FROM INSIGHTS MAGAZINE TEAM
January 13, 2014
NATIONAL & SOCIAL ISSUES
According to Census 2011, the number of disabled in India amount to 2.21 percent of population that is 26.8 million. Disability activists opine the count is grossly underestimated as no. of disabled in a country on an average roughly amount to 5-6 percent of the population.
India has ratified the UN Convention on Rights of Persons with Disabilities. It requires the nations which are party to the treaty, to provide an enabling atmosphere so that disabled enjoy the status as full and equal members of the society with human rights. It enjoins the states to provide disabled friendly voting machines for their right to vote, to promote good standards of living through access to poverty reduction programs, with right to health, education and work without discrimination based on disability. It prohibits compulsory sterilization of disabled persons and their right to adopt children. It is also gender sensitive.
All the four disability-specific legislations i.e. The Mental Health Act 1987, Rehabilitation Council of India Act 1992, Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and the National Trust Act 1999 — would have to be harmonized with the letter and spirit of the UNCRPD after India ratified it.
The most marginalized and vulnerable sections of the population has been excluded out of the millennium development goals agenda till 2015. The disability activists are pressing for an inclusion in post 2015 development agenda.Full inclusion of the disabled in the mainstream of the nation necessitates absence or removal of physical barriers to them. Disability is not only a Human Rights issue, it is a Developmental issue as well.
Disabilities directly impinge on the poverty. They often go together. Families with Disabled persons in a household will lead of loss of income from the caretaker. Girls with disabilities are more prone to sexual abuse and are forced sterilization in hospitals are they are assumed incapable of maintaining menstrual hygiene.They were not medically necessitated. Also parents of mentally disabled fearful of rape, sexual abuse or unwanted pregnancy consider hysterectomy as a solution. They are not considered fit to assume the traditional familial roles and they are conditioned to being dependent on someone unable to take care of themselves, which in turn makes them more vulnerable. Disability activists press for Gender sensitive disability law.There is a need to recognize the reproductive rights of the disabled.
Children with Disabilities aren’t even guaranteed an admission in the school despite the legal provisions in the Right to Education Act. They are considered a part of the disadvantaged where the Act necessitates mandatory 25 percent reservation in private and public schools. The elders with disabilities cannot lead a life of dignity in the absence of a supportive social security system.Many are not aware of the govt. programs for the disabled. Many in India resign their disabilities to their fate/karma.
Mentally Disabled are even more vulnerable. They figure out at the bottom of hierarchy in the disability category. They are not even entitled to the reservations in govt. services that physically disabled enjoy. They do not enjoy the Right to Vote that a billion other people in India enjoy. A person who is mentally unsound and stands so declared by court isn’t entitled the right to vote according to the Representation of People Act 1951. Mental unsoundness also limits a person from marriage and family according to our marriage laws.
A disabled person in developed nations might have far better opportunities than for a normal person in India. It is lack of the opportunities to lead a life of dignity that disempowers them. The effects of disabilities is negated by the presence of an enabling societal atmosphere. It is the Universal access and education that empowers them. It is the society that disables them, that denies them the physical access to the workplaces, public places etc. due to lack of enabling environment. It is lack of equal opportunities that they are treated as liability, but indeed they are an asset to the nation if provided enabling atmosphere.
Failings of the PWD Act :
– The PWD Act 1995 is the principal legal instrument concerning the limited rights available to persons with disabilities and the obligations of the State. This is not a rights based legislation. The Act fails to impose mandatory obligations on the appropriate government and leaves the realization of opportunities to the discretion of the various state governments.
– The implementation of provisions pertaining to non-discrimination and physical access depends on the state government’s “limits of economic capacity and development”. This absolves the state govt. of any responsibility.
– The Act is not appreciative of Gender concerns of reproductive rights. It does not prescribe punishment for forced abortions or sterilization
– The PWD Act does not internalize any of the core principles of the Disability Convention, which is Disabled persons are right holders and that they are not merely passive recipients of govt. scheme.
– The rights the disabled enjoy according to the convention are the Rights of Women and Children with Disability to full and equal enjoyment of human rights, right to privacy, reproductive rights, right to family, health care, prohibition of discrimination on grounds of disability in employment, political rights of right to vote and contest etc. which are not taken care adequately in the Act
– The Disabilities according to the Act is narrowly defined and includes only blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental retardation and mental illness. As opposed to this, the Disability avoids listing specific conditions and severities and broadly casts “persons with disabilities” to “include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
– No penal provisions for the non-implementation of the law resulting in inaction by govt. in ensuring a disabled friendly schools, hospitals, public transport, pedestrian pathways etc.
Highlights of the Rights of Persons with Disabilities Bill that overrides the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995
– It raises the reservation to the Disabled in the Govt. jobs from 3 to 5 percent
– Every person with disability who fulfils eligibility requirements is entitled to be registered as a voter. He/she should not be disqualified from exercising the voting right on the grounds of disability, irrespective of any stipulation to the contrary in any law for the time being in force.
– Provides incentives/disincentives to the Private sector for presence/absence of employing persons with disability less than 5 percent. An employer can deduct from his taxable income, an amount equal to the salary of the disabled employees above the 5 per cent or add to the taxable income salary of the disabled employees falling short of the 5 percent requirement
– Any person who is unable to vote in person due to disability or because of admission to hospital for treatment is entitled to opt for postal ballot. It requires the Election Commission to ensure that all polling stations are accessible to persons with disabilities.
– Recognizes the right to fertility to the mentally unsound women making the bill take into account the gender concerns
– Prescribes punishment for forced abortions or hysterectomy
The latest Supreme Court judgment for disabled in the State, Central govt. and Public Sector Undertakings has scrapped the different basis for reservations across the Group A, B, C and D posts and held that 3 percent reservation to be notified across all the Groups. The ruling also held that reservation be calculated on the total number of vacancies in the cadre strength rather than only the vacancies in the “identified” posts fit for the disabled. This ensures that whoever is capable for a job can try and qualify for it and is not denied opportunity for a particular job on the grounds of disability.
POLITY & GOVERNMENT BILLS
Prevention of communal and targeted violence (access to Justice and reparations) bill, 2011 and subsequent amendments
WHY DO WE NEED A SPECIFIC LAW FOR PREVENTING COMMUNAL VIOLENCE?
1) Long history of communal violence:
- Communal violence has wracked India for decades. Partition of the subcontinent in 1947 was accompanied by horrific violence between Hindus and Sikhs on the one hand and Muslims on the other, leaving a million dead and over 10 times that number homeless.
- Since independence, there have been countless instances of communal violence. In the 2005-09 periods alone, 648 people were killed and 11,278 injured in 4,030 such incidents, according to the PRS Legislative Research website. Communal clashes during this period peaked in 2008 with 943 cases being reported that year.
Some of the worst communal pogroms have occurred in the past three decades.
a) 1984 Anti Sikh riots:
- In 1984, following the assassination of prime minister Indira Gandhi by her Sikh bodyguards, mobs led by politicians from the ruling party incited and organized the burning and looting of property and killing of Sikhs in Delhi and other parts of North India. Around 3,000 Sikhs were killed. The government did nothing to halt the violence for at least three days.
b) 1992 Hindu- Muslim riots following demolition of Babri Masjid:
- When the Babri Masjid, a famous mosque in Ayodhya was destroyed by Hindu nationalists in December 1992, riots broke out in various parts of the country. Mumbai suffered the worst with around 900 people killed, about 575 of them Muslims.
c) 2002 Gujarat riots:
- A decade later, Gujarat convulsed with communal violence when mobs led by ministers and politicians of the state’s ruling Party and its fraternal organizations attacked Muslims and destroyed their property. Government did little to stop the violence.
- In fact, police were reportedly instructed at a meeting that they allow Hindus to “vent their anger” against Muslims over an “attack” on a train, the Sabarmati Express, which was set alight a few days earlier, resulting in the death of around 59 passengers, mainly Hindu.
- The communal riots in Gopalgarh, Dhule and Muzaffarnagar are the recent examples.
2) Institutional Bias:
- In some instances of communal violence, Institutional bias against minorities and oppressed sections has been shown up. Police ignore calls for help and refuse to register cases filed by victims. If communal violence occurs and is not controlled immediately it is because the police and local authorities refuse to do their duty impartially.
- In majority cases of Communal violence seldom have the guilty been brought to justice. According to Harvinder Singh Phoolka, a senior Supreme Court advocate who has been fighting for justice on behalf of victims of the 1984 riots, “Out of 2,733 officially admitted murders [in the anti-Sikh violence of 1984], only nine cases led to convictions.” Twenty-seven years since the pogrom, just over 20 of the accused have been convicted – a conviction rate of less than 1%.
- Therefore it is imperative to have such a legislation which hold government executive responsible.
3) Inadequate relief and reparation:
- Another incontrovertible truth is that rarely victims have received the relief they are entitled to or whatever they have received is insufficient compared to loss of lives, property etc.
4) Communal clashes are different from Ordinary Law and Order problem
- Given that larger public sentiments are involved, Communal clashes are starkly different from ordinary law and order disturbances.
- Whatever the immediate trigger for communal clashes, they are engineered and sustained by chauvinist and anti-social elements in both the majority and minority communities.
Prevention of Communal Violence (Access to Justice and Reparations) Bill 2011, seeks to address some of the problems associated with communal violence in India, and put in place an institutional mechanism for redress.
SOME IMPORTANT PROVISIONS OF THE BILL:
- It describes “Communal and targeted violence” act that includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group which destroys secure fabric of nation. Such acts include sexual assault, hate propaganda, torture and organized communal violence.
- The bill provides for the right to relief, reparation, restitution and compensation not only to not only to religious and linguistic minorities, Scheduled Castes and Scheduled Tribes but also to non-minorities and non-Scheduled Castes and Scheduled Tribes affected by communal and targeted violence.
- The bill creates a National Authority for Communal Harmony, Justice, and Reparation, charged with preventing acts of communal violence and monitoring investigations into incidents. The law also makes it obligatory that at least four of the seven member posts in the National Authority for Communal Harmony, Justice and Reparation belong to a minority community.
- It gives Centre to unilateral power to deploy forces during the incidents of communal violence if the Centre feels State has failed in its duty.
- It also covers the punishment of officials (10 years imprisonment for breach of command responsibility) who fail to discharge their duties in an unbiased manner during outbreaks of such violence and it also holds their superior accountable.
WHY HAS IT MET WITH OPPOSITION? CONTROVERSIAL PROVISIONS AND THEIR SUBSEQUENT AMENDMENTS, REVISED DRAFT, 2013:
- According to a key definition on the people who are presumably the focus of targeted violence, “group” means a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes (SC/ST)….” This provision of bill was criticized widely by some political parties. They objected to the way it set the defaults in favour of religious and linguistic minorities, its prior assigning of victimhood and agency. They are arguing why violence against the majority community should not be considered communal. However, after much hue and cry, this provision was amended and has now been made neutral between all groups or communities.
- Earlier, the centre was given unilateral powers to send Central paramilitary forces during the outbreak of communal violence without consulting the state government. Given that law and order is state subject, States were seeing this provision as encroachment on jurisdiction of States and claimed that it endangers federal structure of country. After much opposition, the powers of intervention of the Centre in the event of riots have also been diluted in the revised bill as a result of which the Union government will not have any perceived overriding powers anywhere. The fresh draft says, “if the state government is of the opinion that assistance of the Central government is required for controlling the communal violence, it may seek the assistance of the Central government to deploy armed forces of the Union for such purposes…”
- 3. An earlier draft of the bill had irked secular sections as well. It had defined communal violence as that which has destroyed India’s secular fabric. This prompted criticism that the bill raised the bar for violence to be regarded as communal too high rendering it meaningless. After all it is arguable whether any incident of communal violence has actually destroyed India’s secular fabric. In the revised draft the term “India’s secular fabric” has dropped.
- Some has pointed out that many of the provisions are worded vaguely, open to wide subjective interpretation, and hence misuse.
- Instead of a sharp focus on communal violence, the bill proposes to target “hate propaganda” too. Thus, anyone who disseminates any information “that could reasonably be construed to demonstrate an intention to promote or incite hatred” could attract the penal provisions of this law. In the absence of specific phrasing, there is scope for misuse by subordinate law enforcers.
- Significantly, a large section of minorities is also averse to legislation of this kind, which will facilitate fundamentalist forces to whip up frenzy against them. Their cynicism also stems from the fact that, despite an exemplary Constitution and a plethora of stringent laws, there has been no let-up in communal riots. They believe that rigorous implementation of the existing laws is needed, not a new law.
- The new draft of the bill has scrapped the proposed national authority and entrusted the functions of overseeing communal harmony to the NHRC. Some people are also arguing that How would such a toothless recommendatory body contribute to ensuring justice and communal harmony? Also it will out huge burden on the already burdened NHRC.
- Many of the bill’s clauses tread the same ground as the Indian Penal Code. There is already an array of laws on inciting hatred, spreading propaganda, and duties are clearly laid out for the police and administration. Many sections are arguing that what would it add new?
- Some are also opposing the timing of introduction of bill just before the upcoming Lok Sabha election. They are claiming that govt. is trying to woo minorities.
- The proposed bill ignores the deep pathological distrust and incomprehension that today appears to separate the Hindu and Muslim communities. A legal solution cannot solve the distrust and incomprehension between two communities.
- For now the major thrust of Government should be on rigorous implementation of existing laws, better policing and administrative precautions. The Government should also think of ways to promote fraternity among communities, which is the need of the hour.
- While there is no denying that India needs special legislation to deal with communal violence, but is it is equally important that the bill is redrafted to ensure a sharper focus on the specific issues of prevention of communal violence and reparation.
Questions from Secure 2014
1.How does the proposed Prevention of Communal Violence (Access to Justice and Reparations) Bill proposes to deal with communal violence in the country? Why is there controversy regarding the bill? Do you think objections raised against the bill are justified? Comment. (200 Words), 5/12/2013
2.The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 was opposed by several states on several grounds. Why did many states oppose the bill? Do you think legislation is a right approach to prevent communal clashes? Comment.(200 Words),17/12/2013
India and Sri Lanka: Reshaping and Revamping the Bilateral Channels
In the run-up to the January 20 this year meeting here between fishermen from Tamil Nadu and Sri Lanka, 275 Tamil fishermen lodged in various prisons in Sri Lanka would be released from January 13.Tamil Nadu will in turn release 179 Sri Lankan fishermen as requested by the Indian government to facilitate the talks.
India-Sri Lanka Relations have traditionally been cordial save a few hiccups from time to time. With the near annihilation of the Liberation Tigers of Tamil Eelam (LTTE) by the Sri Lankan forces with tacit help from India, the relations have been improved.
But there is an issue which needs frequent strong diplomatic remedial measures, that is the “Constant Trespassing of Indian Fishermen in Sri Lankan Waters and Their Continuing Arrest and Detention”.
Learning from the past in 2008, a Joint Working Group (JWG) has been established in order to identify the causes of frequent firing on Indian Fishermen who mistakenly crossed over into Sri Lankan waters.
In the JWG meeting, It was agreed by both sides that high priority must be accorded to the issue of fishermen and their livelihoods, which depend upon fishing, and often tempt them to drift into the island-nation territorial waters in the lure of a richer catch.
It was clearly mentioned in the JWG statement that, “To ensure security and safety of fishermen, both sides agreed that use of force cannot be justified under any circumstances”
Further, the bordering countries had “Agreed to put in place practical arrangements to deal with bona fide Indian and Sri Lankan fishermen crossing the International Maritime Boundary Line (IMBL)… keeping in mind the humanitarian and livelihood dimensions of the fishermen issue”.
It may be uncharitable to link the earlier Sri Lankan position to their perceived dependence on India at the height of ‘Eelam War IV – just as it is improper to link the recent spate of arrests to perception of hostility in Tamil Nadu, or to India’s vote against Sri Lanka at the UNHRC in Geneva, twice in a row. Sri Lanka has repeatedly indicated that their putting pressure on the Tamil Nadu fishers is a result of their own Tamil fishermen in the North and the East of the country taking to their traditional trade in a big way, in the months and years after the war. Intermittently, there have been suggestions from sections in the Colombo dispensation that spoke about issues of sovereignty, territorial integrity and State security.
Earlier a draft MoU on Development and Cooperation in the field of fisheries was discussed and the two sides agreed that such discussions will continue.
Also regulatory measures for managing fishery resources in the waters of the two countries were discussed. Both sides recognised the need for a road map to ensure security sustainability, livelihood issue, safety and security of fishermen of both countries.
The preparation and implementation of such a road map will go long distance in sorting out the problem relating to fishermen.
Reference: Based on editorials published in The Hindu, Indian Express, www.PRSindia.com
National Green Tribunal Bill 2009
1.It aims to establish specialized environmental courts in country. Bill replaces the existing National Environmental Appellate Authority and gives wider jurisdiction.
2. Bill allows to hear complaints of “substantial question” relating to the environment. Here “substantial questions” means those which affects the community not individual or group of same and which causes significant damage to the environment.
“Substantial questions” relating to environment under the following law can raised in these tribunal:
- Water (prevention and control of pollution) Act,1974
- The Water Cess Act, 1977
- The Forest(conservation) Act 1980
- The air(prevention and control of pollution) Act, 1981
- The Environment(protection) Act,1986
- The Public Liability Insurance Act,1991
- The Biological Diversity Act,2002
3. Tribunal consists of both judicial and experts members. Judicial members should have been judges of high or supreme courts and expert member should have good technological background and essential practical knowledge.
4. Bill states that order of tribunal shall be final and contains no provision for appeal.
5.Bill was introduced by the Ministry of Environment and Forests in response to the supreme court and recommendations of law commission.
- Meaning of “substantial question related to environment” is open to interpretation and does not give exact meaning.
- It may reduce the access to justice in environmental matters by taking away the jurisdiction of civil courts. All cases under these law will be handled by these tribunal which is benched at limited location(initially only five).
- It does give the tribunal jurisdiction over some environmental issues.
- Mainly the judicial members qualification is same as it was for NEAA.
- Bill does not give any clear idea about the composition of tribunal and selecting committee.