Shh…don’t make jokes. The jesters are thrown into the sea if the king feels bad. Don’t insult the king, or his deputy or his deputy’s deputy’s deputy’s deputy, or any of the men on the throne. Don’t talk about the demolition, the houses being turned to rubble, the bulldozers and their power. They are hunting voices. They are finding the loudest and clearest and the fearless and they are stringing them up on the market square so everyone shall see them and shut their tiny mouths. Quell the dissent. They don’t like art, oh no it makes them very angry. They don’t understand it, they don’t enjoy it and they’ll tolerate it if they have to unless it’s about them. It’s not easy being the butt of every joke, you know. It hurts.

Shh…don’t hurt their feelings. They don’t like it and they don’t know how to cry properly so they’ll pick you up, yes you, the young students, the trannies, the women, the Muslims, the Dalits, the artists, the reporters, and the dissenters. The question-askers and the answer-tellers and those who listen to them. You are only excluded and marginalised and untouchable until it is time to throw you into jail. Then they will grab you however required and shove you in a box.

Shh…don’t wake the people. They want to discuss the temples in the sea and the temples underground and the temples in the mosque and the comedians and the actors and actresses and their divorces and the gods and the goddesses and which one is sad and hurt and how one god is better than the rest. The people are sleeping, the people are gossiping, the people cannot see how the thieves have entered their houses to steal their food and take away their freedom but do not wake the people. They want to be asleep. If you wake them they will still ask about the temples and sad orange men and about which flag is better and who wore what when and they will watch the thieves take everything and they will let them. They will let their children be snatched and their houses be broken and all their money taken away and they will wake up and ask where the temple is, where the temples went and where new temples shall be built.

Shh…don’t ask questions. They will ask you to keep your mouth shut and they will turn you against one another and the blue will fight the green and then the orange wins. But this is a democracy after all so the only king you can question is the one who died more than 300 years ago, and the one that died 61 years ago, and all their children because there is a statute of limitations on these things. You can uproot their graves and celebrate your festivals in their houses of worship and say whatever you want about them.

Shh…don’t talk about Palestine. Of the hungry children, or the missing children, or even the parts of the children, the ones severed from their little bodies. Don’t talk about Palestine, because don-don and Mr. X and all their friends will get very sad and then they’ll get very mad and then they’ll lock you right up where all the naughty children go. Is that where the children of Gaza went? If yes then I want to go there, I want to play with them and I want to eat with them and roll around in the mud with them and race them to see who’s faster but it’s always them because hiding from guns and running from bombs gives you speed like no other. No they won’t send you where the children of Palestine went because even in confinement even in death they will not let you be together.

Shh…enjoy your freedom. You can break the rooms where the people are heard, where songs are sung, where poetry is recited. You can kill your neighbours, you can rape their women, and rape your wives, you can hate the colour green, vandalise their property, break their shops. You can bring back untouchability, be proud of your superior identity, eat your cow dung, beat the farmers, kill the students, send those with a voice to jail and abandon your wife. But you cannot love. You cannot love your wife and you cannot love your neighbour and you cannot love art and poetry and you must cheer when the jester is beheaded and you must bow to the king and celebrate his wars. You can criticise kings of the past and disrupt their graves but the kings that sit today on their throne of lies must not be hurt.

Shh…for silence is golden and violence is platinum and cow dung is a treasure and if you fall in line, keep the gold, wield the platinum then they will stuff your mouth with the treasure and it will replace all the love, all the freedom, all the art you’ve ever wanted.

(The author is a student of law in Mumbai and can be contacted at parulekarpriyanka02@gmail.com)

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The recent order of the Delhi High Court directing YouTuber Shyam Meera Singh to remove his video critical of Isha Foundation and its founder, Sadhguru Jaggi Vasudev, raises significant questions about the balance between free speech and the right to reputation. The court’s decision, passed as an ex-parte ad-interim order without providing Singh an opportunity to present his case, highlights the increasing use of defamation laws to curtail criticism and investigative reporting.

The court directed Google LLC (YouTube), X Corp, and Meta to remove the video from their platforms. Singh was further restrained from sharing or publishing the video in any form, and the court went a step further by barring the general public from re-uploading it. This sweeping injunction raises concerns about the breadth of judicial power in restricting digital content before a full trial.

The order states “Defendant No.4, his associates, servants, agents, affiliates, assignees, substitutes, representatives, employees and/or persons claiming through him [are restrained] from creating, publishing, uploading, sharing, disseminating, etc., the defamatory videos.”

The court justified its decision by stating that Singh’s video was based on “unverified material” and that its title was “clickbait to attract public attention.” It also noted that the video directly impacted the reputation of the Isha Foundation and its founder, stating that allegations of improper practices at the ashram harmed their public standing. However, Singh’s response highlights a procedural issue: he was only served with a copy of the defamation suit after the order had already been passed, denying him the chance to contest the allegations before the injunction was issued.

Justice Prasad also observed that Singh had made social media posts to promote the video before uploading it. The Court pointed out the need to balance free speech with the right to reputation. The order stated that “It is well settled that reputation is an integral part of the dignity of each individual and there is a need to balance between freedom of speech and freedom of expression vis-a-vis the right to reputation which has been considered as a part of the right to life under Article 21 of the Constitution of India. The video does have a direct impact on the reputation of the founder of the Plaintiff/Trust.”

The order may be viewed here.

Ex-parte orders and the right to be heard

Singh, in his response to the court order, pointed out that he was served a copy of the defamation suit only after the order had already been passed.

A statement on behalf Meera said, “…Hon’ble High Court has passed the ex parte (without giving an opportunity of hearing) ad-interim order directing that the said video be taken down. The order has been complied with. It is categorically stated that Shyam Meera Singh has been served with the copy of the suit, only after the said order was passed.”

“The said ex parte ad- interim order prima facie appears to be arbitrary and not in consonance with law. Therefore, Shyam Meera Singh is exploring all the legal remedies available before him,” it further said.

I came to know through the media that yesterday, the Hon’ble High Court passed an interim order to take down my video. I was not served with any notice nor provided with any information about this hearing. Further, I was not given an opportunity to present my side in the court. I…

— Shyam Meera Singh (@ShyamMeeraSingh) March 13, 2025

Statement on behalf of @ShyamMeeraSingh pic.twitter.com/9xtQtQrGza

— Mayank Yadav (@imayankyadav) March 12, 2025

This raises a crucial issue: the principle of audi alteram partem, which guarantees the right to be heard before an adverse order is issued. While courts can grant ex parte relief in exceptional cases where immediate harm is evident, it is difficult to see how this case justified such urgency. The Isha Foundation’s claim that the video was uploaded two days before Maha Shivratri to create a public controversy does not, in itself, establish the kind of imminent harm that would warrant bypassing Singh’s right to respond.

Defamation cases, particularly those involving public figures or organisations of significant influence, require careful judicial scrutiny. Courts have historically recognised that public figures are subject to higher levels of criticism and scrutiny. In this case, the Isha Foundation is a well-known institution with considerable public influence, making it all the more important for the judiciary to ensure that Singh’s right to critique its activities is not unduly curtailed.

Balancing reputation and free speech

The court’s rationale—that the video’s contents “directly impinge upon the reputation of the Plaintiff in the eyes of the general public”—raises broader concerns about how defamation laws are applied. Reputation is undoubtedly a significant right, but it must be weighed against the fundamental right to freedom of speech and expression, especially when the subject matter concerns public interest.

In India, the Supreme Court has repeatedly affirmed that the right to reputation, while important, cannot be used to shield public figures from criticism. In Subramanian Swamy v. Union of India (2016), the Court upheld criminal defamation but also emphasised that the right to reputation should not be invoked to silence fair criticism. The present case, however, suggests a broad interpretation of defamation that could have a chilling effect on investigative reporting and critical journalism.

Implications for digital journalism and public discourse

This is not the first instance of judicial intervention affecting Singh’s content. In January 2025, the Delhi High Court ordered him to remove a video about Dera Sacha Sauda chief Gurmeet Ram Rahim Singh, citing prima facie defamation. In that case, however, the court allowed Singh to upload a new video with a disclaimer stating that its contents were sourced from a trial court judgment and a book. The difference in approach between the two cases underscores the need for clear judicial guidelines on how courts handle online defamation claims.

The broader concern is the potential chilling effect on digital journalism. If courts continue to grant takedown orders before assessing the validity of defamation claims, independent journalists and content creators may become hesitant to investigate or report on powerful figures and institutions. Such orders, even if later reversed, can discourage critical reporting due to the financial and legal burdens involved.

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For a lay person the visual of a person getting arrested or being escorted to court, includes him being restrained by handcuffs. That is how arrests were and are portrayed in movies and pop culture for decades. However, the use of handcuffs, while once a common practice, has now been restricted by directives of the Indian Supreme Court.

The Supreme Court in the late 70s and 80s developed a strong definitive jurisprudence around the restricted use of handcuffs which culminated into directives that require agencies of law enforcement to ask the court’s permission before handcuffing a person.

Recently, the Delhi High Court rejected an application filed by Delhi Police seeking the court’s permission to retrain by handcuff two accused in Delhi violence conspiracy case: activist and former JNU student Dr. Umar Khalid, and human rights activist and founder member of a platform, United Against Hate, Khalid Saifi. The court observed that they are not gangsters and questioned the rationale behind making such a request while concluding that the request was devoid of merits before dismissing the application.

This takes us back to the many judgements of the Supreme Court that form the backbone of the jurisprudence which now limits the automatic use of hand cuffing as a practice. This jurisprudence was slow to evolve. The issue of handcuffing became a centrally debated issue in courts, viewed as it were as both an unnecessarily restrictive and a humiliating practice where an accused or an under trial is bound to hand cuffs and is restrained, is deprived of his dignity, despite the possibility of him being deemed innocent by the court after trial. The motive of using hand cuffs in the first place is to restrict movement of someone who is a flight risk. It’s not necessary that every under trial or accused would try to flee and thus the humiliation of being bound in hand cuffs is an unreasonable practice, which the courts agreed should be done away with unless in extreme circumstances, as a last resort.

Jurisprudence

In Sunil Batra v. Delhi Administration -AIR 1978 SC 1675, the Supreme Court held that Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal; liberty to such an extent as to be a negation of it would constitute deprivation. The court held that the minimum freedom of movement which even an under trial prisoner is entitled to under Article 19 of the Constitution, cannot be cut down cruelly by application of handcuffs or other hoops.

“The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save  in  a small category of cases. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.”

In Prem Shankar Shukla v. Delhi Administration -AIR 1980 SC 1535, the court examined the rationale behind fetters and held that prima facie handcuffing is inhuman and hence unreasonable as well as arbitrary in absence of fair procedure and objective monitoring.

“To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture”

The court observed that when there is no compulsive need to fetter a person’s limbs it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Thus, the court concluded that handcuffs must be the last refuge and not a routine regimen. The court also decried the practice of making classifications in hand cuffing prisoners i.e. higher class prisoners not to be fettered but an ordinary citizen would, is an arbitrary classification. The Punjab Police Manual in paragraphs 26.21A and 26.22 of Chapter XXVI was deemed to be arbitrary as it stated that every undertrial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed.

“It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to “a better class”, that he does not possess the basic dignity pertaining to every individual.”

The court held that the escorting officer must show reasons to the presiding judge on why the accused has been hand cuffed and get the judge’s approval. The court thus left the discretion on whether a prisoner should be hand cuffed or not upon the trial court in adherence to the observations made by the court in this judgement.

The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing the escape in the given circumstances.

The directions in both of these judgements were reiterated in Citizens For Democracy vs State Of Assam And Ors 1995 (3) SCR 943 by a bench of Justice Kuldip Singh and Justice N Venkatachaliah  and stricter directions were issued making the court’s stand on fetters extremely clear and absolutely binding.

In 1995, the Supreme Court considered a letter written by journalist Kuldip Nayar recounting the ordeal of detainees under the Terrorist and Disruptive Activities (Prevention) Act (TADA) in Guwahati at a hospital where they were handcuffed to their bed despite the room being barred and several policemen guarding the room. The government had given a justification that the detainees were hardcore activists of a banned organization and were accused of terrorist and disruptive activities, murder, extortion, and so on.

The court heavily quoted from both Sunil Batra and Prem Shukla judgements as both had elaborately dealt with the extreme situation when the police and jail authorities can resort to handcuffing of the prisoners inside and outside the jail. Yet, the court was compelled to issue more directions while observing, “The directions given by this Court are not being followed and are being treated as a pious declaration. We take judicial notice of the fact that the police and the jail authorities are even now using handcuffs and other fetters indiscriminately and without any justification. It has, therefore, become necessary to give binding directions and enforce the same meticulously.”

Thus, in the strongest words, the court declared thus,

• We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under-trial-while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back.
• The police and the jail authorities, on their own, shall have no authority to direct the hand- cuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
• Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate.
• Save in rare cases of concrete proof regarding proneness of the prisoner to violence,’his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.
• In all the cases where a person arrested by police, is produced before the Magistrate and remand – judicial or non-judicial – is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.
• When the police arrests a person in execution of a warrant of arrest obtained form a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.
• Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guide-lines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. 

Thus, the stand of the highest court in the country is clear on the use of fetters for restraining prisoners. It considers it to be a humiliating practice that is to be the last resort and only with the permission of the Magistrate and is not left up to the discretion of the police.

In March 2012, the Madurai bench of Madras High Court penalised two police constables to pay Rs. 5,000 for handcuffing a detainee without getting the Magistrate’s approval. The court instructed Magistrates to be vigilant and ensure that the directives of the Supreme Court are meticulously followed.

Legal provisions

Aside from what the Supreme Court has directed, prisons are also guided by the Prisons Act, 1894. Under the Act, which has been amended from time to time, the use of fetters is permitted if the Rules made by the respective State government allow it. The Act allows imposition of fetters under section 46(7) as a punishment to offences committed in prison mentioned under section 45. These include, inter alia, assault, disorderly behaviour, wilful damage to property, feigning illness and so on. Confining in fetters is one of the punishments prescribed, the others include cellular confinement, whipping, hard labour and so on. An exception to the punishment of confining in fetters is for female prisoners or civil prisoners, who cannot be imposed with fetters.

Under section 56, the Jail Superintendent may confine a prisoner in irons for the safe custody of prisoners, subject to Rules of the state government. Section 57 provides for confinement under sentence of transportation which has now become obsolete as it was a penalty of colonial times when convicts were sentenced to be transported to a faraway place, away from society, mostly to the colonies of imperial powers. Such punishments are no longer meted out by courts in India.

Under section 58, prisoners are protected from the whims of the jail authorities to be put in fetters. It states, “No prisoner shall be put in irons or under mechanical restraint by the Jailer of his own authority, except in case of urgent necessity, in which case notice thereof shall be forthwith given to the Superintendent”.

International Standards

The United Nations Standard Minimum Rules for the Treatment of Prisoners also known as the Nelson Mandela Rules were adopted by the United Nations General Assembly unanimously in 2015. Under Rule 47 (1), it states that the use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited. Sub rule 2 states that other instruments of restrain can be used if authorized by law as a precaution during transfer and by prison authorities if other methods of preventing the prisoner from injuring other prisoners or damaging property, fail.

Violation of fundamental rights

A person in custody, whether an under trial, a detainee and even a prisoner being a convict is already deprived of his liberty in accordance with existing laws. Such deprivation of liberty, and such deprivation only is permitted under Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

As explored herein above, neither the directives of the Supreme Court, nor the law permits the use of iron fetters or hand cuffs at the whims of the escorting officer or jail authorities and the permission of the court or intimation to the court with reasons recorded in writing is mandated. Any act of binding a person in police or judicial custody in contravention to these directives and laws amount to violation of right to life of the individual.

It further would amount to violation of right to equality under Article 14 as being hand cuffed or restrained in irons by not following legal provisions, would mean that the person is being treated differently from other prisoners or detainees thus violating his fundamental right of being treated at the same footing. Further, if the prisoner is handcuffed or fettered owing to his religion, race, caste, sex or place of birth, the same would violate his fundamental right against discrimination under Article 15 of the Constitution.

Unwarranted use of fetters or hand cuffs is thus, a violation of basic human rights as it is seen as a sadistic, capricious, despotic measure while humiliating the accused or convict in the eyes of others. It is a deprecatory practice that finds no space in a 21st century society where we aim to uphold human rights for all irrespective of their deeds, character and social standing.

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Dalit villagers from Punjab’s Sangrur district during a meeting on land rights. In 1964, Punjab reserved 33% of agricultural village common land for Dalits but implementation was tardy. Dalits are now asserting their rights despite facing violence.

Paramjit Kaur was talking about the 15.5 acres of common land she is jointly tending with 200 other Dalit families of the village, earning 2.5 quintal wheat and Rs 1,200 annual profit per household.

At her home in Bhattiwal Kalan village of Sangrur district in Punjab, a green awning in the courtyard partly blocked the harsh summer sun.
Around 50 metres away stood the family’s only reliable source of income–a cart full of cosmetics, small household items and plastic toys. Paramjit Kaur’s husband, Major Singh, takes this mobile shop to neighbouring villages, earning around Rs 500 from daily sales. Her son recently joined a private firm in Sangrur as laboratory assistant, relieving her of a job as a farm labourer.

The family are among the several thousand Dalits participating in a land rights movement sweeping across 70 villages of southern Punjab, upsetting the deeply-entrenched power equations between upper-caste farmers and scheduled caste (SC) labourers.

The campaign also aims to protect village commons from encroachment, ensure food security and uphold women’s safety. This is why the likes of Paramjit Kaur are at the forefront of this movement.

Dalit women of Niyamatpur village in Punjab’s Sangrur district who fought for rights to the reserved common land. A movement for Dalit land rights is challenging traditional power equations as it fights to ensure food security and uphold women’s safety.

Land ownership and rights

In Punjab, upper castes, mostly Jat Sikhs, dominate the farming landscape. Only 3.5% of private farm land belongs to Dalits who make up 32% of the population, according to the Agriculture Census of 2015-16. The national average is 8.6% of farm land for 16.6% of Dalits.
 

Source: Agriculture Census 2015-16

Punjab has the maximum proportion (5.28%) of big farmers owning more than 10 hectares of land among all non-mountainous states of India. The national average is 0.57%, according to the Agriculture Census 2015-16.

Land consolidation is expected to grow further as modern, capital-intensive farming in the state benefits big farmers due to the economies of scale.

In the past, the only major land rights movement in Punjab was the Muzara Movement (1930-53), in which tenant farmers demanded the abolition of biswedari–a system in which landlords owned vast swathes of land–in the princely state of Patiala and East Punjab States’ Union (PEPSU). The agitation had led to violence against the protesting tenant farmers.

The Muzara Movement, however, did not include Dalits.

In 1961, the state passed the Punjab Village Common Lands (Regulation) Act, reserving 33% of agricultural village common land for SCs, who could get an annual lease through bidding (rules under the statute were framed in 1964). The implementation, however, was indifferent.

“Upper-caste farmers continued to cultivate this land by sponsoring proxy candidates from the reserved category, depriving the community of this right,” said Sucha Singh Gill of the Centre for Research in Rural and Industrial Development (CRRID), Chandigarh. “Dalits were also not vocal enough to challenge this arrangement.”

“Even though we knew that the land is ours, we could not claim it,” said Avtar Singh, 65, a resident of Niyamatpur village of Sangrur district, who spent most of his life working on lands of big farmers. “Many of us were unlettered, unorganised and scared of going against the landlords who were our only source of income, food and fodder,” he told IndiaSpend.

Avtar Singh of Niyamatpur village in Sangrur district of Punjab with a cart full of green fodder from the village common land. Avtar Singh spent most of his life working on lands of big farmers. Today, he jointly tills village common land along with other landless.

In 2009, the Zameen Prapti Sangharsh Committee (ZPSC, or ‘land rights struggle committee’), an informal left-wing organisation, decided to mobilise Dalits through village-level committees. The ZPSC favours collective bidding and cultivation of the reserved common lands by all Dalits in a village.

“Educated youth and women were most willing to challenge the status quo,” said Gurmukh Singh, Sangrur district secretary of ZPSC. “They realised that owning a piece of land would bring prestige and cut through the dominance of the upper castes.”

This transformation in Dalit assertiveness is, however, a work of decades, said Ronki Ram, professor of political science at Panjab University, Chandigarh. Starting from before Independence, political consciousness emerged through the work of B R Ambedkar and Bahujan Samaj Party founder Kanshi Ram, born in Punjab’s Rupnagar district, and religious consolidation through the Ad Dharm (Ravidasia). More recently, the most concerted and powerful of these politico-religious sects where Dalits have congregated has been the Dera Sacha Sauda. Such deras have given Dalits the confidence to organise for a movement for land rights, Ronki Ram said.

“The Green Revolution has reduced interdependence of farmers and labourers due to increased farm mechanisation. Dalits started going to nearby towns for work,” said Gian Singh, former professor of economics at Punjabi University, Patiala. For those still involved in farm work, however, dependence persists. Around 68% of agricultural labourers get loans from big farmers, mostly at high interest rates, according to a 2017 study, ‘Indebtedness among farmers and agricultural labourers in rural Punjab’.

Blood on Land

Dalits are waging similar battles to lay claim to promised lands across India, as IndiaSpend reported on June 7, 2019. Across 13 Indian states, there were 31 conflicts involving 92,000 Dalits fighting to claim land, according to Land Conflict Watch, a network of researchers that maps and collects data on land conflicts in India.

Assertion of land rights often leads to grave violence in Punjab where popular culture glamourises gun toting to gain possession of land.

With the widespread use of proxies of Jat Sikh farmers, Dalits have disrupted auctions in several villages over the last 10 years, threatening proxy candidates and even stopping influential farmers from tilling the reserved lands.

Such acts have often resulted in violent repercussions as in Jhaloor village, where 72-year-old Gurdev Kaur was killed and several other protesters grievously injured in a brutal attack by a group of big farmers and their supporters on October 5, 2016. The attackers are currently facing trial in court.

Ballad Kalan, a village with the largest common lands in the region–121 acres as per land records reviewed by IndiaSpend–also endured a cycle of clashes. A few upper-caste farmers had been cultivating the common land for a long time. “In 2014, the proxies for landlords were again bidding for the reserved land at very high rates. We tried to stall the auction but police lathi-charged and threw us into waiting vans,” recalled 63-year-old Harmer Kaur, who braved many blows. “Though women were released later, 41 of our men were kept behind bars for 59 days on several charges.”

The women were not cowed. They uprooted paddy saplings from a plot of reserved land allotted to a proxy of one of the Jat farmers, forcing the state administration and village panchayat to re-auction the land within six months. This was the first time that Dalits won the lease as a collective in Ballad Kalan. The cycle of protests and arrests continued for a couple of years before the current peace, fragile as it is, was achieved.

“It was a stormy and painful journey but also the most rewarding. We would travel to surrounding villages to garner support and to also spread the movement,” said Manpreet Kaur, 48, a short, stout woman whose house became the war room of ZPSC during the struggle. “We got substantial support from many small farmers in our village. Only a few big landlords eyeing the common land were against us.”

The then District Development Panchayat Officer of Sangrur, Joginder Kumar, refused to comment on the incidents and told IndiaSpend that the matter had been resolved amicably during his tenure. Another senior officer requesting anonymity, however, termed ZPSC’s methods as coercive. “The open auctions held earlier were transparent but the leaders provoked people to protest against the system,” he told IndiaSpend. “Only a few have benefited from the new setup.”

Gill of CRRID disagreed: “The movement has definitely improved access to food and fodder for Dalit families besides enhancing self esteem of women.”

A prominent farm union leader in Punjab claimed that ZPSC has created enmity between farmers and farm workers. “The movement is led by former Naxalites who are still looking for some sort of revolution by dividing the society,” he said, “History shows that Dalits can’t till the land because they lack expertise.”

Such opinions are older than the Punjab Village Common Lands (Regulation) Act of 1961, and were voiced during debates in the state legislative assembly on reserving 33% common land for Dalits, said Jatinder Singh, assistant professor of political science at Punjabi University, Patiala.

“Many MLAs opposed the new law claiming that this will impact agricultural production in the state since Dalits are incapable of farming,” Singh told IndiaSpend. “This thinking flies in the face of the fact that they have been farm workers for generations. The only missing attribute was confidence because of past oppressions. Now, they have gained that as well.”

So shall they reap

In 2014, each Dalit family of Ballad Kallan contributed Rs 11,000 for the lease money, the fruits of which they are still enjoying. Today, every family earns on average Rs 30,000 annually, including five quintal wheat grains, from the land, villagers told IndiaSpend. Seven quintal of dry fodder is also allocated to every household. The rest of the money from the 121-acre community land is spent on paying the annual lease of Rs 21,500 per acre besides labour and other input costs.

Remembering the time she had to walk miles to fetch a load of green fodder from the fringes of Jat-owned farms, Harmer Kaur is thankful that the common land is now with the Dalits. “Sometimes the land owner would chase us or make indecent comments,” she recalled.

Sexual exploitation is one of the most critical threats for women labourers, most of whom are Dalits, found a recent study, ‘Socio Economic Conditions and Political Participation of Rural Women Labourers in Punjab’. “More than 70% respondents kept quiet when asked about their experiences related to sexual exploitation. The reality can be inferred from this,” said lead researcher Gian Singh, the former economics professor from Punjabi University. “The social stigma related to the issue forces many to keep mum.”

Things have changed since the movement, Harmer Kaur said: “Now, we don’t need to worry much about safety. We can work on our own community land for a daily wage and also buy green fodder from there.”

Future of land rights

From questioning power, the landless are now trying to gain political power. Thirty of the ZPSC members contested panchayat elections held in December 2018 as independent candidates. At Tolewal village, where they won the seat of sarpanch and two panchayat members, the movement is moving to the next level.

On June 6, 2019, the gram sabha of Tolewal passed a resolution to grant a 33-year lease for the reserved village common land to Dalit families. They disrupted subsequent attempts to hold bidding for the land, resulting in clashes on July 1 that left 15 people injured.

“The aim of 33-year lease is to avoid the annual cycle of protests and uncertainty which takes a toll on our children,” said Harwant Kaur, one of the women leaders of the village. “The long-term lease will also help protect the land from encroachments.”

This 33-year lease has been controversial.

“Long-term lease of common land is allowed only for development projects by government or private firms,” said Malerkotla Block Development Officer Amandeep Kaur, adding that a 33-year lease could not be granted for farming.

“The Dalits aligned to ZPSC are seeking long-term lease on low rate which means village panchayat will suffer loss in revenue,” former sarpanch Bir Singh told IndiaSpend. “When there is no provision to grant 33-year lease, how can this be done? When refused, they resort to violence.”

In response, Gurmukh Singh, district secretary of ZPSC, asked: “If cow sheds can be given on long-term lease, I don’t see a reason why Dalits can’t get the land reserved for them for 33 years. Are they worse than cows?”

The Dalits of Balad Kalan are also aiming for a 33-year lease, fearing that a proposed industrial park in the region would subsume their common lands. “The proposal includes 40 hectares of village common land but it requires approval of the panchayat that we would never let happen,” said Manpreet Kaur.

The movement has greater goals to achieve, said Gurmukh Singh of ZPSC. “The possession of common land has instilled confidence among Dalits but it can’t be their main source of livelihood,” he said. “The real change will come with proper implementation of land ceiling law and redistribution of private land. Only then the landless will gain equal status.”

Under the Punjab Land Reforms Act, 1972, a family unit (husband, wife and children) cannot own more than 17.5 acres of fertile agricultural land that has access to good irrigation facilities. However, a family can hold up to 32 acres if the land is barren and without irrigation facilities.
For the likes of Paramjit Kaur, however, the fight is for dignity, not profit.

(Moudgil is an independent journalist based in Chandigarh.)

Reporting for this story was supported by the NCore Impact Journalism Grant 2019.

Courtesy: India Spend

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Image Courtesy: opindia.com

First, there were the ‘progressive’ Sanghis, who attacked her and wrote as if she has turned ‘radical Islamist’. Second came the ‘secular’ ‘liberals’ like BarkhaDutt and others, who felt that Zaira’saction would hurt the prospects of those Muslim girls who were aspiring to do ‘something’. Then, there were Muslim friends, who felt that she had done the right thing and lastly, there were the ‘secular’ ‘liberal’ Muslims, who felt that Ziara’s act has hurt the community which is under tremendous pressure from the right wing Hindus.

Let us start by understanding that this is a very personal decision, and others have no right to interfere in it. Why should it matter to us whether an individual does or does not find salvation in his or her religion?Why should Zaira’s becoming ‘religious’ hurt the prospects of other Muslim girls? On the same note, did the prospectus of Muslim women growmanifoldwith the entry of WaheedaRahman, Mumtaz or Zeenat Aman, intofilms?

The hypocrisy of people like BarkhaDutt is that none of them have ever written about why young Hindu girls are now becoming Sadhvisand then delivering hateful speeches. And will the people,who go to listen to these young Sadhvis like Radhe Ma, aspire to become like them?Or do they go there out of pure superstition, or due to other business interests? How many of these ‘secular’ ‘liberals’ have writtenabout a 12 year old Jain girl Khushi, who got 97% marks in her sixth class but decided to become a monk, in Surat, earlier in May this year? Why has there been no hue and cry over this absolute violation of a child’s rights?This is not an isolated incident. Each year, there are many such cases in the Jain community but we never call Jains one of the most conservative communities or say that such traditions are absolutely uncalled for in the modern world. If we go by the narrative in the media, Khushi Shah was being termed as a wonder girl, who has left all the ‘good things’ of life.

Her father felt proud of her. How many TV channels ran the show and took on the leaders of Jain community for such practices?Khushi was only 12 years old, clearly a minor, and the National Child Rights Commission should have investigated the matter.

Zaira is anadult, unlike Khushi, but our media, which is purely a commercial or money-minded media in today’s time, has only one agenda, which is to construct stories about Muslims. If there is none, then they will create one and even debate on it to put continuous pressure on the community and portray it as a purely medieval community without any sense of modernity.

The problem is not merely the right wing Sanghi trolls but also the self-proclaimed guardians of Indian culture. Recently, a West Bengal TMC leader and MP, Ms NusratJahan was trolled. Nusratis married to a Jain business man and was seen in traditional bridal attire with her partner. There were two kinds of reactions, particularly related to her attire. Some Hindus said that there was a Fatwa against her for wearing sindoor and mangalsutra after the marriage. On the other hand, the ‘seculars’ were defending her, calling her ‘progressive’, as she had crossed ‘religious boundaries’ and was an example that Muslims too could ‘respect’ and ‘celebrate’ Hindu culture.

The problem lies not in Zaira’s or Nusrat’s personal choices but in our attempt to ‘define’ them according to our convenience. Nusrat and Zaira have made their choices. Just by going back to Islam,Zaira does not become regressive, in the very same way that, just wearing sindoor and mangalsutra does not make Nusrat a champion of secularism or Indian culture. The fact of the matter is that sindoor and mangalsutra are not symbols of women’s empowerment but of repression, of a regressive anti-woman brahmanical culture.

It is time for all of us to get out of our tendency to ‘define’ others. Let people enjoy their choices, whether religious or non-religious. India, ultimately, will have to work on constitutional morality as only that would ensure rights for all as well as unity and integrity of our nation.

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A rickshaw-puller reportedly died of hunger at his house in Jharia lastFriday evening. His wife claimed that he had not eaten anything for the past two days. However the district administration rubbished the allegation arguing that 45-year-old Baijnath Ravidas, a resident of Bhalgora Tarabank in the coal mines rich district, was suffering from a disease.

It was a fact finding team of the Communist Party of India (Marxist) that visited the village on October 20 and met the family members of the deceased; who is survived by three sons — Ravi (20), Suraj (14), Neeraj (10) — and two daughters Suman (16) and Sulekha (8). When the team (comprising Kashinath Chatterjee, Gyan Ranjan Sinha, former minister Dr Saba Ahmed, CPM District secretary Suresh Gupta Ramakrishnan and others) reached the house of the deceased, officials of the district and block administrations in “20 vehicles were present at the spot along with 40 policemen”. It was after the team “interacted with the villagers” and concluded that that his death occurred due to hunger and disease both”. “The situation of others in the family is also quite bad,” said the fact finding team in its reports. “He (the deceased) could not have his ration card made even after multiple attempts,” alleges the report.

The whole area is made of huts and most people here work in the unorganised sector. “Seventy percent of the families here do not have ration card. Many of them had applied for ration card multiple times a year back but did not get it. The families who have ration cards, got them made through agents who charged commission for doing the needful,” alleged the report. According to the fact finding team, this area has large number of Dalit and extremely poor families. Ration through PDS will be lifeline for these families. “During socio-economic & caste census, many families were omitted from PDS. Many deserving families have been deprived of food in the name of Aadhaar or ration card,” alleged the report.

The team has demanded that all the people in the area should be provided ration. They further demanded the government to come out with a white paper on how many people have been deprived of ration in the name of Aadhar and also specify what procedures are adopted for this; and what notifications has been given on this.

Action has been demanded against the officials who were responsible. They expressed hope that all orders of the Supreme Court regarding right to food, and hunger deaths will be followed
“Similar mishappenings have occurred in Garaw, Deoghar and Dhanbad,” alleged the report.

Local units of BGVS are involved in the agitation. “Gyan Vigyan Samithi Jharkhand, along with other organizations will continue to fight for justice on the issue,” said the report.
Last month, an 11-year-old girl died in Jharkhand’s Simdega district because of starvation, months after her family’s ration card was cancelled because it was not linked to their Aadhaar number. With no mid-day meals available in school during her Durga Puja holidays, Santoshi Kumari had gone with barely any food for nearly eight days before she died

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A high-level meeting of India’s top rights  group, mines, minerals and People (mm&P), has decided to represent to President Pranab Kumar Mukherjee and Prime Minister Narendra Modi to implement the concept of "intergenerational equity” to make sure that the next generations are equal shareholders of the natural resources.

This unique concept, which is directed against corporate houses and other business interests seeking to mine away the natural wealth, has been coined by Goa Foundation, a Goa-based voluntary organization. The concept states, those who depend on natural resources alone are their rightful owners.

Participated by 236 activists, experts, grassroots workers and bureaucrats, the meeting at Kotagiri, Nilgiri Hills, Tamil Nadu, saw Rahul Basu of the Goa Foundation state that society and the government “must not forget that they are just trustees of natural resources and not their owners.”

Referring to what he called “aggressive mining activities and profit mongering crony capitalists' hunger for profit out of natural resources”, Basu stressed on the "public trust" doctrine and the "intergenerational equity" concept – which, he claimed, has been recognized by the Supreme Court as part of the Right to Life.

"The concept of "intergenerational equity would make sure that the next generations are also the equal shareholder of the natural resources”, he said, adding, "As a result of the recommendation from the Goa Foundation, the Supreme Court of India directed that the creation of the Goa Iron Ore Permanent Fund meant to be utilized for the future generations as equal shareholders of the natural resources.”

Following his intervention at the mm&P, the meeting passed a unanimous resolution on "intergenerational equity based on the understanding on public trust doctrine, calling for declaring minerals as shared inheritance.”

Addressed to the President and the Prime Minister of India, participants from all the 20 states signed the resolution, demanding for "intergenerational equity" policy in each and every mining area, and ensuring that it is implemented.

Participated, among others, by former deputy director, Geological Survey of India (GSI), Krishna Murthy, waterman of Rajasthan Rajendra Singh, and Gujarat’s veteran Gandhian tribal leader Ashok Choudhury, the meeting saw the participants regret that the concept of community rights over natural resources was “dying down.”

Krishna Murthy, former deputy-director of GSI expressed his concern over the impact of coal mining on environment and wildlife, saying, the growing demand for electricity for commercial purpose has led to corporate greed for more coal-based power plants, and this is “uprooting millions of lives and livelihoods.”

Speaking the way natural resources are being fleeced, Singh said, while the poor are forced to migrate due to the scarcity of water, private companies are granted permission to extract as much water as they can for their commercial use.

Choudhury regretted that both the Central and state governments are not respecting the rule of law and implementing the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA, 1996) in the tribal areas to empower tribals to have a complete say over natural resources.Speaking on the occasion, environmental activist CR Bijoy reminded the participants that only five out 17 states with sizable tribal population have so far framed PESA rules, while the rest are hesitant. “Most states are in fact displacing tribals from their lands", he added.
 

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It doesn’t happen often but doesn’t it feel wonderful when occasionally your bank account gets credited by the government? Some of us will have enjoyed this sensation with our LPG subsidies (now withdrawn for many), or the occasional income tax refund.
 

The post How Every Goan Can Get Rs 9,000 Each Year appeared first on SabrangIndia.

 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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संवैधानिक विरोधभास

इस संशोधन से पहले १४ साल तक के बच्चों से केवल खतनाक व्यवसायों में मजदूरी कराने पर प्रतिबन्ध था. खतरनाक और गैर खतरनाक व्यवसायों का ये फर्क काफी विवादित था. बाल अधिकार संगठनो का मानना है कि किसी भी तरह की मजदूरी बच्चों के विकास में बाधक है इसलिए हर व्यवसाय बच्चों के लिए खतरनाक और हानिकारक है . पर भारत सरकार की सोच कुछ अलग थी और इसी सोच ने एक सवंधानिक संकट खड़ा कर दिया था . एक तरफ तो शिक्षा के मौलिक अधिकार के अनुसार १४ साल से कम के सभी बच्चों को शिक्षा का मौलिक अधिकार है और हर बच्चे को स्कूल में होना चाहिए. दूसरी बाल श्रम से सम्बंधित पूर्व कानून इसी आयु वर्ग के बच्चों से कुछ व्यवसायों में काम कराने की इजाज़त देता था . अब यह कैसे संभव है कि बच्चा स्कूल में भी दाखिल हो और काम पर भी जाये ? इसी तरह के अंतरद्वंद जे जे एक्ट और बाल श्रम कानून में भी थे. इस संशोधन में  इस तरह के कुछ विरोधाभासों को ख़त्म करने की कोशिश की गयी है पर कई अभी भी बाकी है.

आर्थिक प्रगति और बाल श्रम

यह संशोधन भारत को कुछ अन्य शर्मनाक स्थितियों से  बचाने में भी मदद करेगा. पिछले कई सालो से भारत एक तरफ तो अपनी आर्थिक प्रगति और ८% विकास दर का ढिंढोरा पीटता आ रहा है और दूसरी तरफ अंतर्राष्ट्रीय मंचो पर यह रोना रो रहा है कि हम एक गरीब देश है. हमारे पास बाल श्रम ख़त्म करने के लिए प्रयाप्त साधन नहीं है और हमारी अर्थव्यवस्था बच्चों की मजदूरी के बिना नहीं चल सकती. आज तक भारत ने  संयुक्त राष्ट्र बाल अधिकार समझोते की धारा ३२ पर सहमती नहीं दी है,   जिसमे वादा किया गया है कि सभी देश बाल मजदूरी को जड़ से ख़त्म करेंगे. अपने देश के बच्चों के प्रति भारत जैसे अग्रणी राष्ट्र का यह रवैया शर्मनाक था. इस सशोधन के बाद हम कहने को तो कह ही सकते हैं कि हम  बच्चों के अधिकारों को पूरा करने के लिए प्रतिबद्ध हैं.

अपवाद

इस अधिनियम में संशोधन के बाद १४ वर्ष से कम के बच्चों से किसी भी व्यवसाय में मजदूरी करवाने पर पूरी तरह प्रतिबन्ध लगाने का दावा किया जा रहा है. बहुत अच्छी बात है कि बच्चो से कोई काम नहीं कराया जाएगा. परन्तु इसमें एक पेंच है. इसमें एक अपवाद रखा गया है कि अगर वह  अपने ही घर पर काम करती या करता  है और वह उसके स्कूल जाने में बाधक नहीं बनता तो इसकी अनुमति है. प्रश्न यह उठता है कि क्या ऐसा संभव है. अगर बच्चा घर पर काम करेगी/गा और काम स्कूल में बाधक नहीं बनेगा. क्या यह व्यवाहरिक है? बच्चों की घर पर काम में व्यस्तता उनके स्कूल के छुटने/ड्राप आउट  का एक सबसे बड़ा कारण है.
कानून बनाने वालो का कहना है कि घर में बाल क्ष्रम की इज़ाज़त  तो अपवाद है और इसमें  मात्र छोटी सी संख्या आती है. वास्तविकता कुछ और है. वैश्वीकरण के इस दौर में अधिकतर उत्पादन अनौपचारिक क्षेत्र में होता है. इस अनौपचारिक  क्षेत्र में होने वाले उत्पादन  का एक बड़ा भाग घरो में होने वाले काम से होता है. और आने वाले समय में इसके अनुपात के घटने की कोई संभावना नहीं है बल्कि उदारवाद के इस दौर में घरो पर होने वालो कामो का प्रतिशत बढ़ने ही वाला है. सच्चाई तो यह है कि यह अपवाद एक बड़ी संख्या में बाल क्ष्रम को कानूनी मान्यता है.

बाल श्रम बनाम बाल विकास

कानून बनाने वालों की बात मान भी लें कि केवल स्कूल के बाद बच्चों को काम करने की इजाज़त होगी तो इसका आशय क्या है. बच्चा दिन के उपलब्ध सोलह घंटो में से आठ घंटे स्कूल जायेगा, दो तीन घंटे खाने और दिन के आवश्यक कामो में लगाएगा /लगाएगी और चार घंटे काम में लगाएगा/गी. ऐसे में क्या हम उस पर 8 घंटे के स्कूल और चार घंटे के काम  का दुगना बोझ नहीं डाल रहे. ऐसे में खेलने , स्कूल के काम और आराम का वक्त कहाँ है. क्या बच्चे के विकास के लिए खेलने और आराम करने की जरूरत नहीं है?

जातिप्रथा का सुदृढ़ीकरण

कानून बनाने वालो का इस अपवाद के पीछे एक  औचित्य यह है कि इससे उसे अपने पारंपरिक कामों को सीखने का मौका मिलेगा. यानी कुम्हार के बच्चे को केवल कुम्हार का काम सीखने का अवसर मिलेगा और लौहार के बच्चे को केवल लौहार का. क्या इसमें डॉक्टर या वकील के बच्चे के लिए कुम्हार या लौहार का काम सीखने  की सम्भावनाये है? वह तो डॉक्टर या वकील ही बनेगा/गी.

क्या यह हमारी स्थापित जाती व्यवस्था को बढाने का औजार नहीं है. क्या इससे समाज में व्याप्त असमानताओ को बढ़ावा नहीं मिलेगा?

खतरनाक व्यवसायों की सूची

नए कानून में १४ से १८ वर्ष तक के बच्चों से खतरनाक व्यवसायों में काम कराने पर रोक लगा दी गयी है. हालाँकि बाल अधिकार कार्यकर्ताओं एवं  संगठनो का मानना है कि १८ से कम हर व्यक्ति बच्चा है 
और इस तरह का प्रावधान बाल अधिकार विरोधी है. कुछ समय के लिए अगर यह तर्क को किनारे भी रख दें तो प्रश्न यह उठता है कि पूर्व कानून में खतरनाक व्यवसायों की जो व्यापक  सूची थी उसे नए कानून में क्यों हटा दिया गया. यह सूची पिछले तीन दशकों के जद्दोजहद के बाद बनी थी और इसे नए कानून में भी कायम रहना चाहिए.

कानून लागू करने में चुनौतियाँ

हम सभी जानते है कि कानून होना एक बात है और उसका क्रियान्वन दूसरी बात. माना कि बाल मजदूरी के खिलाफ पुराने कानून में कुछ खामियां थी पर ज्यादा समस्या उसके लागू करने में नज़र आती है. ये कानून सन १९८६ से लागू हुआ था और लगभग पिछले तीस सालों में पुरे देश में इसके अंतर्गत चालीस हज़ार केस दर्ज किये गए. इनमे से मात्र ४७०० को सजा हो सकी और उसमे भी अधिकतर सजाएँ १०० या २०० रूपये के मामूली जुर्माने की थी. बाल मजदूरी के सरकारी गैर सरकारी आंकड़े लाखों करोडो में हैं और उसके मुकाबले में कानून तोड़ने वालों को मिलने वाली सजा ना के बराबर रही है. कानून के क्रियान्वन का यही हाल रहा तो नया कानून भी बस किताबों में ही रह जायेगा.

क्षमतावर्धन और उन्मुखीकरण

कानून के पालन के लिए कानून को लागू करने वाली संस्थाओं सशक्त करना, उनका क्षमतावर्धन और उन्मुखीकरण बहुत जरूरी है. उदहारण के तौर पर कुछ समय पहले दिल्ली जैसे बड़े शहर में मात्र २२ लेबर इंस्पेक्टर थे  जिन पर बालमजदूरी के साथ साथ श्रम से सम्बंधित सात अन्य कानूनों के क्रियान्वन की जिम्मेदारी थी. स्थिति अगर ऐसी ही रही तो नए कानून के आने के बाद भी हालात में शायद ही कोई बदलाव आये. श्रम विभाग के साथ साथ पुलिस का उन्मुखीकरण और उन्हें सवेंदनशील बनाना भी जरूरी है ताकि बच्चों  को बालश्रम से छूटने के बाद थानों और न्यायालयों में फिर से पीड़ित न होना पड़े. अक्सर बाल मजदूरों को मुक्त कराने के अभियान कुछ इस तरह चलाये जाते हैं कि अपराधी बच्चों से काम कराने वाले न होकर खुद बच्चे ही हों.

समेकित बाल सरंक्षण कार्यक्रम ( ICPS) के अंतर्गत हर जिले मे  बाल सुरक्षा समितियां और हर थाने में किशोर कल्याण पदाधिकारी की नियुक्ति अनिवार्य है पर देश के अधिकतर जिलों और थानों में या तो ये समितियां बनी ही नहीं है या उनका अस्तित्व सिर्फ कागजों तक ही सीमित है. जिले स्तर पर बाल कल्याण समितियां और राज्य स्तर पर बाल सरंक्षण आयोगों कि भी इस कानून को लागू करने के और बच्चों की सुरक्षा सुनिश्चित करने में एक अहम् भूमिका है. पर देश के कई जिलों और राज्यों में ये संस्थाएं गठित ही नहीं की गयी हैं. आज भी देश के चौदह राज्यों में बाल सुरक्षा आयोग का गठन नहीं हुआ है ओर लगभग २५० जिलों में बाल कल्याण समिति का गठन नहीं हुआ है. बहुत से जिलो में बाल कल्याण समितियां ओर जे जे बोर्ड केवल कागजों पर है ओर ऐसे लोगों से भरी पड़ी है जिन्हें बाल अधिकारों से कोई वास्ता नहीं है. ऐसी ख़बरें अक्सर आती है कि जे जे बोर्ड, बाल विकास समिति या किसी सरकारी अफसर  के घर पर बाल मजदूर रखने और उसके साथ यौन शोषण की घटना सामने आई है. है. आये दिन सरकारी मुलाज़िमों और पढ़े लिखे तबके के लोगों के यहाँ बाल मजदूरी और उनके साथ होने वाले दुराचारों की घटनाएँ सामने आती रहती है . अगर बाल मजदूरी पर बने इस नए कानून को सही मायनों में लागू करना है तो बाल सुरक्षा के लिए बने संवेधानिक संस्थाओं को कारगर ढंग से काम करना होगा.

समस्या का सही सही आकलन

इस कानून को प्रभावी बनाने में दूसरी बड़ी चुनौती इस समस्या के आकार को ठीक ठीक नापने की है अर्थात ये पता लगाने की है कि आखिर बाल मजदूरों की संख्या कितनी है. जब तक समस्या के आकार  का पता नहीं होगा उसके हल के लिए योजना बनाना संभव नहीं है . २००१ की जनगणना के अनुसार बाल  मजदूरों की संख्या १२ करोड़ ६० लाख (केवल प्रतिबंधित व्यवसायों में) थी जो २०११ की जनगणना में भी लगभग उतनी ही है. यह बात सर्वविदित है कि लाखों ऐसे बच्चे है जिनका नाम स्कूल में दर्ज़ है (और वह बाल श्रमिकों की गणना में नहीं आते ) पर वो स्कूल न जाकर विभिन्न किस्म के व्यवसायों में लगे है . कृषि क्षेत्र में बड़ी संख्या में बच्चे लगे है पर उनकी कोई गिनती नहीं है. सरकारी आंकडो को गैर सरकारी आंकड़े लगातार चुनौती देते रहेते है और उनके हिसाब से बाल मजदूरों की संख्या तीन से छह करोड़ तक की है. यह ज़रूरी है कि सरकार बाल मजदूरों की संख्या का सही सही पता लगाये और उसके अनुसार योजना बनाये. बाल  मजदूरी पुनर्वास के लिए एन.सी.एल.पी (NCLP) जैसे कुछ आधे अधूरे   कार्यक्रम चलाये जा रहे हैं वह भी बहुत छोटे स्तर पर. अगर सरकारी आंकड़ो को भी माने तो बाल मजदूरों की संख्या १.२ करोड़ है और उनके पुनर्वास के लिए चल रहा कार्यक्रम मात्र छह लाख बच्चों के लिए है. ज़ाहिर है इस तरह के कार्यक्रमों के बूते इस समस्या को दूर नहीं किया जा सकता.

राजनैतिक इच्छाशक्ति और संसाधन

बाल श्रम को जड़ से दूर करने के लिए जरूरी है इनके पुनर्वास के लिए पर्याप्त कार्यक्रम हो और हर बच्चे के लिए गुणवत्ता पूर्ण शिक्षा के अवसर उपलब्ध हो ताकि उसे बाल मजदूर बनने से रोका जा सके. साथ ही परिवार के बड़े सदस्यों के लिए उचित मजदूरी वाले रोज़गार उपलब्ध हो जिससे वो अपने परिवार  के भरण पोषण की जिम्मेदारी निभा सके और परिवार चलाने के लिए बच्चों की मजदूरी पर निर्भर न रहे. इसके लिए जरूरी है कि एक तरफ तो कानून को लागू करने के लिए आवश्यक आधारभूत ढांचा उपलब्ध हो और दूसरी तरफ शिक्षा और रोज़गार के प्रयाप्त अवसर मौजूद हो. इन दोनों ही के लिए जरूरी है की सरकार बजट में प्रयाप्त प्रावधान करे. कानून में बदलाव करके सरकार ने बाल मजदूरी को खत्म करने की मंशा तो दिखाई है पर अब और जरूरी है कि सरकार इस कानून को लागू करने के लिए राजनैतिक इच्छाशक्ति दिखाए और बच्चों के प्रति अपनी जिम्मेदारी को पूरा करे.   

(लेखक डेवलेपमेंट प्रोफेश्नल के रूप में कार्यरत हैं और पिछले कई सालों से बाल अधिकारों के क्षेत्र में काम कर रहे हैं।)

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