Works unwell

This piece came in Down To Earth (Corss Current section) in Dec 15, 2009 issue

Link: http://www.downtoearth.org.in/node/2603 

Works unwell

Employment guarantee scheme workers in Rajasthan do not get their dues

“Puro kaam, par puro daam nehin milto,” says Hodri Bai of Morthala village in Rajasthan’s Sirohi district. In the Grasia dialect this means, “We do full work, but do not get full payment”. The problem has plagued the National Rural Employment Guarantee Scheme in Rajasthan ever since its inception in 2006. It’s an ironical situation considering that Rajasthan pioneered the nation on the right to work scheme.

People in Sirohi district complain that fixing wages is an arbitrary affair. Officials, usually a junior engineer of the Public Works Department, fix wages on basis of work done by the total group of workers at a site—an individual worker’s output is not considered.
This practice has led to various problems. Since people themselves cannot measure the work they have done, they cannot correlate it with the wages they should get.

In most cases the payment is far less than the minimum wages. During the first half of 2006, people were paid Rs 20-30 a day instead of the stipulated minimum of Rs 73.

Initially, the scheme also fostered a worker’s aristocracy. “In a group of 50, about 10 people, who were close to the supervisor, would come to the worksite only for the sake of attendance and go away. But they were paid wages,” Manju Kahanar a worker of Janchetna Sansthan, a non-profit working on the issue of right to work, told this writer.

Kahanar’s organization was in the forefront of a movement that began in 2007 to improve the quality of the supervisor’s work.

Labourers are now divided into a group of five; work target for each day is fixed and the workers are paid after completing the assigned task. These interventions did lead to an increase in the worker’s output and there was increase in their earnings. Non-serious workers disappeared and there was more discipline. But Kahanar still believes there is no effective mechanism to check worker’s slackness. She calls this “the hangover of the drought relief works”.

In March 2008, the minimum wages were revised to Rs 100. This did improve matters somewhat. But in Rajasthan, the minimum wages are actually the maximum wages. So a worker will not be given more than Rs 100.

The supervisor—called the mate—does not let people work more than what will earn them Rs 100. The workers are fine with this arrangement but the situation gets complicated because the overall in-charge at a site—the junior engineers—do not accept the supervisor’s calculations.

They believe workers actually do less work than calculated by the mate. So after the overall in-charge has had his say, the workers end up getting less than Rs 100. In a conversation with this writer, Rajasthan’s one-time nregs director, Manju Rajpal, admitted to the discrepancy. “There is as much as 20 per cent discrepancy in what the mates measure and what the junior engineers do.”

Workers are caught in this tussle between the supervisor and the junior engineer. They are willing to work more to earn Rs 100 but the supervisor does not permit them to.

Shape up

Then there is a paucity of officers to measure the workers’ output when works on the employment guarantee scheme are at full steam: usually May and June.

We are taking steps to improve matters, Rajpal told this writer. Junior technical assistants have now been asked to take up some of the junior engineers’ employment guarantee scheme tasks, but this change has improved matters only marginally.

The writer is a freelance journalist in Orissa, currently working on NREGS. The trip to Rajasthan was sponsored by Action Aid India

Starvation deaths continue, as officials demur

This piece came in India Together (www.indiatogether.org) on 2nd December 2009
http://www.indiatogether.org/2009/dec/pov-starve.htm

Starvation deaths continue, as officials demur

BPL politics at the central level is skewed, and quotas are fixed for every state, regardless of the actual number of people who need to be protected. Pradeep Baisakh reports on one family's near-total loss.

02 December 2009 - "What is your daily diet?" I asked Ramprasad, the seven-year-old son of Jhintu Bariha in Balangir district of Orissa. "I take mudhi (puffed rice) with black tea in the morning given by my grandparents; rice with either salt or with some wild spinach collected from the forest during noon." I waited a while for him to tell me about dinner, but he did not continue, so I asked him again, "OK, then what do you take for dinner?" Still no answer.

Upon my innocent repetition of the question, Ramprasad began crying. Immediately I realised my mistake - I should have not repeatedly asked him the question. This child doesn't get to eat anything for dinner.

Ramprasad is the only survivor among his siblings, in Buromal village of Bhanpur Panchayat. His father Jhintu had lost Siba Prasad, his 3-year-old son, Gundru, his 1-year-old daughter and Bimla, his 35-year-old wife Bimla one after another on 6, 7 and 9 September 2009 respectively. The local media initially reported these as starvation deaths, but eventually malaria was said and reported to be the cause of these deaths.

Jhintu (42) a tribal, was married to a hindu woman. After their wedding, due to oppostion from the community to his inter-community marriage, he preferred to move out of state with his family to work. Three years ago, when he was working in Madhya Pradesh as an agricultural labourer, he was eloctrocuted in an accident, and his left hand and left leg were partially paralysed. As a result, he was forced to return to Orissa. He is separated from his parental family and does not possess any agricultural land. He and his wife used to do minor agricultural work in the village and in surroundings to earn their livelihood, but this was hardly sufficient - there is very little work in and around.

This forced the family to again migrate, this time to work in the brick kilns in Andhra Pradesh last year. Jhintu, already too weak, fell drastically ill in Andhra and was brought back to the village in June this year. This time around, again back in village, it was very difficult for Jhintu to work as he was too ill, and Bimla also could not go out full time for work as she had their infant daughter to care for. As a result, the whole family was suffering from gross inadequacy of income and food.

Jhintu did not possess any PDS (Public Distribution System) card. The only help they received was a share of PDS rice (half of 25 kg of rice a month) from his elderly parents, some portion from his father's old age pension (his mother is not getting her pension, though she is eligible) and some occasional help from the community in terms of food items. For a family of two adults and three children, this added up to a lot less than subsistence. Little wonder then, that three of them lost their lives.
But to what? Starvation or malaria?

The cause of deaths
Champi Bariha (80) and Bimpi Bariha (70), Jhintu's parents say that since his family had been living on grossly inadequate food for a very prolonged period, their deaths are clearly the result of starvation. They admit that the children were ill and feverish just before their deaths, but insist that these were merely the final symptoms - they succumbed essentially to starvation. Jhintu Bariha, who was himself then admitted in the hospital and been treated for fever, also confirmed this. He said the family had been starving as they did not have adequate income nor had they been getting any government entitlements. Their gradually starvation led to the illnesses, culminating in death.

But district officials do not believe Jhintu's children and wife died of starvation. The Collector-in-charge Sanjay Kumar Habada and the Block Development Officer Chandramani Seth say that Jhintu's financial transactions with villagers indicate he would have had money to meet his food expenses. Moreover, just the day before the death of his wife, his parents had got their quota of 25 kg rice from the ration shop, so they must have had some food too available, say the officials. Some villagers too say the three died of malaria, and not starvation.

The State Advisor's office attached to the Supreme Court Commission on Right to Food, in its report submitted to the Commission based on its fact-finding visit, writes "... food intake for the family of five may clearly give a picture of the severity of the vulnerable condition of the family. The inadequate food intake was taking a heavy toll on the health of the whole family which in turn was reducing their ability to work to earn. They were therefore caught in the vicious cycle of poverty and starvation."

Bimpi, Jhintu's aged mother has still a clear way of describing the starved situation of the family. "When the small two children would cry out of hunger, they would start sucking their mother's breast, ... but nothing would come out." She says. "How can there be secretion of milk from the mother's breast if the mother herself does not get enough food to eat?" she asks.

The doctors say the deaths were most likely the result of malaria. Firstly, it was found that there is a malaria epidemic in the village where out of a total of 370 people, almost a third (120) were found malaria positive after testing. Secondly, in case of Jhintu and his surviving elder son, who were taken to the district hospital by the administration as they were suffering from fever and loose motions, "they responded positively to anti-malaria doses, although they tested negative; this is clinical malaria" says Dr Balaram Panigrahi, a medical officer at the district hospital in Balangir.

A conspiracy?
Immediately after the media report of three starvation deaths, a mobile health unit was sent by the administration to camp in the village. This health unit tested and found 120 positive cases of malaria, and all of them were administered anti-malaria doses. However, doctors say that although this area is malaria-prone, there have not been any recent reports of malaria deaths. Moreover, the villagers don't appear to show any post-malarial weaknesses.

The report sent by the advisor's (Advisor to SC Commission) office observes that there were some influential people in the village trying to track the movement of the fact finding team, and the villagers were generally tight-lipped on this matter. However, some investigations and in-depth questioning of a few young people gave them a clue - that only five to six people had fever, but the doctors had administered many people anti-malaria doses anyway.

Bideshi Meher had no fever, but his blood was tested and he was given anti-malaria doses. "The doctors told me that malaria has spread, and I should take these medicines. If I do not take these I will have malaria." says Bideshi. After taking anti-malarial pills, however, he fell ill. When he discontinued the medicine, he became normal. Santosh Meher, a young man in the village also did not have any fever but was given anti-malaria pills. The advisor's office report writes " ... In order to cover up, the doctors have administered malaria doses to many who did not have any fever. This may be why the media initially reported it as a case of starvation death, but later ... as malaria. The report suggests that further investigation is needed to establish the truth behind the "probable conspiracy".

Amidst the controversy, Jhinu Bariha also breathed his last on 7 October 2009. After he was discharged from the district hospital (where has treated for fever during September), he came back to his village. On the fateful day, he began vomiting and was taken to the nearest hospital by the villagers. On the way he died.

Covering up starvation
The Supreme Court, in an interim order in October 2002 in PUCL vs. Union of India and Others fixed the responsibility on the Chief Secretary for any starvation death occurring in a state. Following the order, the Chief Secretary of Orissa despatched a letter in November 2002 to all the Collectors stating "... The responsibility of the Chief Secretary is the collective responsibility of the entire State administration of which the Collectors are the key functionaries." By implication all the collectors along with the Chief Secretary will have to own responsibility for such cases. With the government's image at stake, the administration has been hostile to poverty and starvation reports, as documented in a number of cases. In 2002, for instance, NDTV and Star News reported the starvation death of two tribal children in Keonjhar district. A fact-finding team sent by the Union Ministry of Consumer Affairs, Food and Public Distribution reported otherwise.

It may be remembered that the government in the state at that time comprised of a coalition between the Biju Janata Dal (BJD) and the BJP, with the latter heading a larger coalition also including the BJD at the Centre. The politics in the country is not so mature where New Delhi ruled by one party will give a hostile report on a state ruled by the same party or is a coalition partner. Ironically, a national English weekly blasted the journalists for making sensational reports, and even went to the extent of making charges of bribery against the Star News reporter!

In another case, in 2005 it was reported by some electronic media that the people of Paharia, a vulnerable community in Nuapada district eat 'soft stone'. In its response, the government filed a criminal case against a journalist and the regional electronic channel reporter was sacked from the television. In protest to the criminal case, the Orissa Journalists' Union (OJU) staged a dharna to condemn the vindictive act of the government.

Starvation and the BPL list
Twenty two per cent of Orissa's population are tribals, and another 16 per cent are dalits, both highly vulnerable communities. Therefore, proper mapping of BPL (Below Poverty Line) families is important, as it serves as the lifeline for many. But the BPL politics at the central level is skewed, and quotas are fixed for every state, regardless of the actual number of people who need to be protected. The has bearing on the Supreme Court's orders to check starvation deaths.
In its 8th report submitted to the Supreme Court in 2008, the SC Commission on Right to Food headed by Dr N C Saxena and Harsh Mander observes "... we have found that interim order of 2nd May 2003 of the Supreme Court (that identified six vulnerable categories of people should be provided with AntoDaya Anna Yojana, AAY cards) is one of those least implemented by most state governments. We believe that there are three main reasons for this wide failure ... the quotas for AAY in most states were already exhausted before the said 2003 order". The report suggests that there should be exclusive court orders for covering these categories of people under AAY for two years irrespective of the quota limits. However, this recommendation has not cut much ice in government circles.

Interactions with many families in the Kalahandi-Bolangir-Koraput region suggest that the '25 kg of rice' scheme by the state government which was universal in this region (given to those who possess a ration card irrespective of whether BPL or APL) served as lifeline for them. But in Orissa, the BPL list has not been updated since 1997 (2002 BPL survey was not made operational). This puts many deserving families in the region out of the loop, as so many families that have formed in the last twelve years have not got a card. The economists sitting in the Planning Commission, who fix the limit of food subsidy so also the state quotas, hardly take into account on how many families like Jhintu's are made to starve due to its changed approach based on 'economic rationalism'.

The expert committee appointed by Ministry of Rural Development and headed by N C Saxena has recommended a more inclusive methodology for conducting BPL surveys. According to the committee, the poverty level in Orissa is projected to be 84.5 per cent - as against 47 per cent in the 1997 survey. It is for the Centre to recognise this reality, and stop the tragic deaths of many others like Jhintu and his family. ⊕

Pradeep Baisakh 02 Dec 2009
Pradeep Baisakh is a freelance journalist based in Bhubaneswar.

Does the Government care?

This piece was carried in the "GRASSROOTS" in November 2009 issue

Does the Government care?

Poverty and hunger have left many families on the bread;line in Orissa, even most are left to die, drawing least media and government attention.

PRADEEP BAISAKH, Orissa

The Expert group headed by Dr N C Saxena, which was constituted by MoRD, Government of India to suggest appropriate methodology for conducting Below Poverty Line (BPL) census, projects the poverty figure in Orissa as 84.5 percent of the total population. The state government may or may not agree with the reports of starvation deaths, farmers suicide, torture and missing of interstate migrant workers, but the fact remains that poverty and destitution in Orissa is a perennial phenomenon, out of which only a few come to light.

Padman Naik and wife Bhuje Naik of Karangmal village in Nuapada district of Orissa belong to Bhunjia community (adivasi) and somehow managed to make their ends meet. Their seven children survived from wages of daily labour. Landless with no regular work, life was very difficult, but this did not stop him from giving his six children a decent education. Except the elder daughter, who is mentally challenged, all the four daughters study at residential girls’ school and their sons (twins) go to the village school.

Padman’s death in Tuberculosis in January 2009 snatched away everything and left the family in penury and desperation. Bhuje, burdened with the responsibility of feeding her children single-handedly was losing hope while her two daughters Lally (aged 14 and studying in Class X) and Dolly (aged 13, studying in Class IX) began to work as daily labour whenever they return from hostels. Three month after husband’s death Bhuje fell ill and was diagnosed with intestinal complications. Her relatives took her to the local hospital, then to Burla hospital but finally gave up as the complications were too severe. They had already spent about Rs 10000 and are unable to afford treatment anymore.

The Naik family has got one BPL card and one Annapurna (issued in the elder daughter’s name) and so, effectively they are eligible for 25 kg rice @ 2 rupees per kg and 10 kgs of free rice per month, which is is insufficient to feed the entire family. Dolly and Lally have to not just just provide food for their siblings but also earn enough money to buy medicine for their mother.
The school authorities have done their bit by permitting the two girls to stay in home and attended the mother without missing the classes. The sisters do odd jobs and also take woek under NREGA, although it is not routine as due to non-availability, and try to earn as much as possible. Somehow all their efforts are just not sufficient.

The family is so poverty stricken that they cannot even afford to buy the 25 kg subsidised rice. “Bhuje and her children have gone hungry for some months now and if the administration does not provide immediate and adequate help, the entire family is bound to die of starvation.” expressed Sameet Panda, a Researcher from the office of the advisor to Supreme Court Commission on Right to Food.

Padman’s death had the family entitled to ex gratia of Rs 10,000 under National Family Benefit Scheme (NFBS) for death of the major earning member of the family as well as the widow pension of 200 rupees per month. Nevertheless, none of the benefits ever came. The Sarpanch of the Panchayat says he was not informed of the status of Naik’s family by the ward member and the higher officials are in total darkness of the entire situation.

Sources suggest that Panchayat was well aware of the family’s plight but prefer to overlook the matter. It is after the intervention of Sameet Panda and some electronic media, did the Panchayat deliver rice under Gratuity Relief and PDS to Bhuje and her children. The Sub Collector, Gurucharan Prasad, eventually visited the family and sanctioned widow pension due and Rs 10,000 from the Red Cross fund for the Bhuje’s treatment. There were promises to release NFBS soon as well.

It must be noted that the Supreme Court in its order in October 2002 fixed the responsibility on the Chief Secretary of a State for any starvation death occurring in a state. Following the order, the Chief Secretary of Orissa wrote in November 2002 to all the Collectors stating that the responsibility of the Chief Secretary is the collective responsibility of the entire State administration of which the Collectors are the key functionaries as well.

The Naik family is lucky and their plight received the attention at right moment with social activists and media taking up the issue before the inevitable worst could happen. However, this is but one case.

There are many starvation death cases those never been brought to light and have remained completely hidden from public sight such as the case of Harihara Sahu from Bhadrak district who died on May 1, 2009 or that of Nagar Munda, a tribal person from Bhadrak District as well, whose death by starvation was reported on February 17, 2008 and also the case of Santara Nayak from Dhenkanal district who died on November 10, 2007.

These are just a few names but given the poverty estimates in the state of Orissa, there are, without doubt, very many families suffering from starvation. This being the situation, would the Chief Secretary or the Collectors ever be held responsible for these preventable deaths? Experience till date suggests that it is most unlikely.

Why judges should declare their assets to the public

This piece came in 'South Aisa Politics' in October 2009

Why judges should declare their assets to the public

Pradeep Baisakh

The unanimous decision by the Judges of the Apex Court to declare their assets brings a breather to the prevailing tension in the working of the “framework of right to know” and of “transparency and accountability” designed under Indian Constitution. In the ‘full court meeting’ of the Supreme Court held on 26th August 2009 it was decided that the assets of the judges and their dependents will be declared for public knowledge. Such information will be put in the Supreme Court’s website.

RTI filed on information of judges’ assets
The whole issue started with S. C. Agrawal of Delhi seeking information from the Central Public Information Officer (CPIO) of the Supreme Court on whether any declaration of assets in terms of real estate and investments have been made by the Hon’ble Judges of the Supreme Court and the High Courts to their respective Chief Justices in line with the resolution passed by the All India Judges Conference in May 1997. The CPIO denied providing any information as such information was not with the registry of the Supreme Court. Though such information was available with the office of the Chief Justice of India (CJI), both the CPIO and the appellate authority were silent on that. The applicant therefore approached the Central Information Commission (CIC) for justice.

During the hearing two legal stalwarts on the field, Adv Prasant Bhusan appearing for Agrawal and Additional Solicitor General of India Amarendra Sharan batting for the Apex Court put forward their cases. Shri Sharan argued that “resolution passed by the judges is an in-house mechanism. The declaration regarding assets of the judges is only voluntary. The resolution itself describes submission of such declarations as “confidential”…the declarations are submitted to the CJI not in his official capacity but in his personal capacity…disclosure will be contrary to the provisions of section 8(1)(e) of the Right to Information Act i.e. breach of fiduciary relationship.”

Adv Prasant Bhusan contended that “the declaration of assets by the judges is ‘information’ within the meaning of section 2(f) of the RTI Act and the same is held by the Supreme Court, which is therefore accessible within the meaning of section 2(h) of the Act. If the Registrar of the Supreme Court states that the information is not held by them but held by CJI then the CJI is a separate Public Authority independent and distinct from the Supreme Court of India…If the two are different and distinct Public Authorities then the CPIO should have transferred the RTI application to the CJI under Section 6(3) of the Right to Information Act.”

Both these cases centre around two legal issues. One, whether ‘the office of Chief Justice of India in his capacity as Chief Justice not sitting in a Court” can fall under the definition of public authority and, therefore, be subject to the application of Right to Information Act, 2005 (RTIA). Two, whether the Supreme Court of India and the CJI are part of the same Public Authority or the CJI constituted a separate and independent Public Authority.

Supreme Court comes under purview of RTI
Full bench of the CIC constituting Chief Information Commissioner Wajahat Habibullah, Information Commissioners A.N. Tiwari and Prof. M.M. Ansari ruled in Agrawal’s case that:
a. The Supreme Court of India is an institution created by the Constitution and is, therefore, a Public Authority within the meaning of Section 2(h) of RTIA
b. Under Article 124 of the Constitution, the CJI is part of the Supreme Court and they are therefore not separate authority.
c. The CJI is the custodian of this information which is maintained like any other official information which is available for perusal and inspection to every succeeding CJI. Therefore the information cannot be categorized as “personal information” even though the CJI holds it in his personal capacity.

Thus it directed the CPIO to furnish the information asked by the applicant. (The order is available at: http://cic.gov.in/ ) But this ruling was challenged by the SC in the Delhi High Court, which stayed the order of CIC. Appearing for this case on behalf of SC in Delhi High Court, Solicitor General G E Vahanvati argued that disclosing information about the assets of judges was not mandatory under the law, and the CIC’s decision was excessive and without jurisdiction. He also arued that such a disclosure will affect the independence of the judiciary.

Judges assets bill to legalise secrecy
The next move to protect the assets of judges from public scrutiny came in form of “The Judges (Declaration of Assets and Liabilities) Bill, 2009”. The bill claimed to be aiming at bringing transparency in higher judiciary by providing for declaration of assets and liabilities by the judges. Under it, the judges of Supreme Court would declare their assets to the Chief Justice of India (CJI) and judges of High Courts to the concerned Chief Justice, the CJI would be required to declare assets to the President. Judges failing to declare their assets (in 30 days time) or providing a false declaration would be deemed to be misconduct and misconduct is a ground for removal of a judge.

But controversy was with clause 6 of the bill which prohibited such declaration to be made public. Clause 6 of the bill reads as follows: "notwithstanding anything contained in any other law for the time being in force, a declaration made by a Judge to a competent authority shall not be made public or disclosed, and, shall not be called for, or, put into question by any citizen, court or authority, and, save as provided by sub-section 2, no Judge shall be subjected to any enquiry or query in relation to the contents of the declaration by any person."

This exclusion was opposed tooth and nail by most political parties including some from the ruling Congress. Parliamentarians termed the move as violating the Constitution and the RTI Act. Arun Jaitly of BJP made a frontal attack on the government. Drawing a comparison between the declaration of assets and liabilities of the aspiring MPS and MLAs with that of the judges, he said if the candidates contesting elections are to file information relating to the assets and liabilities under the constitutional provisions, why cannot be the judges? He continued by saying “there cannot be two interpretations of article 19 (that gives fundamental right to citizen to know)”. Ms Brinda Karat of CPI-M said the bill violates the equality of all citizens and the basic feature of Constitution. Rajya Sabha MP Ram Jethmalani termed it as a "conspiracy of corruption” so on and so forth.

On one hand while the MPs opposed the bill, the higher Judiciary welcomed in its totality. Giving his response on the bill, CJI K G Balkrishnan said “We [the judges] welcome it. We only wanted it”. Commenting on keeping the same information out of the purview of the RTIA, he said “We do not want the judges to be harassed.”

However, due to stiff opposition from the opposition parties Law Minister M Virappa Moily did not introduce the bill.

Two fundamental questions arose. One, whether such exclusion would stand the test of Constitutionality, and two, if the members of judiciary would be vulnerable to harassment by such disclosure which will affect its independence.

A B C of the Constitution forgotten
Whenever there is any controversy over the issue of disclosure, transparency and right to know the reading of article 19 of the Constitution will provide a clear yardstick of measurement. Article 19 (1) (a), which is in the part III of the Constitution dealing with various fundamental rights (FRs), reads “All citizens shall have the right to freedom of speech and expression”. This freedom of speech is based on the foundation of freedom or right to know. Fundamental Rights under our Constitution are not absolute and the Constitution itself very clearly spells out the basis on which the State can impose reasonable restriction on the FRs. State here means both the legislative and executive organs. Therefore, suppose the Parliament passes some law to curtail the fundamental right of the citizen to know, it must be on the basis laid down in article 19 (2). The basis for imposing reasonable restrictions are: defamation, contempt of courts, decency and morality, security of state, friendly relation with foreign states, incitement to an offence, public order and maintenance of the sovereignty and integrity of India.

Therefore, the Law Minister Moily must explain to the nation on which of the above mentioned eight criteria laid down by the Constitution did he find ground defending his case of keeping judges’ assets secret from the public glare.

Despite the risk of repetition, it may be noted here that the right to information is not the result of any judicial innovation made by the Supreme Court or High Courts or anything that has been doled out of sympathy to the citizen of this country by the Parliament. It is a fundamental right enshrined in the Constitution that has only been asserted by the higher judiciary in different progressive judgments and finally operationalised by the Parliament in form of RTIA, 2005.

Public statements have been issued from time to time by Honourable CJI K G Balkrishnan, who has been consistently arguing in favour of keeping the higher judiciary out of the purview of RTI, e.g. “no self respecting judge will accept compulsory declaration” (05/02/2007, The Hindu), "The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities" (20/04/2008, TOI), “We do not want the judges to be harassed.” (26/07/2009, The Hindu) all of which are spoken in context of asset declaration.

These statement and apprehensions take us to the second question if the independence of the judiciary is affected by this disclosure.

Would disclosure affect the independence of Judiciary?
The higher Judiciary, namely the Supreme Court and the High Courts have been given the position of eminence in the India Constitution as they shoulder very important responsibilities. The SC and HCs have two important and fundamental roles (apart from others) to play which are quite vital for survival of the democracy. First, they are the guardians and protector of the liberties and fundamental rights of the citizen of India. Second, they are the interpreters of the Constitution. For this reason necessary and adequate care has been taken by the Constitution maker to lay down certain provisions in clear and unambiguous terms to protect the Judiciary from any influence and interference by anybody or any institution. Their independence is sacrosanct and has to be protected at any cost. In order to ensure this, the Constitution provides that (a) the judges will be appointed by the President in consultation with the CJI etc (b) the judges have fixed tenure in the office and can be removed by the President on the grounds of proved misbehaviour and incapacity only after both the houses of Parliament pass a motion characterised by a complicated procedure of two third members present and voting. Till date no judge has been removed by Parliament. (c) their salaries are charged from the Consolidated Fund of India (non-votable part of budget); salaries and other service conditions cannot be varied at his/her disadvantage during the tenure of the judges (d) discussion about the conduct of the judges is forbidden in central or state legislature (e) absolute immunity to a judicial officer from a civil proceedings for any acts done in discharge of his/her official duty (f) power of contempt of court to protect itself from any malicious criticism and to enforce implementation of its decree etc (the last two are given to any judicial officer or court, not only to SC and HCs) .All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state or from any individual. In this context, eminent Jurist Fali Nariman opined that the protection provided to the judges under the Constitution were sufficient to protect them from the disgruntled litigants sometimes making allegations.

Therefore apprehension that judges would be harassed if their assets and liabilities are made public lacks any good basis. Taking several such pleas, the Parliament attempted by necessary legislation to undo the effects of the judicial pronouncement done in March 2002 for disclosure of assets, liabilities, educational qualification and criminal antecedents by the candidates contesting Parliament and Assembly elections. But in a landmark judgment delivered in March 2003 by a three judge bench, the SC asserted back and upheld the citizen’s right to know under article 19 (1) (a) and declared the amendment to Representation of People’s Act (RPA) null and void. Justice Shah, while hearing the case, gave the opinion that “…as the Supreme Court had held that a fundamental right guaranteed under Article 19(1)(a) allowed the voter to know the antecedents of a candidate, Parliament cannot enact a law taking away this right through Section 33B of the RPA. It was underlined that the Union of India did not show how this Section could be saved under Article 19(2).” (Mar 29 - Apr 11, Frontline). Same logic applies here too. Neither the Parliament nor the Courts can take away the right of citizen to know the assets and liabilities of the Judges, who are very much public servants and get salary from the Consolidated Fund of India, the coffer filled up by the tax payers’ money. Such declaration would rather cleanse the Judiciary of alleged corruption and will enhance its credibility.

Progressive voices to include judiciary under the purview of RTI have also come from former CJI Justice J S Verma (January 2007) and the Parliamentary Standing Committee on Personnel, Law and Justice (April 2008) in favour of transparency in the assets of the judges. In the latest strike in favour of judicial accountability, the chief architect of asset declaration J S Verma recently, in an article “CJI, please declare my assets” in India Express on 12th August 2009 urged the current CJI to make his assets public that he had disclosed during his tenure as CJI.

The possible implications
The PMO recently denied providing information about the assets of the central Ministers under RTI citing the same reason that the SC had sought: documents held in fiduciary relationship. The Judges bill was circulated among the Judiciary before introducing in the Parliament and it is due to their objection that clause 6 was incorporated, claimed Arun Jaitly. All these developments created situations of dangerous implications. The higher Judiciary is supposed to protect the fundamental rights of the citizen from the possible aggressions by the executive and legislative organs of the state. The history of Indian judiciary suggest, barring probably during the period of emergency (from 1775 to 1977), the higher judiciary has risen to the occasion to meet these mandates of Constitution. It could not be more unfortunate than when Judiciary apparently seeks favour from the executive as alleged by Ram Jethmalani , who said “What this Bill does is, it creates a suspicion in the public mind that the Judiciary is seeking favours from the Executive”. Moreover, once the Judiciary is made immune from RTIA, then many other requests from various public agencies of the state will follow as has already been done before too (UPSC, CBI, Delhi metro railway sought exemption from RTI in 2007). Magsaysay award winner and RTI activist Arvind Kejriwal very rightly termed the proposed law as the ‘first nail in the RTI coffin’.

Had the bill been passed in that controversial form, it would have been challenged by somebody or other in the Supreme Court or any of the High Courts. But this would have created quite a tricky situation where such court will sit on judgement over a case where it itself is a party! This would violate the principles of natural justice.

Independence of Judiciary would have been eroded
Legalising secrecy of the assets of the Judiciary would actually have eroded the independence of the Judiciary instead of strengthening it as was argued by some. Suppose the government get the judges bill passed in the Parliament keeping the details of judges’ assets in closet, and a petition comes before the SC/HCs to hear on the PMO’s denial to disclose assets of the ministers; what will the courts do? They would have been left with no options but to reciprocate the gesture of the government and rule in their favour. It could not set one standard for itself and one for the ministers. Thus in an apparent attempt to bring a (rather wrong) balance between the right to know and independence of judiciary, the country would have lost the both.
It would have been probably among very few instances where all the three organs of the state namely then Executive, the Judiciary and the Legislature put their hands together to protect their parochial interest but certainly putting the death nail on the citizens’ rights and to the democracy. Thank to the system of checks and balances in Indian democracy, this did not happen.

Thanks to the courage of the Karnataka High Court judge D V Shylendra Kumar who openly challenged the CJI’s authority to speak on behalf of all the judges of the higher judiciary. Justice D V Shylendra Kumar and Punjab and Haryana High Court judge K Kannan suo motu declared their assets, which brought about real pressure on the judges of the Supreme Court to take a stand on the issue. While on one hand this reflects the strength of Indian Judiciary and Democracy, the persistent stand of the CJI against disclosure has apparently shaken the unflinching faith of the people on the highest Judiciary of the country on the other. The Campaign for Judicial Accountability and Reforms (CJAR) led by Adv Prasant Bhusan has been doing a commendable job on the subject.

HC says CJI is under RTIA
Bringing rest to all speculations on how the HC would rule on the case where the order of the CIC was challenged by none other than its big boss-the Supreme Court, the single judge bench of Delhi HC delivered its order, without any fear or favour, on 2nd September 2009 upholding the ruling of the CIC and disagreeing with the line of argument made by the Solicitor General GE Vahanvati appearing for SC. It ruled "The CJI is a public authority under the Right to Information Act and the CJI holds the information pertaining to assets declaration in his capacity as Chief Justice. That office is a public authority under the Act and is covered by its provisions". It went on to add that "Declaration of assets by Supreme Court judges is information under Section 2 (f) of the RTI Act. The information pertaining to declaration given to the CJI and the contents of such declaration are information and subject to the provisions of the RTI Act". The timing of ruling could not have been better sequenced. It came almost in a few days after the judges of the Apex Court agreeing to declare assets to the public. This almost has brought to rest one of the longest drawn controversies in Indian Constitutional history.

Conclusion
Transparency is anti thesis to corruption. As India’s poverty situation stand today, about 230 million (UNWFP, 2009) people go to bed in empty stomach every night. Apart from faulty policies of the successive governments, corruption spread over in almost all public institutions has been a major cause for such a situation. The Judiciary, which has been in the forefront in promoting transparency and fighting corruption, instead of shutting its doors, should once again set examples by opening up itself for public scrutiny. It should not only declare the assets of judges, but also disclose other necessary information and put them in public domain. It should refrain from going ahead with its decision to appeal in a division bench of the Delhi HC against the decision of the single judge bench ruling on judges and RTIA. As the Prime Minster recently suggested the Judiciary wipe out the tears of the waiting litigants by clearing the backlog of cases, such issues are real challenges for the judiciary to handle. By proactively dealing with more such pressing issues it can live up to the expectation of the people.
…………………….
The author is a freelance journalist based in Orissa. He can be contacted through e mail: 2006pradeep@gmail.com

Where is NREGS heading?

This piece was carried in InfochangeIndia (www.infochangeindia.org) in October 2009

The web link: http://infochangeindia.org/200910097974/Governance/Features/Where-is-NREGS-heading.html

Where is NREGS heading?

By Pradeep Baisakh

The biggest danger the National Rural Employment Guarantee Scheme faces is that the people it is meant to benefit will lose faith in it. In far too many instances guilty officials are not punished, social audits are not followed up, payment of wages is delayed and violence against those seeking to make the scheme work goes unchecked

The National Rural Employment Guarantee Act (NREGA) is believed to be one of the main reasons for the UPA government’s return to power in the 2009 general elections. The legislation that guarantees 100 days of employment to every rural household that asks for it, while at the same time ensuring that the employment builds infrastructure for villages, is undoubtedly path-breaking. The manner in which it has been implemented, though, has been unsatisfactory in many ways.

Some of the criticism was heard on May 14, 2009, during the observance of the Lalit Mehta Sahadat Divas in Daltonganj, Jharkhand, the first death anniversary of Lalit Mehta. Mehta was allegedly murdered for his crusade against corruption in the National Rural Employment Guarantee Scheme (NREGS).

Activists from across the country discussed issues such as increasing NREGA-related violence, freezing of wage rates for NREGS by the central government, delayed payment of wages, centralised planning, and poor transparency provisions and grievance redressal mechanisms.

Delay in wage payment
In many parts of India, it is necessary to adhere to the principle of ‘aaj ka kaam aur aaj ka bhoogdaan’ (today’s work and today’s payment) as the poorest section of the rural populace, who are daily labourers, eat only after they get their daily wage at the end of the day. It is for this reason that NREGA provided for at least part payment of wages on a daily basis.

However, in most cases, this provision has remained only on paper. In any case the final payment of wages must be made within seven days and certainly not later than 15 days. This too, is not the uniform practice.

When NREGS began three years ago, payment was to be made in cash to the workers. This practice malfunctioned on a large scale since it was left to individuals in authority to make full and timely payments, which they rarely did. The practice of paying wages through banks and post offices was then started, in the belief that this would be a foolproof system since payments went directly into the bank accounts of the workers.

Social workers, scholars, activists, and academicians from Chhattisgarh, Uttar Pradesh, Madhya Pradesh, Orissa, Jharkhand, Maharashtra, Gujarat, Tamil Nadu, Kerala, Rajasthan and West Bengal who had gathered at the Daltonganj meeting, however agreed that delayed payment is still a serious issue in all these states, though the situation in Rajasthan has improved.

They warned that people would lose faith in NREGS if this most vital element in the programme is not addressed. Sharing his experiences about the severity of the problem in Jharkhand, Prof Jean Drèze, development economist, said, “People in Khunti block (Khunti district) have not received payment for three months, so they are tired.” People in Jharkhand and Orissa reportedly have not received their wages for more than a year. Drèze added that people who previously wanted NREGA are now turning away from it.

The administration has been against NREGS from the start. But when the people too begin to turn away from it, it leads to a very dangerous situation. In Jharkhand, the state administration has had to face mounting pressure to act firmly to expose the widespread corruption in NREGS which was revealed during a series of social audits. The revelations led to violence and even the murder of those like Lalit Mehta who exposed the corruption.

Workers from the Saiyapur gram panchayat in Sitapur district of Uttar Pradesh have not received wages for work done in December 2008. Consequently, hundreds of labourers from various districts of Uttar Pradesh demonstrated in front of their respective block offices in June 2009 and demanded immediate payment of the pending wages. The method of payment has undoubtedly to be streamlined since many agencies are involved. Money has to be released from the district administration into the accounts of implementing agencies, namely the blocks and gram panchayats (GPs). The pay order in the name of the worker is then transferred to the branches of banks or post offices where the workers have their accounts, and simultaneously payslips have to be issued to the workers. Before all this, junior engineers have to complete measurement of the work done on the basis of which the wage is fixed.

Schedule II of NREGA provides for payment of compensation under the Payment of Wages Act, 1936, for any delay in paying out wages. This provision must be enforced strictly.

On June 6, 2009, Rs 3.48 lakh was paid in compensation to workers in Khunti district (Rs 2,000 per head) of Jharkhand under the Payment of Wages Act, 1936 (POWA). This was done after Jean Drèze and Reetika Khera of the Delhi School of Economics wrote to the governor of the state, Syed Sibtey Razi and the case was submitted to the assistant labour commissioner. Penalties were also imposed under Section 25 of NREGA on the erring officers. After the introduction of the bank payment system, the implementing authorities, particularly at the panchayat and block levels, are finding it difficult to manipulate the system. They thus delay the release of the payment. Invoking the provisions of the Wage Act strictly and consistently alone can stop this practice.

The bank system is not without its faults. Banks claim that they do not have the staff required to make payments to the large number of NREGA beneficiaries. If the claim is genuine, it should be addressed. The government should also consider bringing banks and post offices under the disciplinary jurisdiction of NREGA. The state governments while signing agreements with these payment agencies should incorporate this vital element.

Wage freeze by central government
On January 1, 2009 the Ministry of Rural Development (MoRD), issued a notification freezing NREGS wages state-wise at the existing rates for example, Rs 100 for Rajasthan, Rs 80 for Andhra Pradesh, Rs 92 for Jharkhand, Rs 70 for Orissa etc. There have been two developments since then. One, the minimum wage under NREGA has been increased from Rs 60 to Rs 100 as provided in the central budget, and two, the Andhra Pradesh High Court has suspended the January 1 notification. Despite these developments, the underlying principle deserves debate.

The decision to freeze NREGS wages means that the states cannot now increase the minimum wage rate in their own territories. Though fixing minimum wages is in the state’s jurisdiction under the Minimum Wages Act, 1948, section 6 of NREGA gives power to the centre to ‘specify’ NREGS wage rates, which could be different for different states, provided it is not less than Rs 60 (now Rs 100).

Since the centre bears 90% of the expense of NREGS, its burden would increase should states begin to arbitrarily hike the minimum wage, which the centre fears it may do as a populist measure. In fact, many states like Bihar, Jharkhand, Rajasthan, and Utter Pradesh did revise the minimum wages for unskilled agricultural labourers after NREGS came into force. Some states like UP have even doubled it from Rs 58 to Rs 100.

However, the revision of minimum wages and schedule of rates (SoR) of agricultural labourers has been long overdue and NREGS provided the opportunity for state governments to do some justice to unorganised daily labourers. The proposition that states may arbitrarily increase the wage rate may not be a sound one as the increased rate would apply to all work undertaken in the state and would have financial implications for it. Moreover, the criteria for determining wage rate, like the food, clothing, housing, fuel/lighting etc requirements, vary from state to state. Therefore the states are the appropriate authority to determine wages as they understand the local economy.

According to sources, when the wage freeze was discussed in a special meeting of the Central Employment Guarantee Council (CEGC) in July 2008, every non-official member opposed it. Despite this, the government went ahead with the plan six months after the meeting, in January 2009, without any intimation to the CEGC members. This is understood to have been done under pressure from the farmers’ lobby.

Criticising the decision of the central government, Annie Raja, member, CEGC, said: “While on the one hand the salaries of government employees are increased under the 6th Pay Commission, freezing the minimum wages of poor daily labourers who are already reeling under the sharp price rise is objectionable.”

The argument that it will put a burden on the centre has less force when one considers that allocated funds for NREGS have not been used to the full. Only 73% of the allocated funds for 2006-07 were used, 81% for 2007-08 and 75% for 2008-09. (Source: http://www.nrega.nic.in/)

Nor has the government provided the hundred days of employment guaranteed under the Act. In 2008-09, a total of 48 days’ work was provided to 4.5 crore households. To therefore insist on freezing the minimum wage seems unethical.

Social audits: losing faith
It is mandatory to conduct social audits of all NREGS works. Several audits have consequently been held in different parts of the country usually with the help of research and civil society organisations.

While a social audit is undoubtedly the right way to make the implementing authorities accountable to the people, the key to its effectiveness is the action taken on the findings of the audits.

Action has been taken against erring officials and the money siphoned off has been recovered in Andhra Pradesh, where the audit is owned by the state, and in Rajasthan, due to pressure from a strong civil society. But by and large, the audits have not had the desired effect.

In Orissa, for example, the state administration promised to act on the findings of a series of social audits conducted by the National Institute of Rural Development (NIRD) in association with civil society groups in early 2008. But more than a year later, no action is forthcoming.

In Jharkhand, an independent survey by the G B Pant Institute revealed several irregularities in Palamu district in May 2008. However the government inquiry that followed submitted a report contrary to the survey findings. If this is the attitude of the administration to the findings of social audits, people will lose faith in the process. The resolution passed by the gathering in Daltonganj demanded that a joint inquiry should be held by the social audit team and government officials and the government should act in a time bound manner on the verifications done by this joint team.

Violence to silence voices against corruption
In Orissa, like in other state, NREGS was welcomed by people and civil society. Spreading awareness and carrying out social audits was essential to the success of the scheme. Several social audits (about 100 till mid 2008) were conducted throughout state with the active participation of the villagers.

However, in the past one year there has been a marked decline in civil society participation in NREGA. The reason, says Rajkishor Mishra, state adviser to the Supreme Court Commission on Right to Food, is “indiscriminate violence by the contractors, implementing officials and their hired goons on the activists and people and no follow-up action from the administration on the findings of social audits.”

Bidyut Mohanty, who has done pioneering work in conducting social audits in Koraput district of Orissa adds, “People are frustrated as the government did not address the issues raised by them during the social audits of NREGS works.” Somay Gagarai, a political activist from Jharkhand, Narayan Hareka, a PRI member from Orissa, Langtuk Phangco, a union leader from Meghalaya have been murdered for their activism on NREGA. Jharkhand has witnessed four murders, and three suicides allegedly due to the same cause, and several incidents of violence directed against activists and the people.

Anis Vanaik, a researcher from Jawaharlal Nehru University, compiled a list of 40 cases of NREGA related violence from 11 states, which showed that apart from murders and suicides, the people and activists have been beaten by officials and contractors and false cases have been indiscriminately registered against them by the administration. Neyamat Ansari and Bhukhan, two social workers of Gram Swaraj Abhiyan, Jharkhand, who mobilised people for the Lok Adalat held on NREGA by the Jharkhand government in Latehar district in February 2009, were later framed in false cases of attempting to murder a forest guard and put in jail for six days. State governments have been apathetic in dealing with complaints relating to such violence. Following the hostile investigation report submitted by the district collector and superintendent of police of Palamu district in Lalit Mehta’s murder, the case was handed over to the CBI in June 2008 after pressure from activists throughout the country. But the CBI has not done much in the last one year. It has met Arpita, wife of Lalit Mehta, and some of his co-workers. Disappointed at the slow pace of the CBI investigation, Mr Balaram, the state adviser to the Supreme Court Commission on Right to Food says, “The investigation should be completed and the murderers of Lalit should be nabbed soon. Otherwise people’s faith in the system will be lost.”

The congregation at Daltonganj demanded early completion of the CBI inquiry, punishment for Lalit Mehta’s murderers and unconditional withdrawal of false cases against the activists. The statement by the new union rural development minister, C P Joshi, that security to the NREGA volunteers is his top priority comes as some kind of reassurance for activists.

Grievance redress, transparency, accountability
In November 2007, Prof Jean Drèze and Annie Raja, both members of the Central Employment Guarantee Council had submitted 20 complaints on behalf of the people of Orissa to the commissioner-cum-secretary, Panchayati Raj Department, who is the state programme coordinator for NREGA. He had given an assurance that action would be taken in a month’s time. Yet, in March 2009, when activists wanted to know what action had been taken, the programme coordinator asked for the copies of the complaint to be re-submitted as they could not be found!

At the meeting in Daltonganj, activists from different states had similar tales to tell about the manner in which the grievance redress system had been reduced to a mockery. In fact, the mechanism itself needs to be changed.

The block development officer (BDO) is the complaint-receiving authority for any grievance at the panchayat level, the district collector for complaints against block officials and the state programme coordinator for complaints against the district collector. What is missing here is an independent final appellate authority like the State Information Commission under the Right to Information Act. For this, the law will have to be amended.

The central government has now proposed to create an ombudsman at the district level and has appointed an expert committee under Moolchand Sharma, vice-chairman, University Grants Commission, to examine the institutional mechanism for establishing such a position. As a survey by the G B Pant Institute in May-June 2008 found, provisions of transparency and accountability too are poorly implemented. The survey was conducted in the five states of Bihar, Chhattisgarh, Madhya Pradesh, Rajasthan and Uttar Pradesh. Rajasthan was the only exception.

The draft transparency and public accountability rules formulated in April 2008 (http://nrega.nic.in/circular/draft_transparency_rules.pdf ) by the working group constituting Karuna Akella, Nikhil Dey, Jean Drèze, K S Raju, Aruna Roy and others, convened by the rural development ministry, made very specific recommendations on transparency and accountability, grievance redress and social audits.

Weak penalty clause
To ensure that implementing agencies do their job, punishments for violations should be severe. The Right to Information (RTI) Act is taken much more seriously by government officials because the penalties for default are high –Rs 25,000 for not providing the right information on time as against Rs 1000 under NREGA. The action - or lack of it - that attracts the penalty is also clearly spelt out in RTI and is vague in NREGA.

That is the sole reason why the penalty provision under section 20 of RTI has been invoked in innumerable cases at central and state level while the corresponding section 25 of NREGA has been invoked just three times (in Karon block of Devghar district, in Manika block of Latehar district and in Khunti district).

With a renewed mandate in its favour, due, it is said, largely to its pro-poor policies like NREGS, addressing the above issues should be a priority for the UPA government. To have a well meaning scheme falter because of bad implementation would be a tragedy indeed.

......

Box Item:
Life after Lalit “I am not repentant for the work done by Lalit,” says Arpita, wife of Lalit Mehta, who was allegedly murdered to stop the work he was doing in unearthing corruption in the National Rural Employment Guarantee Scheme (NREGS). She was replying to a query about whether she felt her husband should not have taken up work that was to prove so dangerous. “I am proud of Lalit who died a hero’s death while fighting for the interests of the poor people,” adds Arpita. Lalit was an engineer in a programme called ‘Sukha Mukti Abhiyan’, a government-NGO initiative. He married Arpita Tirkey, a co-worker in 1999 despite opposition from both families on account of caste differences.

In 2000 they started Vikash Sahayak Kendra which was later renamed Gram Swaraj Abhiyan and worked towards village infrastructure development.

His crusade against corruption in NREGS made him many enemies among contractors and officials. He was allegedly eliminated by the contractors’ lobby on May 14, 2008 while travelling from Daltonganj to Chhtrapur. The Mehtas have two sons Manish Kumar (5) and Abhisek (2). Arpita is a school teacher now and responsible for the family. “My elder son understands that something has happened to his father, but the younger one cannot know; he still waits for his father to come,” says Arpita.

“One thing that worries me is the future of my kids. Had he been alive, he could have guided them properly.” If they wished to tread the same path as their father she would not stand in the way. “I will rather persuade them to be bold and dedicated like Lalit,” she says bravely.

(The author is a freelance journalist based in Orissa)
Infochange News & Features, October 2009

Demanding action for a better life

The article came in the "Grassroots" in September 2009 issue

Demanding action for a better life

Dreams are dashed and life is tough for single woman who test positive since society deprives them of their basic rights

Pradeep Baisakh

Sunita Pati (name changed) of Orissa has nurtured several dreams for her twelve year old elder daughter Babismita-that she would do higher studies and prove herself to be a consequential person in future; she marry and lead a blissful life…But, she has never dared to do so for younger daughter, Ipsita (name changed), who is only seven years old. Whenever Ipsita demands that she would, like her elder sister, also read a lot, take up a good job, marry and have kids etc, her mother would never encourage her to dream. Why such discrimination among two daughters? Only mother Sunita knows the agony. Ipsita has been tested HIV+, which she has inherited form her parents and nobody knows if she would actually live so long to fulfil her dreams. The mother therefore has become cautious not to teach her to be ambitious about her future. The elder daughter somehow has not inherited HIV from her parents.

Sunita, like any other women in her village, was leading a smooth and happy life with her husband and these two daughters. Sky seemed to have fallen on her when her husband died due to the effect from HIV-AIDS before about eight years. Her husband was working as a private security in a bar in Mumbai. He had carried the virus through unprotected sex practices with commercial sex workers there (Which he admitted to his wife during last stage of his life). After his death, Sunita was separated from her in-law’s family in the village in Balasore district of the state. She was only given two rooms to stay by the in-laws but no livelihood support. For herself and her children’s survival she has been working as a daily labourer near her neighbours and villagers. But the life started becoming real hell when she was diagnosed as HIV +ve in June-July 2008. Her house was broken by her in laws leaving her no option but to take temporarily shelter, along with her two daughters, in the open veranda of a villager’s house. Her last hope was dashes when her younger daughter also diagnosed HIV+. Now she leads a life of unspoken misery. Nobody offers her any work after they knew that she is tested positive. With no help coming from the government also, she has absolutely nowhere to go.

Hafiza Beba (name changed) from Balasore district of the state also has lost her husband due to AIDS. She and her seven year daughter have also been tested HIV +ve. She has also undergone the fate that Sunita went through-humiliated, harassed by the in-laws and finally shown the door. In both the cases, the victims were not given their share of property from their in-laws. Sunita approached to the Police to check the ongoing harassment on her and to get her property, while Hafiza took the matter to the local Panchayat, but to no avail. Both these singled out women with children have been harassed and stigmatised for no fault of theirs.

Several such people, who have been tested HIV+, undergo highly traumatised life which is not quite known to the people in general. In a two days Women’s conclave held in Bhubaneswar, Orissa just before the Assembly election in April 2009, people living with HIV of various categories shared their agonies and put forward their demands to the political parties for inclusion in their manifestos. Different categories of such people are: single women with HIV, commercial sex workers, orphan and vulnerable children, Injecting Drug Users (IDU), sexual minorities (eunuchs and men having sex with men-MSM). The conclave was facilitated by Action Aid, the NGO that spreads awareness on AIDS and helps the affected people to know their responsibilities to the society and demand for their rights.

The government has made some rather insufficient arrangement for this category of people. Under Madhubabu Pension Yojana of the state government, such individuals get two hundred rupees a month and National AIDS Control Society (NACO) provides free Anti-Retroviral Therapy (ART) in some identified hospitals in the state where such therapy is administered. ART prolongs the life period of the HIV patient by improving the functioning of immune system.


The ground reality is quite grim as far as the needy being benefited by such schemes and provisions. It has been found that many already declared HIV+ people have not been covered under Madhubabu Pension Yojana. HIV mothers are not getting doctor’s and health workers’ support during delivery as the latter fear that they might get HIV. There are complaints that the children of HIV affected mothers are harassed and discriminated by the health workers and doctors when they are administered various immunisation programmes like BCG, Polio etc. They do not touch the children out of fear. Ostracised by the society, the single HIV +ve women face enormous problems to earn their livelihood like Sunita. Commercial sex workers having HIV are allegedly sexually harassed by the police, the local miscreants and even doctors. The minority sex groups like eunuchs also complained of being humiliated by one and all and deprived of every right due to their problem in identity.

The women’s conclave demanded to increase the amount of pension under Madhubabu Yojana from rupee 200 to rupees 500. The commercial sex workers exhorted that legalising prostitution can only protect them from various types of harassment they face. At the same time, they also told that they would leave this profession if are properly rehabilitated. Stay home should be created for housing affected single women and women with small children who have been deserted by their families and society; government should take proactive steps for early settlement of the property claims of the affected people in Fast Track courts; ART centres should be created n all the districts; (currently there are only three centres in Orissa and 197 the whole country) and for availing second line ART in Orissa. Second line ART is administered to them who have developed resistance to the first line ART. It urged that the government should undertake comprehensive policy measures for providing social security to the affected persons.

Judges under scrutiny

This article was carried in India Together on 25th September 2009

The web link: http://www.indiatogether.org/2009/sep/rti-judges.htm

Judges under scrutiny

Despite recent concessions to be subject to Right to Information Act, the Supreme Court's attitude to the sunshine law remains a matter of concern, writes Pradeep Baisakh.

25 September 2009 - In an apparent climb-down, the Supreme Court agreed on 11 August 2009 to disclose information under the Right to Information (RTI) Act what action has been taken by the Chief Justice of India (CJI) on a complaint against some judges of the Allahabad High Court. Earlier, the apex court had declined to provide this, claiming that such information is not available with its official registry. Its reversal of that stand is a welcome change of view.

Nonetheless, the overall attitude of the Supreme Court toward the sunshine law continues to remain a cause of concern. In the most recent development where a single judge bench of Delhi HC ruled that office of CJI comes under RTIA, the SC is planning to appeal against the order in a division bench of the same court.

Don't look inside our house
P K Dalmia of Noida, Uttar Pradesh had sought information from the Public Information Officer of the Supreme Court on what action had been taken on three of his complaints made in 2007 and 2008 against the judges of Allahabad High Court on some matter of embezzlement. The PIO replied in negative as information relating to complaints against High Court judges were not part of the routine SC registry. Though such information was available with the 'office of the Chief Justice of India (CJI)', the PIO neither attempted to get it from there nor transferred the RTI application to that office. Dalmia appealed to the Central Information Commission (CIC), which ordered the PIO on 24 February 2009 to provide the information sought by him. At this stage too, the Supreme Court did not comply; instead, this order of CIC was challenged in the Delhi High Court.

During the hearing before the High Court, the Attorney General Vahanvati (appearing on behalf of the Supreme Court) agreed to provide the information sought. However, he maintained that he does not accept the correctness of the CIC's judgement on the matter.

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court's view on the 'personal capacity' of an office-holder. This case has similarities to the much-highlighted case of S C Agrawal, where the applicant had sought information from the Supreme Court whether any declarations of assets have been made by the judges of the Supreme Court and the High Courts to their respective Chief Justices, as expected under the resolution passed by the All India Judges Conference in May 1997. The Supreme Court declined to provide this information, arguing instead that the May 1997 resolution was an 'in-house mechanism'. Moreover, the court took the view that assets declared by judges to their respective chiefs, were given 'voluntarity', and received in the 'personal capacity' of the Chief Justices (implying, therefore, that they were not official documents subject to RTI).

Even an order by the full bench of the CIC delivered in January 2009 could not change the Supreme Court's mind on this - instead, the SC filed a writ petition in the Delhi High Court, and obtained a stay on the order. Since then, the CJI has reversed himself (see below).

Both these cases center around a key legal issue, namely, whether the 'Office of Chief Justice of India, in his capacity as Chief Justice not sitting in a Court" is subject to the application of Right to Information Act, 2005. The Information Commission's view was that the Chief Justice is a custodian of the information available with him, and that it is available for perusal and inspection to every succeeding office-holder. Therefore the information cannot be categorized as "personal information" even if the CJI holds it in his personal capacity.

Legalising secrecy
The proposed legislation that rocked the upper house in recent monsoon session of Parliament was the "The Judges (Declaration of Assets and Liabilities) Bill, 2009". The bill apparently aimed at brining transparency to the functioning of the higher judiciary by providing for declaration of assets and liabilities by the judges. Under it the judges of Supreme Court would declare their assets to the Chief Justice of India (CJI) and judges of High Courts to the concerned Chief Justice, the CJI would be required to declare assets to the President. Judges failing to declare their assets (in 30 days time) or providing a false declaration would be deemed to be misconduct and misconduct is a ground for removal of a judge.

But clause 6 of the draft bill prohibits such declaration from being made public. This exclusion was vehemently opposed by most political parties, as well as some legislators from the ruling Congress. Parliamentarians termed such a move violative of the Constitution and the RTI Act. Arun Jaitly of BJP wondered why, if candidates contesting elections are to divulge their assets and liabilities under the constitutional provisions , why cannot the judges; and argued that there cannot be two interpretations of Article 19 that gives fundamental right to citizen to know. Brinda Karat of CPI-M said [the proposed Bill] violates the equality of all citizens, a basic feature of Constitution. Noted Constitutional expert and Rajya Sabha MP Ram Jethmalani termed it as a "conspiracy of corruption".

It would be pertinent to put here what exactly clause 6 of the bill reads. It says, "notwithstanding anything contained in any other law for the time being in force, a declaration made by a Judge to a competent authority shall not be made public or disclosed, and, shall not be called for, or, put into question by any citizen, court or authority, and, save as provided by sub-section 2, no Judge shall be subjected to any enquiry or query in relation to the contents of the declaration by any person."

The higher Judiciary welcomed the bill in its totality. Responding to the bill, CJI K G Balkrishnan said "We [the judges] welcome it. We only wanted it". Commenting on keeping the same information out of the purview of the RTIA, he said "We do not want the judges to be harassed."

Public statements have been issued from time to time by the CJI, who has been in forefront in advocating the view of keeping the higher judiciary out of the purview of RTI, e.g. "no self respecting judge will accept compulsory declaration" (05/02/2007, The Hindu), "The Chief Justice is not a public servant. He is a constitutional authority. RTI does not cover constitutional authorities" (20/04/2008, TOI), "We do not want the judges to be harassed." (26/07/2009, The Hindu) all of which are directly or obliquely concerned to the asset declaration case.

Since then, however, amidst views from some judges themselves that declaring their assets publicly is necessary, the Chief Justice has reversed himself owing to a unanimous decision taken by all the SC judges; now the Court will place the statements of assets on its web sites. Whether this amounts to accepting the jurisdiction of the RTI or if any action will be taken for non-declaration of assets, is unclear.

Disclosure and judicial independence
The second concern that bears examination is this: "will greater scrutiny of judges affect their judicial independence, or will scruinty become a tool of harassment by the public or by vested interests?". I think not.

The SC and the High Courts already enjoy numerous protections to ensure that they are not unduly pressured, whether by other branches of government or by the public. The Constitution provides that the CJI will be consulted in judicial appointments, that judges will have guaranteed tenure, their salaries are not voted upon, their conduct cannot be discussed in legislatures, and they have absolute immunity from civil and criminal proceedings for acts done in discharge of their official duties. They also hold the power of 'contempt of court' to protect themselves from any malicious criticism and to enforce implementation of their decrees.

All these provisions make the higher judiciary immune from interference from legislative or executive organs of the state and also from any individual. Eminent jurist Fali Nariman has rightly said "If only the judges had relied on the Constitution of India to protect them, as when they decide individual cases, and disgruntled litigants sometimes make allegations against them, they would have had no need for additional protection from government or from Parliament". Therefore any apprehension that judges would be harassed if their assets and liabilities are made public is only superfluous.

And among judges themselves, as we saw recently, there is divided opinion. Even earlier, progressive voices to include judiciary under the purview of RTI have come from former CJI J S Verma (January 2007) and the Parliamentary Standing Committee on Personnel, Law and Justice (April 2008).

The Judges Assets Bill would also, in all likelihood, be challenged in the courts if passed in its current form, and therefore it was wise that the government withdrew it for the moment. If the question of the constitutionality of the Bill were to be raised, it would have been uncomfortable for the justices to have sat in judgment of their own views. Instead, we now witness a compromise, by which the judges have agreed that their assets would be declared publicly on the SC's web site. ⊕

Pradeep Baisakh 25 Sep 2009
Pradeep Baisakh is a freelance journalist based in Orissa.

Winning the cashew battle in Orissa

The piece caem in Infochange India (http://www.infochangeindia.org/) in September 2009

The web link: http://infochangeindia.org/200909197952/Livelihoods/Features/Winning-the-cashew-battle-in-Orissa.html

Winning the cashew battle in Orissa
By Pradeep Baisakh

To avoid siltation of the newly constructed dams caused by traditional forms of agriculture, the tribals of the Koraput district of Orissa were persuaded to shift to cultivation of cashew and other trees and promised ownership of the land. But when the government reneged on its promise and started reaping the benefits itself, a people’s movement began that has just ended in victory after 10 long years

It took ten years of struggle by the people of Koraput district to get the government of Orissa to pass an order that ensured that usufructuary rights over cashew plantations would be handed over to the tribals who have traditional rights over such natural resources in areas under the Fifth Schedule. The spirit of women like Chandrama Honatal, a tribal woman from Koraput district kept the issue alive through the years. “Maribu sina daribu nain, dangar jami chhadibu nain” (We will die but not fear; but we will not leave our land) Chandrama Honatal had declared at a meeting in June 2007 with Orissa’s chief minister, Naveen Patnaik.

The chief minister had assured the delegation of villagers then that the government would soon hand over the usufructuary rights over cashew plantations to the tribals but it took more than a year to officially pass the order to that effect.

“Cashew plantation taken up as soil conservation measure in the catchment area of the reservoirs and those taken up under anti-poverty programmes like ERRP, RLEGP, JRY, EAS, anti-podu schemes etc would be distributed to the poor ST/SC families in the Schedule Area and MADA/cluster areas” read the minutes of a meeting chaired by the chief minister on July 31, 2008. Defayati rights would be conferred on the landless, small and marginal families belonging to scheduled tribes and scheduled castes to the extent of 2 acres per family and the beneficiary selection entitlements shall be decided in the Palli Sabha (the general body of adult members in a revenue village).

By this order, mostly tribal people from 20 out of 30 districts of the state will benefit and about 63,000 acres of land will be distributed among them. In Koraput district alone, cashew plantation on about 16,700 acres will be handed over to the people.

This order came after ten years of struggle waged by the people, particularly those from the Machhkund area (Lamtaput, Nandapur and Machhkund blocks) of Koraput district.

The issue
In the early-1950s it was realised that podu cultivation, which causes soil erosion, must stop if dams like the Machhkund and Kolab in Koraput district, Chitrakonda in undivided Koraput district, Rengali in undivided Dhenkanal district etc, are to be saved from siltation.

The Soil Conservation Department of the state government was created in 1956 with the objective of undertaking massive plantations of cashew, silver oak, and coffee among others, in the catchment areas of the dams. The local people who were doing podu cultivation on these lands were persuaded to plant the trees instead under various wage employment schemes. They were assured that such plantations would eventually be handed over to them and would give them a sustainable income. The Koraput District Gazette reiterates this promise of the government.

However, the government soon forgot its promise to hand over the plantation rights to the people, and itself sold the cashew and made good profits.

The survey settlement process, which was conducted at the same time, was faulty and did not record the rights of tribals over agricultural land that they had been traditionally cultivating. So the land stayed under the control of the government both de facto and de jure.

In 1979, the Orissa State Cashew Development Corporation (OSCDC) was created to carry on the cashew business on commercial lines by issuing annual tenders. Huge chunks of land were transferred to the corporation for the purpose, and the traditional owners were treated as encroachers on their own lands.

Guruchalan (now about 75) of Litiput village in Koraput district recalls an incident in his young days: “Once some cows strayed onto the kaju dangar (cashew land)while grazing nearby, and I went to take them back. On my way back I picked up one kaju seed. The watchman noticed it and slapped and beat me.”

Data on different divisions and areas under control of OSCDC : Please the table from the web link of the article)
Origins of the struggle
The peoples’ struggle to right this injustice began from Enugu village in the Lamtaput block of Koraput district in 1994-95 when a Vana Surakshya Samiti (VSS) was formed with the help of the forest department, by which the people of the village were given the responsibility to protect the adjacent forest and enjoy its fruits. However, due to the faulty survey and settlement process, it was not clear which parts of the forest land were under the forest department and which was revenue land. The Cashew Development Corporation, which had been issuing tenders on the forest land, refused to give up its claim. This led to a clash between the people on the one hand and the corporation and revenue and police administration on the other.

The people working as wage labourers collecting the cashew thwarted any attempt of the tender holder to employ outside labourers. A compromise was finally arrived at which allowed the people to collect the cashew and share some part of it with the tender holder to cover his investment. The people won because in this case a VSS was formed and they were united. But in other villages no such VSS was formed and the land fell under the revenue category.
However, the success of Enugu inspired people from other villages to also start taking control of their cashew dangars (land). This evoked a backlash from the corporation and tender holders who filed civil and criminal cases against people and had them arrested by the police. In 2000-01 the Dangar Surakshya Samiti was formed which was later named Dangar Adhikar Samiti (DAS) to lead a more organised struggle.

The affected people are mostly from tribal communities such as Gadva and Paraja but whole villages stood united, with dalits, backward class and other castes joining in. The DAS at village level and area level held regular meetings and collected funds to fight the battle. Gupta Panigrahi, a lawyer who was fighting cases of people in the courts, was the moving spirit behind the formation of DAS. Two other organisations, the Machhkund Basachyuta Mahasangha(a people’s forum fighting for the families displaced by the Machhkund dam) and Mahila Mahasanghas (a women’s federation of SHGs at gram panchayat level) also allied with DAS in the struggle. The Society for Promoting Rural Education and Development (SPREAD), a local NGO, played a vital role in facilitating the people’s movement.

The struggle yielded some results and in 2005, about 1500 tree pattas were issued by the Machhkund tehsildar to the people. However, these pattas were declared illegal by the government later.

Multi-pronged advocacy
Rallies and dharnas were held in front of the tehsil office, the collectorate and even the state assembly (in June 2007). Memoranda were submitted to the respective authorities demanding that the cashew plantations be handed over to the people as promised. As Bidyut Mohanty of SPREAD says, “In the tendering process, a handful of traders from Jeypore, Bilaput and Machhkund, in connivance with the officials of the corporation, are taking the whole benefit, but people are not getting anything.”

The Right to Information was used by the people, which revealed that proper procedure was not followed by the soil conservation and revenue departments when leasing the land to the cashew corporation. This meant that the corporation did not have any legal right to issue tenders. This revelation strengthened the case of the people against the corporation.

Awareness drives were undertaken by the social activists of SPREAD and the young cadres of DAS to make people aware about their legitimate claim over the plantation. This helped people wage an informed, and not just emotional, struggle. “According to PESA (Panchayat Extension of Schedule Areas) Act, the people have a right over jal, jungle and jamin (water, forest and land) in Schedule Five areas,” asserts Rama Badnaik, a young woman from the Mali community who led the movement in her village of Matamput.

Women, in fact, played a leading role in the struggle. Dasu Krisani, Chandrama Hontal and Rama Badnaik, all office-bearers of SHGs at village or panchayat level, were actively involved. The local MLA Taraprasad Bahinipati was persuaded to raise the matter in the assembly and seek response from the minister.

Revenue generated from tendering process of Cashew Corporation (See the table from the web link of the article)

The state hits back
As the people gradually took physical control of the cashew lands, the corporation and others who benefitted immensely from the tendering process (see box) did all they could to protect their interests.

Civil and criminal cases were filed indiscriminately against the people and many of them were arrested. In 2002, about 12 people, including Samara Sisa, Basudev Sisa, and Ravi Bisoi from Logum village, were arrested and put behind bars for a couple of days. Court orders were obtained to impose Section 144 of the CrPC to bar the entry of people into the plantations. On different occasions people were threatened by the superintendent of police, sub-collector and tehsildar to refrain or face dire consequences.

In order to create divisions within the struggle, dalits and other castes were given tenders of the plantations forcibly taken over by the tribals. SHGs were also offered tenders at very low cost (Rs 5,000-10,000 instead of Rs 100,000-125,000). Leaders of the agitation were offered bribes to back down. Even the local MLA Taraprasad Bahinipati, who helped facilitate meetings with the chief minister and other important ministers/leaders alleged that the corporation had tried to “influence” him.

Goons were hired by the tender holders to attack the villagers who had taken physical possession of the plantations. This led to bloody confrontations at times. In Litiput village, in 2007, Pratima Khara, aged about 65, was hit on her head with a tangi (a local weapon).

The winning strategy
Ultimately, what compelled the government to change its policy was the people taking physical control of the plantations and stopping the tender holders from reaping the cashew crop. This led to a huge loss of income for the corporation. In the last four years (2005-2008) in the Jeypore division (Koraput, Kalahandi, Rayagada and Nawrangpur districts) the income from the tendering process has gone down from Rs 85 lakh to Rs 20 lakh. Jeypore division constitutes about one-third of the total land under plantation and about one-fifth of the total income of the corporation (2004-05 data).

The loss in revenue brought the Agriculture Production Commissioner S P Nanda to Koraput in August 2007, which eventually led to the current decision of the government. With elections in the state scheduled for April-May 2009, the government found it expedient to come up with the formal order in November 2008.

On January 20, 2009 about 2,000 people gathered at Kujamba village in the Lamptaput block to celebrate the victory after the chief minister finally issued the order granting tree pattas to people.

But Ramchandra Badnaik, the current president of DAS, says “it’s a battle half won”. Now, the real challenge is how to reconcile the interests of the OBCs or general caste people in the villages who have been a part of the struggle, but who, under the current order, are not identified as beneficiaries. An even greater challenge is to renovate the plantations which have become old with new plantations and constantly maintain them and prevent deforestation.

Cashew economics
Cashew production is a lucrative business. According to Sadanand Behera, assistant manager, accounts, of OSCDC, Bhubaneswar, “In each hectare, there are at least 200 trees as per the government standard of maintaining seven metres distance between two trees. Each tree would yield at least 8 kg of cashew in the worst case.”

The market price of raw cashew varies from Rs 30-45 per kg. So, cashew from one hectare of land would fetch Rs 48,000 a year. Jeypore division has 6,796 hectares of transferred area (transferred from Soil Conservation department) alone. By this calculation, it should give an income of Rs 32 crore.

Says Dusmant Padhi of the NGO, SPREAD: “Since the trees in Jeypore division have become old, by most conservative estimates if the minimum income from a hectare of cashew land is Rs 10,000, the total income from the land under the cashew corporation in Jeypore division would amount to Rs 6.7 crore annually.”
The income of the corporation from the tendering process was Rs 85 lakh in 2004-05 - the highest in the last four years. So the beneficiaries of the rest of the money of about Rs 5.5 crore are, it would seem, all those who are involved in the tendering process of cashew plantation. The officials who sit in on the tendering process are the sub-collector, respective tehsildars, and the Cashew Corporation’s divisional manager.

The state level figure may suggest that while the official income of the corporation from tendering is Rs 4 crore, the potential income would vary somewhere between Rs 30-40 crore by most conservative estimates, and a more realistic estimate may put it somewhere around Rs 100 crore! MLA Bahinipati rightly says “A great lobby exists on the cashew issue.”

Those people who have control of their plantations are getting a good return. This serves as a great motivation for villagers in the Machhkund area, many of whom have been displaced by the Machhkund dam and have very limited sources of livelihood. For example, in Hanumal village under Lamtaput block, people have earned Rs 12 lakh in last four years (2005-08).

(Pradeep Baisakh is a development journalist based in Orissa)
InfoChange News & Features, September 2009