuates certain historic exploitative practices. It has been argued that any abstraction of child labour from children’s work accords social acceptability to some forms of child-work, masking marked ideological and gender biases in society. [3]
 
The officials of the Ministry of Labour and Employment who have drafted this bill say that this proviso is imperative to prevent criminalisation of parents and families. As  a  very senior official said “this explanation or exception is necessary, otherwise if I ask my child to put a  nail on the wall—that too can be counted as child labour and lead to my prosecution- see how dowry law is used to harass innocent people. We don’t want a similar situation with this law”.
 
A quick look at the government’s ownstatistics of prosecution tells us how limited the use of the law has been in the past.

 
What is more, the government also noted that most employers were acquitted by the courts as the prosecution failed to prove the offence due to the casual approach of the prosecution witnesses and inability to produce independent witnesses. [4]
 
Under these circumstances, is it at all likely that ‘zealous members of society’ that sees child labour as normal and necessary or labour inspectors who have been ineffectual in the past, will go around snooping into people’s houses only to pick up poor parents and prosecute them?
 
Defining or conceptualising child labour has been and continues to be one of the most complex issue as it involves three difficult-to-define concepts ‘child’, ‘work’and‘labour’. Each of them is defined differently by different countries and internationally. As stated by Burra, “those who have argued for narrow definition have best been motivated in part by the desire to reduce the size of the problem and thus make it manageable. But this conceptual sleight of hand flies in the face of common sense results in making the work of millions of children invisible to public policy and public action.”[5] This indeed is the reality even today.
 
Moreover, apparently non-exploitative, the notion of domestic work needs unpacking in the light of the fact that many children never get enrolled in school or are forced to drop out because they have to look after the home chores or undertake sibling care,  and this is especially true for girls.  This was an area that was highlighted and discussed even when the debate around child labour was at its nascent stage and continues to be as relevant today.
 
Children will and must support their families or ‘help’ their parents- they do so today and they will continue to do so. The problem lies in the inclusion of this proviso in the law, especially since we are well aware that the notion of family is a very wide and ambiguous in India. This is exactly the kind of legal loophole that has led to the continuation of child labour till now. Past experience of implementation of the law that had a similar proviso (Section 3 of the CLPRA, 1986) has amply shown that this was the one way in which children were tied to home based work and exploited.
 
Given the reality that the trafficking of children is rampant, in the back drop of the wide concept of family, this could also lead to children being trafficked for work as many traffickers claim that the children in their care are ‘family’. In the absence of comprehensive birth registration it may be very difficult to ascertain whether a child is really part of the family or not. In addition, many families may host children from the extended family as part of informal kinship care.

Remember, that the government is also in the middle of discussions on sponsorship- which will include kinship care.
 
And although all children are banned from working in hazardous occupations, the 16 occupations and 65 processes that were listed as hazardous in the 1986 law has now been replaced in the Bill with -mines, inflammable substance and hazardous processes which has the meaning assigned to it in clause (cb) of the Factories Act, 1948. These are the same that will also apply to the 14-18 year olds categorised as ‘adolescents’ in the Bill. 
 
This reduction in the number of occupations that fall into this category and no provisions in it for an increase in this list, means that children will be employed in domestic work, hotel and dhabas and several other such places that have now come to be recognized as extremely hazardous occupations.

 
Besides, every day newer ‘occupations’ are coming up which are hazardous and dangerous. For example when the law in 1986 was formulated, there was no employment related to e-wasteand no one can deny that children engaged in working with e-waste are in extremely hazardous occupations! Similarly the impact of working with pesticides on children in agriculture was not there in the past neither was working with bags full of hair to make wigs!But they will not find a place in the law.
 
Also, this proviso has been put in without taking into consideration the fact that although free and compulsory education is a right of children in the age-group of 6-14 years, we have only seen an increase in the enrolment rates, while attendance and retention of the students is still a challenge we are yet to overcome. In a situation when children feel compelled to work to support their families, there is a greater likelihood of their dropping out of school.
 
The second provison that has been included in the Bill is address children working as an artist in the audio- visual entertainment industry or in sports activities except circus. These are welcome inclusions given the large number of children in advertisements and reality shows today, or to address the fate of children like Budhia.[6]But what about children who are street performers and acrobats risking their lives on ropes and poles (although not in circus, what they do is not very different) or “artists” who are singing and dancing late into the night in restaurants and weddings? They are not covered by this law. Is that because they are needed to preserve our rich social fabric? There is a definite class bias to the law that needs to be addressed.
 
In fact it is high time to consider an amendment to Article 24 of the Constitution of India which identifies child labour as only those children below the age of 14 years and bans employment of child labour in only hazardous employments. In doing so, it remains  silent on employment of children above the age of 14 years and allows a statutory distinction between ‘hazardous’ and ‘non-hazardous’ sectors of employment,  which has resulted in a serious challenge in dealing with the issue.  It does not tell us what is to be done with the remaining children between the age of 14-18 years. This is important because this is how children have come to be defined in the National Policy for Children, 2013 and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, National Plan of Action for Children, 2005 and other legal and policy instruments.
 
The Ministry of Labour and Employment says that the law is drafted keeping in view the option that the age upto which free and compulsory education will be made available can be raised and the law on child labour will be applicable accordingly. This is very welcome as today, the Right to Free and Compulsory Education law which only gives the right to education upto 14 years, or class eight, needs review as it does not qualify children for any further education or entry into any skill based/ vocational training in any recognised institute such as ITIs.  The age of child labour would then automatically be raised and our children protected. There is a clear argument for increasing the age of right to free and compulsory education to a minimum of secondary education so that children are protected from labour and exploitation. Although this is not in the purview of discussions around this bill, given the intrinsic connection between education and child labour, this cannot be ignored.
 
While in the 1980s and before, “nimble hands” were needed to knot carpets, today they are needed to cross-pollinate BT Cotton Seeds! It is perfectly justified! Most of middle class India, including many bureaucrats and political leaders feel it is perfectly “OK” to employ children as domestic workers as the children of the poor “need” to protection of art, culture and crafts and children’s working to do that is also justified.
 
This amendment to the child labour law must not be read in isolation. For example read the definition of family enterprise which means any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons along with the proposed Small Factories (Regulation of Employment and Conditions of Services) Bill that seeks to exempt units employing less than 40 workers from 14 labour laws including the child labour law[7]etc. Will these small factories also be part of “Family enterprises” that children will be “helping” in? The Factories Amendment Bill[8] continues to have several clauses that allows for children below 14 years to continue working.
 
Indeed, this Bill must be seen and analysed in the context of the dilution of labour laws and standards in the country and the move towards greater informalisation of labour and the push towards manufacturing in the unorganised sector. As Mr. Shankar Aggarwal, Secretary Ministry of Labour and Employment is quoted saying “All the amendments are being done keeping in mind three things—need of the times, workers’ protection and creating an environment for more job creation,” ….“Every year, the country needs to create an excess of 10 million jobs and for that manufacturing sector is key. The proposed labour reforms will help the pace of industrialization while keeping workers’ rights intact.”[9]
 
Clearly the main stress of the Ministry is to create jobs to meet the needs for manufacturing, not so much to protect children. In this backdrop, when production is pushed into the homes, who is to regulate the entry of children into the work force? This is nothing but keeping the un-scrutinised and the unregulated informalisation of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws.
 
Not convinced? Watch a film Stained Glass by Meera Dewan[10]. She had made a poignant, and for many of us, a life changing film- Whose Children in 1986, just as the discussion on the child labour bill was on. She has followed the children that were there in her film in 1986 into their adulthood in Stained Glass. As we discuss the new amendment, it is good to see what those children of 1986 and now adults of today have to say, as also the child labourers of today.
 
Is it not a shame for the fastest growing economy of the world to continue with its growth path on the backs of children and justifying it as a social reality?  And is it not time that the law on child labour was aspirational rather than a reflection of “harshsocial reality”? 
 
Laws can be used to lead the change and this is one such opportunity that has come after 29 years. Let us not lose it. 
 

ProChild Coalition: New Child Labour Bill will push more children into hazardous work

A hindi version of the Press Release by the Pro-Child Coalition can be found here

After 30 years the government has introduced a new child labour law which claims that it bans all forms of child labour till the age of 14. Sadly, the country is buying into an illusion. The truth is that the amendment to the Child Labour Prohibition and Regulation Amendment Bill 2016, passed by the Parliament continues to allow children to be employed in family-based enterprises, and secondly, the employment of children in most hazardous occupations like tanning, bangle-making, zari work, carpets, domestic work, e-waste and numerous others that till recently were recognised as hazardous for children will now be permitted. ProChild Coalition, a network of academics, organisations and individuals strongly opposes the Bill in its present form. Through this brief note we would like to raise some important concerns that arise in the wake of this.
Legitimises Child labour
 
The government claims that it has banned all forms of child labour up to the age of 14 years however, with the new Bill it has de-incentivized education by legalizing family-based work. ‘Family’ is defined in the proposed bill as child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. It uses the word ‘help’ to describe the child’s involvement in the family enterprise (after school hours and during vacations). The problem lies in the inclusion of this proviso in the law, especially since we are well aware that the notion of family is very wide and ambiguous in our country. This is exactly the kind of legal loophole that has led to the continuation of child labour till now. Past experience of implementation of the law that had a similar proviso (Section 3 of the CLPRA, 1986) has amply shown that this was the one way in which children were tied to home based work and exploited.
 
Reinforces Caste based occupations
 
Since most family based occupations in India are caste based, the exception in Section 3 in the law, which allows children to work in family occupations, will only keep the caste system intact-like, for a potter's son/daughter to be a potter, a weaver's child to be a weaver, a tanner’s child to be a tanner and so on. In a feudal, caste driven Indian society what do these provisions amount to? Without doubt, this will worst affect the dalit and the marginalised who are at the bottom of the caste hierarchy, a ghastly example of which was the recent beating and humiliation of dalit youths in Gujarat.
 
Child labour over Child Protection?
 
Although all children are banned from working in hazardous occupations, the 16 occupations and 65 processes that were listed as hazardous in the 1986 law has now been replaced in 3 occupations and 29 processes that are in the Factories Act which covers only the organized sector.
 
This reduction in the number of occupations that fall into this category and no provisions in it for an increase in this list, means that children will be employed in domestic work, hotel and dhabas, brick kilns and several other such places that have now come to be recognized as extremely hazardous occupations and fall in the unorganized sector. Although the government’s data claims there is a significant decrease in the number of child labour in the country, in reality the number of children already working in the unorganized are multiplying (for example Census 2011 shows that child labour in urban settings has actually increased- and that is where the unorganized sector is).Besides, every day newer ‘occupations’ are coming up which are hazardous and dangerous. But they will not find a place in the law.
 
No Rights for Poor Children
While the Parliament unanimously passed the Indian Institutes of Technology(Amendment) 2016 to benefit the young wizards of India, the same Parliament, barring MPs from the ruling NDA,expressed surprising empathy for India’s children to oppose the passing of this regressive Bill.
Indeed, this Bill must be seen and analysed in the context of the dilution of labour laws and standards in the country and the move towards greater informalisation of labour and the push towards manufacturing in the unorganised sector. As Mr. Shankar Aggarwal, Secretary Ministry of Labour and Employment is quoted saying “All the amendments are being done keeping in mind three things—need of the times, workers’ protection and creating an environment for more job creation,” ….“Every year, the country needs to create an excess of 10 million jobs and for that manufacturing sector is key. The proposed labour reforms will help the pace of industrialization while keeping workers’ rights intact.”[11]
 
Clearly the main stress of the Ministry is to create jobs to meet the needs for manufacturing, not so much to protect children. In this backdrop, when production is pushed into the homes, who is to regulate the entry of children into the work force? This is nothing but keeping the un-scrutinised and the unregulated informalisation of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws.
 
It seems the government is in a state of intellectual and policy disarray. While on one hand it talks about Skill India, and Girls’ education, on the other hand by passing this law dilutes the efforts keep their children out of school, as theParliamentary Standing Committee examining the bill had cautioned: "The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for their physical and cognitive development."[12]Child labour in India has become so normalised that there is neither shock nor shame – it is a ‘necessary evil’.
It is obvious that the government is happy to put the burden to make ‘Make in India’ a success only on children from poor,dalit, muslim and tribal families but Shouldn’t a country vying for the global high table aim higher for its children?

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