The Supreme Court has observed in its March 2 judgement that the exception cannot become the rule while asserting that Election Commissioners ought to complete their 6 year term as provided for in the law. The bench of Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar has held that the appointments of Election Commissioners have been reduced to becoming exceptions and this undermines the independence of the Commission. “The policy of the law is being defeated,” said the court.

The bench was referring to section 4 of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 which states as follows:

4. Term of office.—The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office:

[Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty-five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age:] (only relevant portion mentioned)

The main part of the section states that the CEC or EC must hold office for 6 years and it is only the proviso that states that if the Commissioner attains age of 65 before that, then his office shall be vacated. This is a proviso or an exception, that has now become a rule.

During the hearing on November 22, Justice Joseph questioned the dubious manner in which Election Commissioners have been appointed since 2007, so that they do not get a full term of 6 years as stipulated under the Act. The court observed that appointments since 2007 were made in a manner that Commissioners get a term of 2 years or less.

When the hasty appointment of the Election Commissioner, Arun Goel, was done, Senior counsel Prashant Bhushan raised an objection that when the petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the respondent-Union to make the appointment. The court thus sought files relating to the appointment.

In the note presented by the Union government, it stated that the vacancy arose on May 15, 2022. Approval for appointment was sought on November 18, 2022 and on the same day four names were accessed which were on the top of the list of databases of serving/retired IAS officers serving/served as Secretary to government of India. Two of them had already retired and Goel was to retire in December 2022 and had taken voluntary retirement already and was the youngest amongst the four. Considering his experience, age, profile and suitability, his name was suggested to the Prime Minister.

The court noted that the application for voluntary retirement was made by Goel on November 18, 2022 (the court hearing was on November 17, 2022) itself which was approved on the same day and the wait period of 3 months was also waived off! The court also noted that November 18, 2022 was a Friday and the court was to hear the matter on November 22.

Questioning this entire process, the court said,

“Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him.” (Para 187)

Summing up the entire process that was carried out in one day, the court observed,

“all the procedures commencing with the proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned Officers, the recommendation of the Prime Minister, the acceptance of the application of the appointee seeking voluntary retirement, waiving the three months period and the appointment by the President under Article 324(2), which came to be notified, took place in a single day.” (Para 188)

The court observed that the government was aware of the pending petition. “The appointment has been made apparently on the basis that there was no hindrance to the making of the appointment,” the court noted (Para 187)

While the court noted that it had not passed any order restraining such appointment but the government was aware that such a petition seeking direction to make appointment was pending before the court.

The court pointed out section 4 of the Act which provides that the term of Commissioners should be 6 years. The Attorney General responded that since the time, when the Election Commission became a multi-Member team, a convention has grown up of making appointments of persons, initially as Election Commissioners and the senior-most Election Commissioner, unless considered unfit, is appointed as the Chief Election Commissioner. He further said that the term of 6 years is aggregated.

When the court questioned why the government did not try to ascertain if there were officers who could be appointed who would be able to complete the term of 6 years, the AG submitted that there was a dearth of such officers. Bhushan, appearing for the petitioner, argued that there are 160 Officers, who belonged to the 1985 Batch and some of them are younger than Arun Goel.

Looking at how the database was drawn up and top contenders looked at, the court said,

“If the drawing up of the panel itself results in a fete accompli, then, the whole exercise would be reduced to a foregone conclusion as to who would be finally appointed. What we find about the method involved is, even proceeding on the basis that the Government has the right to confine the appointee to Civil Servants, that it is in clear breach of the contemplated mandate that be it as an Election Commissioner or Chief Election Commissioner, the appointee should have a period of six years.” (Para 195)

The court held that the law envisaged a 6 years term for the Commissioners so that “it would enable the Officer to have enough time to gear himself to the needs of the Office and to be able to assert his independence.” (Para 195)

The court said that an assured term would allow the officer to bring about reforms and the inspiration to bring out his best.

“Any tendency towards placating the powers that be, would wax as also the power and the will to assert his independence may wane, bearing in mind, the short tenure. This apparently is the underlying philosophy of the law made by Parliament, assuring, a term of six years” (Para 195)

Responding to the contention of the Union government that the term is aggregated since the Election Commissioner is appointed as Chief Election Commissioner basis seniority, the court held that

“The term of six years is separately assured to both the Election Commissioner and the Chief Election Commissioner. In other words, the object of the law and its command would stand defeated and the practice lends strength to the complaint of the petitioners.” (Para 195)

The court clarified that these observations did not reflect individualised assessment of the appointee (Arun Goel) as he has excellent academic qualifications.

The court, however, noted that

“academic excellence which members of the civil service may possess cannot be a substitute for values such as independence and freedom from bias from political affiliation” (Para 195)

The court, for this part, concluded:

“Parliament enshrined a term of six years separately for the Chief Election Commissioner and the Election Commissioner. This is the Rule, it is found in Section 4(1). A proviso cannot arrogate itself to the status of the main provision. The exception cannot become the Rule. Yet, this is what the appointments have been reduced to. It undermines the independence of the Election Commission. The policy of the law is defeated.” (Para 195)

The complete judgement may be read here:

Related:

Election Commissioner to be appointed on advise of PM, leader of opposition and CJI: SC

How Independent is India’s Election Commission?

Appointment of Election Commissioner under SC scrutiny: The story so far

Christians & Muslims excluded from voters list in Karnataka, HC approached

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“At the outset, it is required to be noted that as such the State ought not to have filed the present Special Leave Petition. Despite the fact that the issue with respect to entitlement of pension by the respondent was concluded up to this Court, still thereafter, the State had an audacity to contend that the respondent was not entitled to pension”, a bench comprising Justices MR Shah and Krishna Murari held.

Despite the fact that the SC had, in an earlier round of litigation, the Supreme Court had confirmed the pensionary entitlement of the employee. However, when the stage for disbursing the arrears came, the state took up a plea that the employee was not entitled to pension. The Madras High Court, by its judgment delivered in February 2022, rejected the State’s contention, observing that the Department “has misappropriated the money of the employee by depriving him of his pension”.The issue related to the pensionary entitlement of an employee.

“The act of the appellants in not granting arrears of pension from 01.04.2009 is arbitrary. Once the entitlement of pension of the employee is decided, the appellants are bound to pay the same”, the High Court’s division bench had observed. Challenging this, the State approached the Supreme Court, which took a critical view of the State’s conduct.

“Once the issue was concluded up to this court that the respondent is entitled to pension, thereafter, it was not open for the State to again contend post 2009 when the arrears were to be paid that the respondent is not entitled to pension. The aforesaid stand is just in teeth of order passed by this Court. In that view of the matter, there is no substance in the present Special Leave Petition, the same deserves to be dismissed and is accordingly dismissed with an exemplary cost, which is quantified at Rs. 5,00,000/-“, the Supreme Court observed.

The cost of Rs. 5,00,000/-, to be deposited by the State within a period of four weeks from September 19 with the Registry of the Supreme Court Court and on such deposit, the same be transferred to the Mediation and Conciliation Project Committee (MCPC), Supreme Court of India.

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Filed on behalf of dam oustees, the petition was heard by the Supreme Court bench comprising judges NV Ramanna and Ajay Rastogi. The next nearing has been fixed for September 26. Senior advocate Sanjay Parikh told the court that the arbitrary manner in which the dam was allowed to be filled up contradicts the Narmada Water Dispute Tribunal (NWDT) award, as also Supreme Court orders of 2000 and 2005.

Pointing out that the central agency Narmada Control Authority (NCA) allowed the Gujarat authorities to fill up the dam up to FRL, Parikh asserted, little has been done to rehabilitate the oustees, adding NCA even changed the timesheet in order to fill up the dam by September 17. As a result, thousands of families’ homes, fields, religious places, innumerable trees, pastures, shops, schools, government buildings etc. have been drowned. Advocate Abhimanyu Shrestha assisted in the petition.

Courtesy: Counter View

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Image Courtesy: The Hindu

Petitions to examine the Constitutional validity of the scrapping of Article 370:

A batch of petitions were filed challenging the Presidential Order of August 5. The first Kashmiri to file a petition was advocate Shakir Shabir who claims that the Presidential Order is unconstitutional and void ab initio. Another petition was moved by Lok Sabha MPs Mohammed Akbar Lone and Hasnain Masoodi of the National Conference.

Retired military officers and bureaucrats also moved Supreme Court. Petitioners in this case include Radha Kumar (a former member of the Home Ministry’s Group of Interlocutors in J&K), Air Vice Marshal (Retd) Kapil Kak, former IAS officer HH Tyabji, Gopal Pillai (a former Union Home Secretary), and Amitabha Pande (former Secretary of the Union Government’s Inter-State Council) among others.

Detained former IAS officer Shah Faesal, activist Shehla Rashid and five other also moved SC challenging the validity of the Jammu and Kashmir Reorganisation Act, 2019. They further said that the order was unconstitutional for being passed in disregard of the consent of the people. The petition may be read here.

Supreme Court lawyer Soayib Qureshi and advocate ML Sharma have also filed petitions.

The SC has now ordered that a Constitution Bench of five judges hears these petitions. Hearing will begin in the first week of October. The court has also issued notice to the Central government.

Petition against communication clampdown:

Kashmir Times Executive Editor Anuradha Bhasin sought immediate restoration of communication lines and relaxation of all restrictions on the movement of media-persons in Kashmir and some districts of Jammu. The petition may be read here. The SC has now issued notice to the Center and the J&K administration and sought a reply within seven days.

Activist Tehseen Poonawala also moved SC alleging violation of Constitutional rights in wake of the communication blackout in the region. He also called the arrests and detention of local political leaders and activists, unjustifiable and arbitrary. Poonawala’s petition has been tagged with Bhasin’s petition.

Habeas Corpus Petition by Sitaram Yechuri:

CPI (M) general secretary Sitaram Yechuri also moved the apex court demanding answers about the whereabouts and health of party member and former MLA Yousuf Tarigami who it is alleged has been placed under detention in Kashmi and is said to be in poor health. However, the Center argued that Yechuri’s visit was political in nature and was likely to “adversely affect the situation”.

The Supreme Court allowed Yechuri to visit Tarigami, but cautioned him saying, “We make it clear that if the petitioner is found to be indulging in any other act, omission or commission save and except what has been indicated above i.e. to meet his friend and colleague party member and to enquire about his welfare and health condition, it will be construed to be a violation of this Court’s order.” Yechuri was also directed to file an affidavit about Tarigami’s health upon his return. Yechuri tweeted, “The Supreme Court has permitted me to go to Srinagar and see Com Yousuf Tarigami and “report” back to them on the condition of his health. Once I meet him, return and report to the Court, I will make a more detailed statement.” The entire order may be read here.

Petition by JMI University student:

Mohammed Aleem Sayeed, a Kashmiri student of Jamia Milia Islamia University also moved Supreme Court for permission to visit his family in Kashmir. He was extremely worried as he was unable to establish contact with his family in wake of the communication blackout and moved court as a last resort. Ruling in his favour the court said, “The petitioner shall be allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back to the WP(Crl.) 225/2019 2 Court on the next date fixed. An affidavit of the events that have transpired pursuant to the order of this Court, shall be filed immediately on return of the petitioner from Jammu & Kashmir.” The entire order may be read here

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Image Courtesy: Scroll.in
 

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A family gets ready to move hundreds of kilometres at a day’s notice, from Goroimari to Sivsagar. The human
costs are incalculable; materially it will cost the family of daily wage earners no less than Rs 15,000-20,000

Guwahati, August 4, 2019: The NRC authorities in Assam have served thousands of urgent hearing notices to hapless residents of lower Assam, even those who have already been through the tortuous process more than once. News of such large-scale notices being served have crept in from late on Saturday night, August 3. Not only is the number of such notices high but the modus operandi seems worse: the notices compel persons with entire families to travel hundreds of kilometres away to upper Assam at a day’s notice. Moreover, these directives by the NRC authority appear to be a clear violation of the Supreme Court of India directives dated July 23, 2019. At the last hearing, the state and central governments had pushed hard for such a re-verification that had been turned down by the Supreme Court. Despite this, the NRC authorities, that are supposed to function under court orders, appear to be violating the same.
 
On July 23, 2019, the Supreme Court of India at the last hearing in the famed ‘NRC case’, had clearly ruled that such a re-verification process by the NRC is not necessary at this point. Despite this clear-cut judicial order, the NRC authorities have served thousands of notices in lower Assam Districts, between August 3 and 4, compelling poor and hapless residents, to rush in panic to attend hearing at various places in upper Assam. Despair and desperation has gripped several districts of the state over the week-end.

In an earlier order of May 2019 in the same case, the Supreme Court had also directed the NRC authority to ensure that the hearings –whenever they are conducted– are held at suitable places so that there is no undue harassment of those compelled to attend. Clearly overriding even these earlier directives of India’s Supreme Court, the NRC authority appears to have ensured maximum harassment: compelling hapless persons from the districts of lower Assam, especially many persons from Kamrup, Barpeta and Bongaigaon to travel hundreds of kilometres away.

Citizens for Justice and Peace (CJP) has collated a detailed such list of these re-verification notices which is in its possession. Dozens of persons  from lower Assam have been directed to attend hearings in the districts of upper Assam; districts like Golaghat, Jorhat, Sivsagar, Dhemaji and Lakhimpur, which are 500-700 km far from their place of residence. Sources within the NRC, while speaking to Sabrangindia admitted that in the Chamaria Revenue Circle of Kamrup District alone a staggering number of as many as 25,400 notices were served on August 3 and 4, asking persons to attend hearings, between August 5-7, 2019 in places like Golaghat, Jorhat and Sivsagar District.The distance from Chamaria to Golaghat is about 500 km, Jorhat is 550 kms away, while Sivsagar and Dhemaji are at a distance of 630 kms and 900 kms respectively. Dates of these hearings have been fixed between August 5, 6 and 7, 2019.

A sample such notice can be seen here:

Here is a memorandum submitted by citizens locally:

Likewise, within the Goroimari revenue circle as many as 4,500 notices have been summarily issued; and in the Nagarbera revenue circle a total of 3,500 notices have been served. Other sources admitted to Sabrangindi that from the total number of notices served in Kamrup district as many as 5,000 are on legacy data users, who have been called for a ‘strict re-verification’. If this is indeed true, then a total of about 1,00,000 people of Kamrup district alone will have to face re-verification in this round alone. The source also revealed that about 25,000 people from within the Chamaria Revenue Circle and 15,000 victims from the same district but out of the Chamaria Revenue Circle will have to, in all, face such a re-verification process. Besides, 20,000 people from other parts of the State will also have to face such a re-verification in the coming three days. Though the total number of people called (through these notices) for hearing are below 1,00,000, eventually the number of persons who will be subject to re-verification could go up by ten times of the number of notices issued. This is because, while deciding the fate of one genuine Indian citizen, 10-20 number of other witnesses from her/his village need to attend the hearings! At a most modest estimate, this means that a large, large number –close to 6,00,000 residents of Assam will need to subject themselves to these re-verification hearings in the next three days alone.
 
Is it possible for such large numbers to suddenly and promptly travel, at two days notice to places that are –at a minimum 500 kilometres away ?

“Since last evening, while huge numbers of notices were served in various villages under the Chamaria Revenue Circle, everyone was shocked. Persons who are being summoned under this latest procedure (‘re-verification’) have already faced multiple levels of hearings before the NRC in the past eighteen months. Faced with no choice, a beleaguered and marginalised population once again geared up on Sunday to face another round of bureaucratic probing. But where are the logistical facilities to meet this deadline and travel? Chamaria, the riverine area of Brahmaputra, has no road connectivity. The villages under Chamaria Revenue Circle are home to huge numbers of people, unlettered and argrarian labour, clueless on distances that need to be traversed and transportation requirements. When many started making inquiries, they found that the hearing centres are far out of their reach. Hundreds of people came out from their home on roads, desperately looking for transportation. Until late on Sunday night, they could book only 25 buses and about 100 small cars on hire, Costs sky-rocketed and poor families prepared ro pay up Rs 15,000 to 40,000.00 (only for transport) to attend the hearing!
 
“Even after all these efforts, many persons could not manage to hire as many vehicles as needed ” said Anish Bhuyan, CJP Volunteer Motivator for Kamrup District said. Shajahan Ali, Zila Parishad Member of Sontoli Zila Parishad added, “People are ready to attend NRC hearings. But there is just no available transportation. I approached the Deputy Commissioner of Kamrup District to request him to arrange the required vehicles so that everyone called on for hearings could actually attend. But the Deputy Commissioner asked me to speak to the Circle Officer in this regard. I even assured the Circle Officer that, if the government or NRC authority arranged the required number of vehicles, by way of official requisition, we will pay the fare of those vehicles. But all our efforts have gone in vain. The Administration has done nothing to help. Hundreds of people were ready and waiting but could not go to the hearing centres today. We have apprised Mr Debabrata Saikia, the Leader of the opposition in the Assam Legislative Assembly, of the dire situation. He has written a letter to Prateek Hajela, the State Coordinator for NRC, demanding a postponement of of the hearings till adequate arrangements are made.Sabrangindia has  a copy of this letter.
 
The letter has also demanded that it is the responsibility of the NRC authority to arrange for vehicles for those persons who had been served with re-verification notices, especially those summoned to far-flung areas. Saikia has demanded that all precautionary measures related to the safety and security of the people attending the re-verification process, in far-off places, also be taken by the NRC Authority.

Azizur Rahman, adviser to AAMSU has demanded that the NRC authority stops this undue harassment in the name of re-verification. He told Sabrangindia that the hearings could have been conducted within the same district to avoid such harassment of the marginalised. Sukharanjan Bir, Chief Advisor of the Bharatiya Nagorikatta Adhikar Surakshya Mancha also said that the attitude of the NRC authority does not benefit any government authority in a civilised society. Demands for payment of minimum wages for the days lost for these hearings are also being made. Hemen Das, former MLA and senior leader of the CPI(M) informed Sabrangindia that in his knowledge, 450 persons have been summoned from a remote and far-flung place in the interiors for a hearing at a NRC Kendra about 600 km far from their place of residence.
 
There are also serious allegations that the NRC authority –instead of following the diktats of the Supreme Court –are bending to pressures from the state government and therefore harassing target groups. Rehana Sultana, a Research Scholar of Guwahati has alleged, “my family members have been called in for hearing in three separate places on the same day! We are confused about which of us should attend which hearing and at which location especially as for each hearing we need to be accompanied by witnesses! Hundreds of Assam’s genuine citizens were shocked to find themselves served with notices late on Sunday evening (August 4) summoned to attend hearings 600-700 kilometres away on Monday! Is it possible for them to attend hearings at a NRC centre which is 600 to 700 km far from their home? This is unnecessary harassment for the poor people.”

Photographs of distress and panic in Assam (August 4/5, 2019)

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In the budget speech of 2017-18, then Finance Minister Arun Jaitley had introduced outcome-based monitoring for Schemes for welfare of scheduled castes, scheduled tribe and minorities. Subsequently the nodal ministries – Ministry for Social Justice and Empowerment (MSJE) and Ministry of Tribal Affairs ( MoTA) launched E-utthaan, a monitoring portal to get real-time data of performance and outcomes for all ministries and departments.

These portals can become a useful tool for analyzing the approach and programme implementation strategy of all ministries/ departments, which are earmarked for Scheduled Caste and Scheduled Tribe (SC & ST) communities. The two monitoring portals have improved budget transparency with regard to implementation and monitoring, but at the same time, it reveals very little in terms of nature of allocations, priorities of the schemes, planned outcomes or outputs.

Most importantly, the data represented on the portals are misrepresented or a mismatch with the official documents of the ministries. These technical impediments make it difficult to link the priorities and targets of the ministries to actual outcomes of any given scheme hence measuring the impact of program for SC & ST communities.

Education justice

According to U-DISE (Unified District Information System) 2016, 4,83,87,652 (19.11%) Scheduled Castes and 2,45,76,992 (9.71%) Scheduled Tribe students have enrolled in School Education (I-XII) Institutions. AISHE (All India Survey of Higher Education) 2018-193 states that 52,80,361 (14.41%) Scheduled Castes and 19,13,864 (5.22%) Scheduled Tribe students across the country have enrolled in higher education institutions.

To address this gap in school education as well as the higher education in the SC, ST Budgets, the Department of School Education has allocated Rs 10,257.92 crore for SCs and Rs 5,831.51 crore for STs, and the Department of Higher Education has allocated Rs 3,207 crore for SCs and Rs 1,605 crore for STs for the financial year 2019-20.

In this FY 2019-20, the Ministry of Social Justice and Empowerment, the nodal ministry for scheduled castes has Rs 3,845.09 crore to be spent for education, whereas the Ministry of Tribal Affairs for scheduled tribes has allocated Rs 1,953.81 crore to ensure the educational justice for STs.

Among all the schemes for school education in FY 2019 -20, Samagra Shiksha Abhigyan has the highest allocation of which Rs 7,264.4 crore and Rs 4232.69 crore are exclusively committed for SCs and STs respectively. In this entire Budget, for the Higher Education of SCs and STs, there are only two major schemes each.
 

1. Ministry of Social Justice and Empowerment and Ministry of Tribal Affairs have Post Matric Scholarships, which is a benchmark scheme to access higher education. It has given an allocation Rs 2,926.82 crore for SCs and Rs 1,613.5 croreore for STs in FY 2019-20).
2. The other set of Schemes are through UGC which offers various fellowships and scholarships for PhD, Post-Doctoral courses, has continuously decreased from 2014-15 to this year from Rs 602.85 crore to Rs 283 crore for SCs and Rs 439.03 crore to Rs 135 crore for STs.

In addition to the decrease in allocations, if we further unpack these schemes, and look at the nature of the scheme, they are general schemes and do not focus on the SCs and STs. They are not sufficiently planned to target for SCs and STs in the Annual Work Plans nor are they monitored to count the number of the SC, ST students that are being reached through these schemes.

This clearly shows it is allocated only for accounting purposes and not for real implementation. When we examine the approved budget and the utilised budgets, it is shocking to see that UGC spends about 55% of its approved budgets to schemes for SC, STs. This is a gross violation of the Finance Ministry of SC, ST Budget guidelines issues. If this is the fact for the education schemes, then in most of the other schemes, the reality could be far worse.

Land related scheme

As a lifeline, land plays a vital role in the life of SCs and STs mainly because they are agricultural workers and small-marginal landholders. The agriculture census of 2015-16 shows that scheduled castes operate in less than 9% and scheduled tribe in less than 11% of the country’s total agricultural land. From the same sources, it is also visible that the average size of operational land holding among SC and ST are 0.78 and 1.41 (in hectare), respectively.

Related to land, the 2019-20 Union Budget has provided only two schemes for SC, STs with an allocation of Rs 367.86 crore under SCC and Rs 221.60 crore under STC, respectively. The largest Scheme under SC, ST budget is the Pradhan Mantri Kisan Samman Nidhi (PM Kisann) of the Department of Agriculture, Cooperation and Farmers Welfare which is Rs 12,450 crore for SCs and Rs 6450 crore for ST. This indeed is a great programme.

However, when we unpack this scheme, it has no targets for SC nor STs which is therefore only on paper accounting purpose with a mask of SC, ST budgets and has neither mechanisms to deliver to SCs nor STs. This is a denial of funds and diversion at the conception itself. On the ground level, the total percentages of SCs and ST’s casual labour (agriculture and non-agriculture) are 52.6% and 38.3 % while other social groups composed of only 21.6%.

Keeping the situation in mind, the Government should ensure the enhancement in the budget in access to land, not as general scheme, but a clear targeted scheme especially for SCs and STs. It will be good if the Income Support Schemes is re-designed with clear and strict guidelines and mechanisms for ensuring its access by SCs and STs. Otherwise, it will continue to be a denial to SC and STs and a continuing mirage.

Manual scavenging

One of the most demeaning practices that exist in the world is manual scavenging which continues unabated and the government does not show or seem serious enough to eliminate this completely. The legislation for the Prohibition of Employment of Manual Scavengers and their Rehabilitation, 2013 does not take into account the cases, compensation and punishment in cases of sewer deaths.

It is a mandate of the National Commission for Safai Karamchari (NCSK) to conduct survey and document data from all states on the number of deaths since 1993. The latest annual report available from NCSK is of the year 2015-16 which states that ‘no person died in Sewerage work since 1993.

It is also mentioned that no sewer death has been reported by the local bodies i.e. EDMC, SDMC, NDMC, New Delhi Municipal Council and Delhi Jal Board and, similarly, many other states have submitted similar responses. However, the total number of deaths recorded by the NCSK across India from 1993 to 2018 amounts to 676.

Despite the national legislation on prohibition and rehabilitation of manual scavengers, there are constant lapses in the fund allocation and its disbursal. An amount of Rs 70 crore was allocated in FY 2018-19 under the Self Employment Scheme for Rehabilitation of Manual Scavengers; however, this year Rs 110 crore has been allocated under this scheme.

Funds allocated under the scheme continue to remain on the government documents and do not reach the beneficiaries. Data from RTI reveals that for the FY 2015- 16, Rs 36 crore was allocated for manual scavengers’ rehabilitation was left unused, whereas for the year 2017-18, Rs 24 crore remained unutilized, and not a single amount of money has been utilized until September 22, 2017.

Atrocities against the community

The latest National Crime Research Bureau (NCRB) data available is of the year 2016 which reveals that 40,801 cases of crimes against Scheduled Castes and 6,568 cases of crimes against the Scheduled Tribes are registered reported and the charge-sheets were filed in around 78.3%. From the statistics it can be noted that there is decline in cases reported over a period of three years.

The rate of charge-sheet has continued to remain high across the period of three years. Though, the rates of conviction in the cases of crimes against scheduled castes have increased in the above-mentioned period. The total number of cases up for investigation including previous year’s cases amounts to 56,299 of the SCs and 9096 of the STs.

Cases in which trial were completed by 2016 are recorded to be 14,615 cases of the Scheduled Castes and 2,895 cases of the Scheduled Tribes. Out of 14,615 cases, only 3,753 cases resulted in conviction of the accused and a total of 10862 cases resulted in acquittal of the criminals. Total number of cases pending for trials by the end of the year 2016 amounts to 129831 cases and the data also clearly signals higher rate of atrocities against Dalit women and minor girl children with crimes such as rape, abduction and kidnapping are on the rise targeting Dalit women.

In FY 2018-19, the fund of Rs 403.72 crore was allocated and for the FY 2019-20, a fund of Rs 530 crore has been allocated under the Department of the Social Justice & Empowerment for the Strengthening of Machinery for Enforcement of Protection of Civil Rights Act 1995 and Prevention of Atrocities Act 1989.

With clear evidences which are the proof of delay in delivering justice and increase in cases of crimes against the SC & ST, with low conviction rate, high pendency rate, limited number of Special Courts & Public Prosecutors it is essential for the state to not only allocate more funds but also fulfill the mandates provided under the Act, invest in mechanisms like establishment of Exclusive Special Courts & Exclusive Special Public Prosecutors that are necessary for strengthening & ensuring better implementation of PCR and PoA Act which act as a watershed for the Dalit Adivasi community.

Adequate preventive measures to address violence in the atrocity prone district are absent.

Child rights

Children, despite constituting 29.50% (0-14 years) of the total population, remain one of the most neglected categories by the public financial planners. The total budget allocated for the welfare of children to various departments under Statement12 on ‘Allocation for the Welfare of Children’ is Rs 91644.29.crore, which was Rs79090.35 crore in FY2018-19 Budget.

In the Full Union Budget 2019-20, 3.28% out of total budget expenditure has been allocated for the welfare of children under various departments, marking 15.87% increase compared to the FY 2018-19.

However, a deeper analysis of the Government schemes for children under the Scheduled Caste Component (SCC) and Scheduled Tribe Component (STC) shows that there are only 20 schemes under SCC and 16 schemes under STC which are related to child welfare. The government has announced a total amount of Rs 17,920.92 crore for children’s welfare SCC and Rs 10 881.7 crore under the STC of the Full Budget 2019-20.

The overall percentage of allocation for SC children’s welfare against the total of SCC is 22.03% and for ST children, it is 20.58% out of total expenditure of STC. According to the Full Union Budget 2019-20 allocations, ‘Direct Allocations’ for SC and ST children is 79.19% and 82.05% respectively.

From the fact mentioned above, it is clear that there are still deficit of almost 20% allocation for the children in the allocation phase. It will be warm approach if the government can increase the targeted schemes allocation.

Courtesy: Counter View

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The Lok Sabha on Monday (August 6, 2018) unanimously passed a Bill to reverse the effects of a Supreme Court order concerning certain safeguards against arrests under the SC/ST law. The amended ‘Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018’, now rules out any provision for anticipatory bail for a person accused of atrocities against people from SC or ST communities, as it stood before the revision. Ram Vilas Paswan, part of NDA, and a Dalit, not only thanked the Prime Minster but used the occasion to also criticise the Congress. To emphasise that the Congress party is anti Dalit, he raked up the elections in which Congress had contested against Ambedkar (decades ago). That Ram Vilas Paswan’s own allegiance to Ambedkar ideology is also strongly under cloud, given that he is allying and empowering the BJP, a party that proudly carries its agenda of converting the Indian Republic into a Hindu Rashtra, is one aspect. Related to this is the fact that the Hindu Nation was anathema for Ambedkar and what he stood for, embodied in the Indian Constitution that showcases social justice, secularism and democracy.
 
Paswan has been well described as a Mausam Vaigyanik, (Scientist predicting weather). A man and a politician who, to remain in power, not just twists and turns the argument, but is prepared to make ideological compromises. His own ideology reflects a  hunger for power. His words and political stance do not matter much except on the electoral chess board. 

Electoral Battle Between Ambedkar and Congress: Paswan’s depiction gives a very selective presentation of the relationship. While he does point out this fact, he omits to mention that  Ambedkar was not a member of Congress party any time. Also that it is the same Congress party in whose government he was made the Cabinet minister, earlier. Paswan needs a historical memory jog: not only was Ambedkar Minister in the first Indian Cabinet, he was also made the Chairman of Drafting Committee of Indian Constitution, in which Babsaheb played a pivotal role. To cap this it was he who was requested to draft the Hindu Code Bill, a major step to reform the family laws towards a gender just society.
 
RSS Major Opponents of Ambedkar and the Constitution: While the likes of Paswan, hankering after power today, do mouth Ambedkar’s name, they deliberately omit mention of the fact that the major opposition  to the Indian Constitution as drafted by him, the major opposition to Hindu Code bill came from the stable of RSS, the parent organization of the party, in whose alliance he is today enjoying the perks of power. One can even say that Paswan’s political ally, the BJP’s agenda,  of a Hindu Rashtra is polar opposite to the dream of Indian nationhood that Babasaheb Ambedkar stood for: the dream of Liberty, Equality and Fraternity, the dream of secular democratic India. The RSS has never hesitated in criticizing the Indian constitution, calling it Western; the BJP has never severed its umbilical cord to the Hindu nationalist RSS. Lately from within BJP itself from top down, Hindu nationalism is being propagated and practiced. Aggressively. Attacks on dalits, among other marginalised sections, go hand and hand with this hegemonic notion.
 
On the eve of the 2014 general election Narendra Modi, the Prime Ministerial candidate himself pronounced that he was born in a Hindu family; he is a nationalist, so he is a Hindu nationalist. Another minister in the Centre, Anant Kumar Hegde has stated that the BJP is there, in power, to change the Indian constitution and that a secular identity should not be used by the people. To cap it all the UP Chief Minster Adityanath Yogi stated that Secularism is the biggest lie of Independent India. 

The BJP itself is very consciously walking the tight rope, balancing phrases and actions as for as Dalits are concerned. On the one hand, the power-lust of some dalit leaders like Paswan, Udit Raj and Ramdas Athwale are used to give a pro-Dalit veneer to BJP’s actions, on the other hand likes of Hegde and Yogi are forthright about their political agenda. It is also true that for the sake of electoral equations even the BJP has to pay obeisance to Ambedkar, despite having and agenda totally opposed to his political ideology.
 
On the ground, the impact of BJP-NDA, of which likes of Paswan are members, has affected Dalits and their life situation and culture in a very serious way. While these hegemonic forces are, trough ‘social engineering’ trying to woo a section of Dalits through manufactured icons like Suhel Dev and Shabri Mata among others, they have unleashed policies which affect the Dalit livelihood, in a very adverse way. The merciless beating of Dalits in Una, which Paswan dismissed as a minor event, the emotive issue of Holy cow has affected the livelihood of dalits in a big way. We also remember that it is during this period that institutional murder of Rohith Vemula and the anti dalit attack at Bhima Koregaon has tormented the Dalit community no end. Even the Modi Government, did try, first, to dilute the Atrocities Act, only once they saw a serious opposition to their move, were they compelled to retreat simply for electoral calculations.
 
While the BJP pays tribute to Ambedkar on the one hand , at the same time it presents Lord Ram as the central icon of its politics. What Ambedkar has said about Lord Ram in his various writings like ‘Riddles of Hinduism’ is well known. It is a sharp and scathing indictment of what he sees as Hinduism and its icons. For the BJP, while it is important to garland Babasaheb; it is of no consequence to them to take forward the agenda of social justice.

The latest attempt to selectively present the electoral battle between Congress and Ambedkar too, is a deliberate ploy to undermine the efforts which the national movement and Mahatma Gandhi-Congress achieved to fight against untouchablity in particular. 

We have miles to go as far as Babasaheb’s dream is concerned. But one thing aspect we cannot afford to forget is what  Ambedkar pointed out: Hindu Raj will be a big tragedy for Dalits of the country. 

It is too much to expect that the likes of Paswan will realize their folly of allying with the BJP-RSS whose very agenda is inherently anti-Dalit, as they are blinded by a lust for power!
 

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The Supreme Court, on Monday, July 24, 2018, ruled that there could not be a “complete ban” on protests at Jantar Mantar in New Delhi, the Indian Express reported. A bench of Justices Ashok Bhushan and A. K. Sikri said, “There cannot be a complete ban on holding protests at places like Jantar Mantar and Boat Club (near India Gate),” and directed the Central Government to formulate guidelines regarding the issue. 

The ruling came in the case of a petition filed by Mazdoor Kisan Shakti Sanghatan, which challenged an order from the National Green Tribunal (NGT), which in October 2017 had asked the Delhi government to end all protests in the Jantar Mantar area, Scroll reported. The NGT said the protests breached environmental laws, and that it was the state’s duty to shield people from nois pollution, the Indian Express reported. The bench, led by Justice R. S. Rathore, had directed the New Delhi Municipal Council (NDMC) to take down all temporary structures, loudspeakers, and other protest-related equipment on the road leading to Jantar Mantar. It had deemed the Ramlila Grounds in Ajmeri Gate as an alternative option for demonstrators, where, as per North body authorities, just one group can hold an event at a time. 

It is Article 19(1) of the Constitution Of India that gives Indians the Right to Protest. Article 19 reads:
Article 19 (1) All citizens shall have the right
                (a) to freedom of speech and expression;
                (b) to assemble peaceably and without arms;

The petition challenging the NGT’s order argued, “….holding peaceful demonstrations in order to air grievances and to see that their voice is heard in the relevant quarters, is the right of the people. Such a right can be traced to the fundamental freedoms that are guaranteed under Articles 19 (1) (a) and 19 (1) (b) of the Constitution. Article 19(1)(b) specifically confers the right to assemble and thus guarantees that all citizens have the right to assemble peacefully and without arms,” Bar and Bench reported. The petitioner had argued that authorities and the police had curbed protests by constantly imposing Section 144 of the CrPC. The petition had said that the Delhi Police had for multiple years been issuing such directives as soon as the previous order lapsed, which constituted an abuse of power and hampered citizens’ right to protest, violating Article 19. The petitioner also submitted that in other areas of New Delhi, protests were previously permitted but have been slowly curbed over time. 

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 Image Courtesy: The Hindu
 
 Gulbahar Bibi, the widow of Afrazul Khan, with their daughters at Kaliachawk in West Bengal

In response to a petition filed by Gulbahar Bibi – the widow of Mohammad Afrazul Khan, a migrant labourer who was hacked and then burnt to death at Rajsamand in Rajasthan on December 6 last year, the Supreme Court on Friday instructed the counsel for Central Bureau of Investigation (CBI) to seek instructions on pleas of transfer of investigation gicven allegations of partisan behaviour of the police. The prayer regarding seeking a transfer of the case from Rajasthan to Malda in West Bengal will not be considered at present. The court has fixed April 2 as the next date of hearing. Chief Justice Deepak Misra and Justice AM Khanwilkar clarified that the prayer is being not considered for this point of time and can be considered if at a later stage the petitioner is not satisfied with the investigation.

The petitioner has alleged that the Rajasthan Police carried out the probe without investigating the hate crimes that led to the killings: namely, spreading enmity between different groups on the basis of religion and creating disharmony (Section 153A of the Indian Penal code), which is beyond the scope of the present investigating agency so the guilty will never be brought to book.

The petitioner through her counsel, has asked for an impartial probe from an independent national agency and a complete ban on spreading hate videos of communal nature targeting a religious community and discriminating against it with an aim to encourage violence and creating divide. Immediate removal of all such videos from internet and WhatsApp has also been sought. “The Respondent no. 1 (the Centre) is duty bound to ensure that the service providers do not upload the said videos which are a form of hate speech encouraging others to indulge in copycat crimes,” said the petition.

The petition, mentioned in the first week of February this year, has also sought an inquiry into the “factors that led the accused – Shambhu Lal Raigar – to commit such a heinous crime, the factors and people responsible for spreading such hatred in the name of a communal myth/fiction being propagated as “Love Jihad”, being hate speech, stigmatising an entire community, by creating a myth that Muslim men are marrying Hindu women and fighting a ‘jihad’”.

Raigar, who has confessed to his crime and showed no remorse during the police questioning, not only mercilessly killed Afrazul but also got the gruesome act recorded on cell phone by his minor nephew. The accused can be seen in the video hitting with an axe the deceased who is repeatedly shouting “Babu Jaan Bachao” (please save my life). While the victim’s body is lying in a pool of blood, the accused says before camera, as if addressing a group of people, “Jihadiyon, ye tumhari halat hogi, yeh love jihad phailaoge hamare desh men…hamare desh men aisa karo, yeh tumhare har jihadi khyalat, jihad khatam kar do…(Jihadis, this is what your condition is going to be, you spread love jihad in our country, if you do this in our country, this will be the fate of each of you jihadi…).”

Speaking to the media, Fuzail Ahmad Ayyubi, the junior counsel, said his client – through her petition – wants the “communal myth of Love Jihad” to be broken. “A stranger killed another stranger on the basis of a distorted perception. The case tries to go into the larger conspiracy of hate crimes,” he said.

Asked why the petitioner wants another inquiry when the Rajasthan Police has already probed into the incident and has submitted a charge sheet revealing that the accused created the plot of ‘Love Jihad’ to justify the killing and hide his illicit relations with a woman whom he used to call his sister and who had eloped with another man belonging to Afrazul’s village in West Bengal, Ayyubi said the investigation is “insufficient to unearth the larger conspiracy”.

“A national investigation agency will be competent to conduct a comprehensive probe,” he added.  The reason for seeking transfer of the case is aimed at access to justice – according to the deceased wife – in a free and fair atmosphere and the appointment of a special public prosecutor who is not related to the ruling party of the state and functioning under the supervision of the Court.

“This is particularly important since the Petitioner resides in West Bengal and is unable to be physically present at the trial. There is an atmosphere of mass hysteria at the hearings as is evident from news reports that orange flags were hoisted on court house building by supporters of the accused on the date of hearing,” submits the petitioner who further argues that the “accused was arrested and produced before the magistrate on 14th December, on the same day a group of miscreants belonging to some groups protested, shockingly and bizarrely in support of the murderer, Shambhu Lal.

“The protests by these miscreants were not at all peaceful and were clearly aimed at destabilizing the law and order situation and to incite violence, this is evident by the act of some of these so called protestors who climbed atop the gate of the District and Sessions Court, Udaipur, Rajasthan and unfurled some saffron flag due to which police tried to control the protestors during which about 12 cops were injured and only after more than 175 people had been arrested or detained by the police and that only after the Section 144 Cr.P.C was imposed that the situation showed some signs of control.”

The petitioner has also sought increased compensation from the state government for their failure to prevent the spread of communal violence. The Rajasthan government has given her Rs 5 lakh as compensation. She has also received Rs 3 lakh from the West Bengal government. But she said that the amounts are not sufficient for maintenance of her one daughter.
 

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