346 Bangladeshis using city as safe haven deported
Smita Nair & Stavan Desai
Indian Express , Mumbai, November 6:
Pakistani nationals coming into the country through Mumbai as legitimate passengers and then disappearing, illegal migrants from Bangladesh showing up in police investigations into recent terror attacks—it’s only natural that Mumbai police’s prime focus is now on illegal aliens who are using the city as a safe haven. The result is a systematic crackdown on the orders of anti terrorist squad (ATS) chief K P Raghuvanshi and police commissioner A N Roy. “This was always a problem, but after the 7/11 blasts we have stepped up vigil. We are taking preventive measures, too,” said Raghuvanshi.
According to the statistics available with the Mumbai police, so far in 2006, of the 501 Bangladeshis arrested till October, 346 have been deported. In 2004 and 2005, 701 Bangladeshis were deported. But the challenge for the police is the fact that illegal migrants keep coming back and at times they are the same ones who were deported a year or two before. This, police say, is because of the porous India-Bangladesh border. The special branch is making round-the-clock checks at various arrival points and well-known areas of the city. Among the 16 people arrested by the ATS so far for their alleged involvement in 7/11 blasts, at least two—Kamal Ansari and Mohammed Majid—are known to have escorted the terrorists to Mumbai after helping the them cross the border.
Last year, when the special branch arrested an illegal Bangladeshi migrant, 25-year-old Shabia Mohammed, her defence was: “I am poor and the city gives me money.” Days later, she was deported to Bangladesh. But during a raid last month, the special branch wasn’t surprised to find her in their net—this time, she had changed her name to Bilkis Bano.
“This is a common practice,” says Roy. “Sometimes these Bangladeshis reach Mumbai even before the police escort who is sent to deport them is able to come back from Bangladesh.”
The issue is of a “porous border”, reiterated inspector Vishwanath Satam of special branch. While areas like Raey Road, P D Mello Road, Sakinaka, Govandi, Dongri and Wadala are the traditional hotspots, investigators say “they (illegal migrants) are all over, having shifted to Mira Road and Thane districts.” So well entrenched are the migrants, that most come up fake passports, ration cards and voter ID cards when confronted during a raid. “Repetitive arrests have made them smart. They ensure that paper work is complete. Sometimes, it does not even take more than Rs 100 to get a fake ration card,” says special branch officer. Thankfully, a supreme court judgment strengthens the investigators’ case: only a birth certificate can be ascertained as a legal document in such cases. “Also, we do not have a national identity card which would have solved matters once and for all,” adds Roy.
Tuesday, November 07, 2006
CHILDREN AND THE LAW
THE INSULATED AND THE DAMNED
The Tehelka, Nov 11,06 Sanjay DubeyNew Delhi
Six years after the Juvenile Justice Act was passed, it is a dead letter for all practical purposes. Children suspected of crimes face a harrowing ordeal
The Juvenile Justice Act (JJA) is a solemn promise by the present to the future. Those who are charged with the statutory duty must not fail,” the Patna High Court declared in 1989. However, as even a cursory comparison of the provisions of the act with the experience of juvenile accused and undertrials in Delhi shows, the reality on the ground does not match up to the lofty pronouncements of the high court.
www.tehelka.com/story_main20.asp? filename=Ne1021200Childhoods_SR.asp
The Tehelka, Nov 11,06 Sanjay DubeyNew Delhi
Six years after the Juvenile Justice Act was passed, it is a dead letter for all practical purposes. Children suspected of crimes face a harrowing ordeal
The Juvenile Justice Act (JJA) is a solemn promise by the present to the future. Those who are charged with the statutory duty must not fail,” the Patna High Court declared in 1989. However, as even a cursory comparison of the provisions of the act with the experience of juvenile accused and undertrials in Delhi shows, the reality on the ground does not match up to the lofty pronouncements of the high court.
www.tehelka.com/story_main20.asp? filename=Ne1021200Childhoods_SR.asp
Send rescued kids home: HC to govt
Lack of rehabilitation mechanism a month after child labour ban “classic case of apathy”: Court
Tanu Sharma
New Delhi, November 7 Indian Express (Delhi News Line)
Almost a month after the ban on child labour came into force, Delhi High Court rapped the State Government for the “absence” of any mechanism to send the children rescued from different factories back to their homes in different states.
Terming it as a “classic case of apathy”, the Bench of acting Chief Justice Vijender Jain and Justice Kailash Gambhir noted how the state government had rescued many children “but no effective mechanism has been put in place for the rescued children to send them back to their parents in their respective states”.
The Court also regretted the fact that despite its orders of fining the employers of such children a sum of Rs 20,000, the direction had “not been set into motion” yet. “The net result is that when the children are rescued they are put in a children’s home and thereafter nobody is taking any care of them,” said the judges. The Bench also directed the State Labour Department to send back the rescued children to their parents “without waiting for the certificate of the SDM till the mechanism as agreed at the Ranchi Meeting is put into force”. Thereafter, they pointed out, it will be the obligation of the respective State Governments to take the children back to their respective homes. The directive came in response to a PIL filed by an NGO, Social Jurist, that highlighted how 425 children rescued from zari factories in Zafarabad were simply handed over to so-called relatives or parents by the Child Welfare Committees. Worse, nine of the children, all belonging to Bihar, who were rescued in subsequent raids in October 2006 are still languishing in the government’s children home at Lajpat Nagar. Appearing before the Court, Piyush Sharma, Joint Labour Commissioner-cum-Joint Secretary (Labour), apprised the judges about the decision taken at the meeting that was recently held between the representatives of Delhi, Jharkhand, Bihar and West Bengal.
The Bench also ordered the state government to immediately implement the Supreme Court’s directive of taking money from the employers of child labour “which can be used for the rehabilitation of the children.” A compliance report in this regard will be filed before the next date.
http://cities.expressindia.com/fullstory.php?newsid=208421
Tanu Sharma
New Delhi, November 7 Indian Express (Delhi News Line)
Almost a month after the ban on child labour came into force, Delhi High Court rapped the State Government for the “absence” of any mechanism to send the children rescued from different factories back to their homes in different states.
Terming it as a “classic case of apathy”, the Bench of acting Chief Justice Vijender Jain and Justice Kailash Gambhir noted how the state government had rescued many children “but no effective mechanism has been put in place for the rescued children to send them back to their parents in their respective states”.
The Court also regretted the fact that despite its orders of fining the employers of such children a sum of Rs 20,000, the direction had “not been set into motion” yet. “The net result is that when the children are rescued they are put in a children’s home and thereafter nobody is taking any care of them,” said the judges. The Bench also directed the State Labour Department to send back the rescued children to their parents “without waiting for the certificate of the SDM till the mechanism as agreed at the Ranchi Meeting is put into force”. Thereafter, they pointed out, it will be the obligation of the respective State Governments to take the children back to their respective homes. The directive came in response to a PIL filed by an NGO, Social Jurist, that highlighted how 425 children rescued from zari factories in Zafarabad were simply handed over to so-called relatives or parents by the Child Welfare Committees. Worse, nine of the children, all belonging to Bihar, who were rescued in subsequent raids in October 2006 are still languishing in the government’s children home at Lajpat Nagar. Appearing before the Court, Piyush Sharma, Joint Labour Commissioner-cum-Joint Secretary (Labour), apprised the judges about the decision taken at the meeting that was recently held between the representatives of Delhi, Jharkhand, Bihar and West Bengal.
The Bench also ordered the state government to immediately implement the Supreme Court’s directive of taking money from the employers of child labour “which can be used for the rehabilitation of the children.” A compliance report in this regard will be filed before the next date.
http://cities.expressindia.com/fullstory.php?newsid=208421
Call for urgent steps to reform police force
CHENNAI: The Hindu 7 Nov 2006
Speakers at a panel discussion here on Sunday called for urgent steps to reform the police force in the wake of the Supreme Court's order in September, directing the Union Government and States to make police administration autonomous. The meeting, organised by the Citizens' Alliance for Good Governance, called upon the people to urge Members of Legislative Assembly and the Chief Minister for taking steps to establish the mechanisms, as stated in the order, by the end of this year.
Era Sezhiyan, former Member of Parliament, said no number of laws would be useful unless the people were vigilant; it was for the public to protect democracy. The recommendation of the National Police Commission (1977-1981) that law and order be separated from investigation was not implemented. V.R. Lakshmi Narayanan, former Director-General of Police, said the existing laws should first be implemented seriously to improve the functioning of the police department.
Already, a plethora of institutions functioned to oversee the working of the police, and they should be allowed to perform their duties. It would suffice if there were State-level institutions for monitoring the functioning of the police. "Take politicians off our back," he said.
Naga Saila, president of the Chennai unit of the People's Union for Civil Liberties (Tamil Nadu and Pondicherry), said the police reforms had to be seen positively. When new institutions were created, independence of the existing institutions should remain intact.
Transparency and accountability in the policing should be ensured. Open house sessions between police officers and activists should be made mandatory, as in the case of gram sabhas. There should be public evaluation of the working of the police personnel, and it should be made a criteria for increment or promotions.
N.L. Rajah, advocate, Madras High Court, explained the salient features of the Supreme Court order and said the enactment of new laws should be preceded by informed debates.
V. Suresh, president of the PUCL, Tamil Nadu and Pondicherry, said the court order stated that till the laws were created, its directives should be implemented.
R.K. Raghavan, former Director of the Central Bureau of Investigation, said that as the constabulary constituted the bulk of the force, its quality should be enhanced.
Steps had been taken, and the composition of constabulary had changed in recent years.
A.K. Venkat Subramanian, spokesman of the Citizens' Alliance, said social will should prevail over political will in implementing police reforms.
Speakers at a panel discussion here on Sunday called for urgent steps to reform the police force in the wake of the Supreme Court's order in September, directing the Union Government and States to make police administration autonomous. The meeting, organised by the Citizens' Alliance for Good Governance, called upon the people to urge Members of Legislative Assembly and the Chief Minister for taking steps to establish the mechanisms, as stated in the order, by the end of this year.
Era Sezhiyan, former Member of Parliament, said no number of laws would be useful unless the people were vigilant; it was for the public to protect democracy. The recommendation of the National Police Commission (1977-1981) that law and order be separated from investigation was not implemented. V.R. Lakshmi Narayanan, former Director-General of Police, said the existing laws should first be implemented seriously to improve the functioning of the police department.
Already, a plethora of institutions functioned to oversee the working of the police, and they should be allowed to perform their duties. It would suffice if there were State-level institutions for monitoring the functioning of the police. "Take politicians off our back," he said.
Naga Saila, president of the Chennai unit of the People's Union for Civil Liberties (Tamil Nadu and Pondicherry), said the police reforms had to be seen positively. When new institutions were created, independence of the existing institutions should remain intact.
Transparency and accountability in the policing should be ensured. Open house sessions between police officers and activists should be made mandatory, as in the case of gram sabhas. There should be public evaluation of the working of the police personnel, and it should be made a criteria for increment or promotions.
N.L. Rajah, advocate, Madras High Court, explained the salient features of the Supreme Court order and said the enactment of new laws should be preceded by informed debates.
V. Suresh, president of the PUCL, Tamil Nadu and Pondicherry, said the court order stated that till the laws were created, its directives should be implemented.
R.K. Raghavan, former Director of the Central Bureau of Investigation, said that as the constabulary constituted the bulk of the force, its quality should be enhanced.
Steps had been taken, and the composition of constabulary had changed in recent years.
A.K. Venkat Subramanian, spokesman of the Citizens' Alliance, said social will should prevail over political will in implementing police reforms.
The right to food
The right to food
Biraj Patnaik
06 November 2006
In recent years, the battle against hunger has been placed at the centre of the development discourse in India. This has come about mainly due to the efforts of the Right to Food Campaign and as a direct result of a writ petition filed in the Supreme Court of India. The petition was filed by the People’s Union for Civil Liberties in April 2001 to seek legal enforcement of the right to food. This case, popularly known as the Right to Food Case, has since become a rallying point for trade unions, activists, grassroots organisations and NGOs to make the right to food a justiciable right. While the Indian Constitution does not explicitly mention the right to food as a fundamental right, it is implicitly enshrined in Article 21 of the Constitution as the fundamental right to life of every Indian citizen. Article 47 of the Constitution (in the Directive Principles of State Policy) is unambiguous: “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties…” The Indian judiciary, especially the Supreme Court, has on many occasions reaffirmed that the “right to life enshrined in Article 21 means something more than animal instinct and includes the right to live with dignity; it would include all these aspects which make life meaningful, complete and living” (Maneka Gandhi vs Union of India AIR 1978 SC 597). Other statutory constitutional institutions like the National Human Rights Commission (NHRC) have also stated: “There is a fundamental right to be free from hunger” (January 17, 2003). Despite this, India continues to be the site of the most unconscionable levels of chronic hunger and deprivation. Child malnutrition levels in India (46%; height for age data) have consistently been higher than those of even Sub-Saharan Africa and of countries with lower rates of economic growth like neighbouring Bangladesh (45%). The National Nutrition Monitoring Bureau (conducted by the National Institute of Nutrition, Indian Council for Medical Research) estimates that nearly 40% of the adult population in India has a Body Mass Index of less than 18.5, which implies chronic energy deficiency of epic proportions, bordering on a national humanitarian crisis. It is in this context that Indian planners have, over the post-independence decades, put in place some of the biggest food security programmes in the world.
The schemes can be broadly divided into four categories: Entitlement feeding (Integrated Child Development Services [ICDS], Mid-Day Meal Scheme [MDMS]) Food subsidy programmes (targeted Public Distribution System [PDS] including Antyodaya and Annapurna Yojana) Employment programmes (National Rural Employment Guarantee Act [NREGA], Sampoorna Grameen Rozgar Yojana, National Food for Work Programme, Rashtriya Sam Vikas Yojana) Social security programmes (National Maternity Benefit Scheme, National Old Age Pension Scheme and National Family Benefit Scheme). These are comprehensive programmes that address the nutritional needs of a person from the time of birth through to old age. The ICDS seeks to take care of the nutritional challenges faced by infants and young children (0-6 years) and pregnant women, nursing mothers and adolescent girls; the MDMS provides meals to all primary school children; the targeted PDS provides subsidised grain to families below the poverty line; the NREGA provides 100 days of employment in 200 districts (to begin with); the social assistance programmes cover the aged who are left out of the social security net. For decades, these programmes have succeeded in preventing the kind of large-scale famines that occurred in the years before independence (such as the Bengal famine of 1943). Yet they have been unable to substantively address the problem of chronic hunger. This is not only because of gaps in implementation, but also because, as many activists argue, they do not provide for sustainable and lasting livelihood options. The problem is compounded by the fact that concerted efforts have been lacking, except in a few states like West Bengal, to undertake land reforms, give communities rights over natural resources, and address the structural causes of poverty. Caste and gender discrimination have also been major contributing factors. On the contrary, the last two decades have witnessed an unprecedented alienation of indigenous people and other marginalised communities from their land and other natural resources; displacement due to industrial projects and large dams in rural areas; and fundamental changes in the nature of poverty with unbridled urbanisation and the disenfranchisement of large sections of urban populations. Global pressures on the Indian economy and the pursuit of deflationary, neo-liberal policies by successive governments from the early-1990s have abetted in this pauperisation of millions of Indians.
The importance of the Right to Food Case has to be viewed in this macro-context. Therefore interventions by the Supreme Court through interim orders in this case become critical. The Right to Food Case is perhaps the longest continuing mandamus in the world on this issue. It is also one of the largest and most complex litigations involving a wide range of state and civil society actors in India. More than 400 affidavits have been filed so far; over 60 interim applications have been submitted and 47 interim orders have been passed by the SC in this case over the last five years. The Supreme Court and the right to food In an interim order on November 28, 2001, the Supreme Court converted most food and employment-related schemes into “legal entitlements”. This also implies that the Government of India and state governments cannot change these schemes without the permission of the SC till the final judgment is passed in this case. The campaign hopes that this case will culminate in the right to food becoming a fundamental right that can be made justiciable in any court of law in the country. The interim orders of the SC reflect the growing complexity of the case and the diverse issues being covered. The orders on universalising access to food, especially for children—related to mid-day meals and the ICDS—have been landmarks. On November 28, 2001, the Supreme Court directed state and central governments to universalise the mid-day meals and provide hot, cooked meals to all primary school children in India. The interim order also universalised the ICDS programme, making it mandatory for government to provide supplementary nutrition and the other five services under the ICDS to all children below the age of six, all pregnant women and nursing mothers and adolescent girls. The NREGA emerged out of a separate process of political mobilisation involving a wider range of people outside the Right to Food Campaign, but the environment created by the Right to Food Case facilitated the emergence of the NREGA. Detailed orders have been passed from time to time on some of the schemes, but the PDS has not yet been universalised, nor have many other schemes that come within the purview of this case. The order on the ICDS illustrates the nature of the interim orders. This order explicitly stated that: “We direct the State Governments/Union territories to implement the Integrated Child Development Scheme (ICDS) in full and to ensure that every ICDS disbursing centre in the country shall provide as under: Each child up to 6 years of age to get 300 calories and 8-10 grams of protein Each adolescent girl to get 500 calories and 20-25 grams of protein Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein Each malnourished child to get 600 calories and 16-20 grams of protein Have a disbursement centre in every settlement. ” When the state and central governments did not comply, the SC was compelled to pass further orders on October 7, 2004, directing the Government of India to increase the number of ICDS centres to cover 14 lakh habitations. This would mean starting at least 7 lakh additional centres as a minimum requirement to universalise the ICDS. The same order recommended the increase of the allocation of “rupees one per child per day” to “rupees two per child per day”, with the central and state governments contributing one rupee each. The same interim order also directed the government to make “earnest effort to cover the slums under ICDS” and ensure that all SC/ST habitations got an anganwadi “as early as possible”. The SC also categorically banned the use of contractors for providing supplementary nutrition and directed the Government of India and all states and union territories to use local women’s self-help groups and mahila mandals to supply the supplementary food distributed in anganwadi centres. Similar detailed interim orders have been passed for virtually every scheme that falls in the ambit of the case. The scope of judicial intervention on the right to food has thus been considerably enhanced through the interventions of the Supreme Court. Simultaneously, the campaigners and individual citizens have started approaching High Courts across the country on matters related to the right to food and the lack of compliance by state governments with the interim orders of the SC. Having secured significant policy changes at the national level, the focus has moved to legal interventions on implementation.
In an interim order of October 29, 2002, the SC had directed that the “Chief Secretaries” of the concerned states would be held responsible for any persistent default in compliance with orders. This had led to some ambiguity, with the Delhi and Rajasthan High Courts refusing to entertain petitions pertaining to violations at the state level since the SC was monitoring the schemes. In another order, the SC invoked the procedure of the DK Basu protocol for the right to food and stated that: "Failure to comply with the requirements herein above mentioned shall apart from rendering the official concerned liable for departmental action also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country having territorial jurisdiction over the matter." The status of the interim orders In an interim order of May 8, 2002, the SC also put in place an independent mechanism—the Commissioners of the Supreme Court—to ensure compliance by the state and central government with the orders of the court. This is not the first time the SC has put in place such a mechanism, but it is the first instance in the context of the right to food. The Commissioners submit bi-annual reports to the SC. Six reports highlighting non-compliance, structural issues regarding hunger, and the hurdles in implementation have been submitted to the SC so far. The SC then asks the state and central governments to respond to the issues raised by the Commissioners. The Commissioners are also empowered to move contempt of court charges against chief secretaries and other senior state/ central government officials when the non-compliance is wilful and deliberate. The Commissioners have appointed Joint Commissions of Enquiry (JCEs) with representatives nominated both by the Commissioners and the government, to enquire into charges of malfeasance by government officials in food schemes. JCEs have been commissioned in Chhattisgarh, Assam, West Bengal and Madhya Pradesh. These enquiries have led to the dismissal of a few officials, departmental enquiries against some, and suspension from service for others. They have also led to grievances about the implementation of food schemes being addressed. The Commissioners operate through a network of honorary state and national advisers to monitor the progress of the food schemes, suggest reforms in the laws, policies and programmes pertaining to the Right to Food, and, wherever necessary, get directions from the SC and have action taken against erring state/ central government officials. In the five years since the Right to Food Case was admitted in the Supreme Court, many milestones have been achieved, but the journey ahead is much longer than the path traversed so far. For example, the interim orders have resulted in the Government of India sanctioning 1.88 lakh additional ICDS centres so far, with a sanction of another lakh expected soon. At the macro level the budget of the ICDS has gone up nearly three times from Rs 1,500 crore in 2003-04 to almost Rs 4,000 crore for 2006-07. Many state governments have been galvanised into action and the ICDS has been the focus of discussions for the National Advisory Committee of the UPA government.
The interim orders on the ICDS have also brought together many sections of civil society. The Hyderabad convention on the Children’s Right to Food and subsequent action by local groups reflect some of the newer forms of mobilisation on this issue. But these significant changes in the ICDS are inadequate when compared to what needs to be done to make the services universal. The Government of India took almost three years to act on the interim orders. Consequently, very few of the 1.88 lakh new anganwadi centres have become operational in the states. Even when the government did act, it chose to contest the figure for making the programme universal. It has still not agreed, as its correspondence with the Commissioners of January 23, 2006 shows, to a minimum of 14 lakh anganwadi centres. After an intervention by the Commissioners, the matter is now sub-judice in the SC. Most state governments continue to retain contractors and have not decentralised the provision of supplementary nutrition to women’s self-help groups despite the unambiguous orders. The battle against the contractor lobby is likely to continue for some time even as they innovate ways to retain their interests in the ICDS. The Commissioners have pointed out in a note to the SC, discussed at the July 17 hearing at the SC, that the new norms proposed by the Government of India in fact go against the principle of decentralisation. Despite the odds, the Commissioners office and the legal team have got the overwhelming support of civil society organisations. This support adds strength to their intervention and it is special because working on the details of government programmes has not been a significant area of work for many of these organisations. Compliance with SC orders has been strongest where local mobilisation has been successful. This has reaffirmed the limited role that legal action on its own can play in securing rights. It has also re-established the strength of mobilising people to assert their rights. The right to food is a political issue that can be resolved only through political means and will not lend itself only to a legal solution. However, this case has also established the ways in which the law can be a facilitator and a catalyst. This, amongst others, may be one of the lasting contributions that the Right to Food Campaign in India will make to the rights discourse in India.
(Biraj Patnaik is the Principal Adviser to the Commissioners of the Supreme Court. The views expressed in this article are his own and do not reflect the formal position of the Office of the Commissioners or the Right to Food Campaign.) Source: Info Change More
Biraj Patnaik
06 November 2006
In recent years, the battle against hunger has been placed at the centre of the development discourse in India. This has come about mainly due to the efforts of the Right to Food Campaign and as a direct result of a writ petition filed in the Supreme Court of India. The petition was filed by the People’s Union for Civil Liberties in April 2001 to seek legal enforcement of the right to food. This case, popularly known as the Right to Food Case, has since become a rallying point for trade unions, activists, grassroots organisations and NGOs to make the right to food a justiciable right. While the Indian Constitution does not explicitly mention the right to food as a fundamental right, it is implicitly enshrined in Article 21 of the Constitution as the fundamental right to life of every Indian citizen. Article 47 of the Constitution (in the Directive Principles of State Policy) is unambiguous: “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties…” The Indian judiciary, especially the Supreme Court, has on many occasions reaffirmed that the “right to life enshrined in Article 21 means something more than animal instinct and includes the right to live with dignity; it would include all these aspects which make life meaningful, complete and living” (Maneka Gandhi vs Union of India AIR 1978 SC 597). Other statutory constitutional institutions like the National Human Rights Commission (NHRC) have also stated: “There is a fundamental right to be free from hunger” (January 17, 2003). Despite this, India continues to be the site of the most unconscionable levels of chronic hunger and deprivation. Child malnutrition levels in India (46%; height for age data) have consistently been higher than those of even Sub-Saharan Africa and of countries with lower rates of economic growth like neighbouring Bangladesh (45%). The National Nutrition Monitoring Bureau (conducted by the National Institute of Nutrition, Indian Council for Medical Research) estimates that nearly 40% of the adult population in India has a Body Mass Index of less than 18.5, which implies chronic energy deficiency of epic proportions, bordering on a national humanitarian crisis. It is in this context that Indian planners have, over the post-independence decades, put in place some of the biggest food security programmes in the world.
The schemes can be broadly divided into four categories: Entitlement feeding (Integrated Child Development Services [ICDS], Mid-Day Meal Scheme [MDMS]) Food subsidy programmes (targeted Public Distribution System [PDS] including Antyodaya and Annapurna Yojana) Employment programmes (National Rural Employment Guarantee Act [NREGA], Sampoorna Grameen Rozgar Yojana, National Food for Work Programme, Rashtriya Sam Vikas Yojana) Social security programmes (National Maternity Benefit Scheme, National Old Age Pension Scheme and National Family Benefit Scheme). These are comprehensive programmes that address the nutritional needs of a person from the time of birth through to old age. The ICDS seeks to take care of the nutritional challenges faced by infants and young children (0-6 years) and pregnant women, nursing mothers and adolescent girls; the MDMS provides meals to all primary school children; the targeted PDS provides subsidised grain to families below the poverty line; the NREGA provides 100 days of employment in 200 districts (to begin with); the social assistance programmes cover the aged who are left out of the social security net. For decades, these programmes have succeeded in preventing the kind of large-scale famines that occurred in the years before independence (such as the Bengal famine of 1943). Yet they have been unable to substantively address the problem of chronic hunger. This is not only because of gaps in implementation, but also because, as many activists argue, they do not provide for sustainable and lasting livelihood options. The problem is compounded by the fact that concerted efforts have been lacking, except in a few states like West Bengal, to undertake land reforms, give communities rights over natural resources, and address the structural causes of poverty. Caste and gender discrimination have also been major contributing factors. On the contrary, the last two decades have witnessed an unprecedented alienation of indigenous people and other marginalised communities from their land and other natural resources; displacement due to industrial projects and large dams in rural areas; and fundamental changes in the nature of poverty with unbridled urbanisation and the disenfranchisement of large sections of urban populations. Global pressures on the Indian economy and the pursuit of deflationary, neo-liberal policies by successive governments from the early-1990s have abetted in this pauperisation of millions of Indians.
The importance of the Right to Food Case has to be viewed in this macro-context. Therefore interventions by the Supreme Court through interim orders in this case become critical. The Right to Food Case is perhaps the longest continuing mandamus in the world on this issue. It is also one of the largest and most complex litigations involving a wide range of state and civil society actors in India. More than 400 affidavits have been filed so far; over 60 interim applications have been submitted and 47 interim orders have been passed by the SC in this case over the last five years. The Supreme Court and the right to food In an interim order on November 28, 2001, the Supreme Court converted most food and employment-related schemes into “legal entitlements”. This also implies that the Government of India and state governments cannot change these schemes without the permission of the SC till the final judgment is passed in this case. The campaign hopes that this case will culminate in the right to food becoming a fundamental right that can be made justiciable in any court of law in the country. The interim orders of the SC reflect the growing complexity of the case and the diverse issues being covered. The orders on universalising access to food, especially for children—related to mid-day meals and the ICDS—have been landmarks. On November 28, 2001, the Supreme Court directed state and central governments to universalise the mid-day meals and provide hot, cooked meals to all primary school children in India. The interim order also universalised the ICDS programme, making it mandatory for government to provide supplementary nutrition and the other five services under the ICDS to all children below the age of six, all pregnant women and nursing mothers and adolescent girls. The NREGA emerged out of a separate process of political mobilisation involving a wider range of people outside the Right to Food Campaign, but the environment created by the Right to Food Case facilitated the emergence of the NREGA. Detailed orders have been passed from time to time on some of the schemes, but the PDS has not yet been universalised, nor have many other schemes that come within the purview of this case. The order on the ICDS illustrates the nature of the interim orders. This order explicitly stated that: “We direct the State Governments/Union territories to implement the Integrated Child Development Scheme (ICDS) in full and to ensure that every ICDS disbursing centre in the country shall provide as under: Each child up to 6 years of age to get 300 calories and 8-10 grams of protein Each adolescent girl to get 500 calories and 20-25 grams of protein Each pregnant woman and each nursing mother to get 500 calories and 20-25 grams of protein Each malnourished child to get 600 calories and 16-20 grams of protein Have a disbursement centre in every settlement. ” When the state and central governments did not comply, the SC was compelled to pass further orders on October 7, 2004, directing the Government of India to increase the number of ICDS centres to cover 14 lakh habitations. This would mean starting at least 7 lakh additional centres as a minimum requirement to universalise the ICDS. The same order recommended the increase of the allocation of “rupees one per child per day” to “rupees two per child per day”, with the central and state governments contributing one rupee each. The same interim order also directed the government to make “earnest effort to cover the slums under ICDS” and ensure that all SC/ST habitations got an anganwadi “as early as possible”. The SC also categorically banned the use of contractors for providing supplementary nutrition and directed the Government of India and all states and union territories to use local women’s self-help groups and mahila mandals to supply the supplementary food distributed in anganwadi centres. Similar detailed interim orders have been passed for virtually every scheme that falls in the ambit of the case. The scope of judicial intervention on the right to food has thus been considerably enhanced through the interventions of the Supreme Court. Simultaneously, the campaigners and individual citizens have started approaching High Courts across the country on matters related to the right to food and the lack of compliance by state governments with the interim orders of the SC. Having secured significant policy changes at the national level, the focus has moved to legal interventions on implementation.
In an interim order of October 29, 2002, the SC had directed that the “Chief Secretaries” of the concerned states would be held responsible for any persistent default in compliance with orders. This had led to some ambiguity, with the Delhi and Rajasthan High Courts refusing to entertain petitions pertaining to violations at the state level since the SC was monitoring the schemes. In another order, the SC invoked the procedure of the DK Basu protocol for the right to food and stated that: "Failure to comply with the requirements herein above mentioned shall apart from rendering the official concerned liable for departmental action also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country having territorial jurisdiction over the matter." The status of the interim orders In an interim order of May 8, 2002, the SC also put in place an independent mechanism—the Commissioners of the Supreme Court—to ensure compliance by the state and central government with the orders of the court. This is not the first time the SC has put in place such a mechanism, but it is the first instance in the context of the right to food. The Commissioners submit bi-annual reports to the SC. Six reports highlighting non-compliance, structural issues regarding hunger, and the hurdles in implementation have been submitted to the SC so far. The SC then asks the state and central governments to respond to the issues raised by the Commissioners. The Commissioners are also empowered to move contempt of court charges against chief secretaries and other senior state/ central government officials when the non-compliance is wilful and deliberate. The Commissioners have appointed Joint Commissions of Enquiry (JCEs) with representatives nominated both by the Commissioners and the government, to enquire into charges of malfeasance by government officials in food schemes. JCEs have been commissioned in Chhattisgarh, Assam, West Bengal and Madhya Pradesh. These enquiries have led to the dismissal of a few officials, departmental enquiries against some, and suspension from service for others. They have also led to grievances about the implementation of food schemes being addressed. The Commissioners operate through a network of honorary state and national advisers to monitor the progress of the food schemes, suggest reforms in the laws, policies and programmes pertaining to the Right to Food, and, wherever necessary, get directions from the SC and have action taken against erring state/ central government officials. In the five years since the Right to Food Case was admitted in the Supreme Court, many milestones have been achieved, but the journey ahead is much longer than the path traversed so far. For example, the interim orders have resulted in the Government of India sanctioning 1.88 lakh additional ICDS centres so far, with a sanction of another lakh expected soon. At the macro level the budget of the ICDS has gone up nearly three times from Rs 1,500 crore in 2003-04 to almost Rs 4,000 crore for 2006-07. Many state governments have been galvanised into action and the ICDS has been the focus of discussions for the National Advisory Committee of the UPA government.
The interim orders on the ICDS have also brought together many sections of civil society. The Hyderabad convention on the Children’s Right to Food and subsequent action by local groups reflect some of the newer forms of mobilisation on this issue. But these significant changes in the ICDS are inadequate when compared to what needs to be done to make the services universal. The Government of India took almost three years to act on the interim orders. Consequently, very few of the 1.88 lakh new anganwadi centres have become operational in the states. Even when the government did act, it chose to contest the figure for making the programme universal. It has still not agreed, as its correspondence with the Commissioners of January 23, 2006 shows, to a minimum of 14 lakh anganwadi centres. After an intervention by the Commissioners, the matter is now sub-judice in the SC. Most state governments continue to retain contractors and have not decentralised the provision of supplementary nutrition to women’s self-help groups despite the unambiguous orders. The battle against the contractor lobby is likely to continue for some time even as they innovate ways to retain their interests in the ICDS. The Commissioners have pointed out in a note to the SC, discussed at the July 17 hearing at the SC, that the new norms proposed by the Government of India in fact go against the principle of decentralisation. Despite the odds, the Commissioners office and the legal team have got the overwhelming support of civil society organisations. This support adds strength to their intervention and it is special because working on the details of government programmes has not been a significant area of work for many of these organisations. Compliance with SC orders has been strongest where local mobilisation has been successful. This has reaffirmed the limited role that legal action on its own can play in securing rights. It has also re-established the strength of mobilising people to assert their rights. The right to food is a political issue that can be resolved only through political means and will not lend itself only to a legal solution. However, this case has also established the ways in which the law can be a facilitator and a catalyst. This, amongst others, may be one of the lasting contributions that the Right to Food Campaign in India will make to the rights discourse in India.
(Biraj Patnaik is the Principal Adviser to the Commissioners of the Supreme Court. The views expressed in this article are his own and do not reflect the formal position of the Office of the Commissioners or the Right to Food Campaign.) Source: Info Change More
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