LAW RESOURCE INDIA

With all due respect, My Lords

Posted in CONSTITUTION, FUNDAMENTAL RIGHTS, GOVERNANCE, JUDICIARY, JUSTICE by NNLRJ INDIA on March 2, 2012

Supreme Court of India

RAMASWAMY S IYER IN THE HINDU

It is not for the Supreme Court to decide how the government should ensure the right to water; in any case, the connection between this right and the river linking project is tenuous.

In recent times the Supreme Court of India, with a series of remarkable decisions, has earned our admiration, respect and gratitude. Alas, it has now come out with an extraordinary order on the Inter-Linking of Rivers (ILR) Project, which has caused consternation and dismay to many of us.

In 2002, in a post-retirement explanation, a defensive Justice Kirpal had said that his order on the river-linking project was not a direction but merely a recommendation. That defensiveness has now been abandoned. In the present order, the Supreme Court explicitly directs the Executive Government to implement the project and to set up a Special Committee to carry out that implementation; it lays down that the committee’s decisions shall take precedence over all administrative bodies created under the orders of this court or otherwise; it (graciously) authorises the Cabinet to take all final and appropriate decisions, and lays down a time-limit of 30 days for such decision-making (though it has the saving grace to say “preferably”); and it grants “liberty to the learned Amicus Curiae to file contempt petition in this court, in the event of default or non-compliance of the directions contained in this order”.

The normal course

In the normal course, a project goes through certain stages and procedures: formulation; examination from various angles by the appropriate agencies, Committees, and Ministries; statutory clearances under the Environment Protection Act and the Forest Conservation Act; compliance with the procedures prescribed in the National Rehabilitation Policy; acceptance of the project by the Planning Commission from the national planning point of view; and finally a decision by the Cabinet. The Supreme Court rides roughshod over all this and orders not quick consideration and decision-making by the government, but implementation.

Are the proposed Special Committee and the Cabinet free to examine the project and come to the conclusion that it is unacceptable and must be rejected? No, they are under the Supreme Court’s order to implement the project and may face contempt proceedings if they fail to do so. The project decision has been taken away from the hands of the government; it has been exercised by the Supreme Court; the government and the Planning Commission have been reduced to the position of subordinate offices or implementing agencies of the Supreme Court.

It could be argued that the above is a misrepresentation of what the Supreme Court has done, and that the learned judges are only concerned at the delay in the implementation of an approved project and asking for early implementation. In fact, there is no approved, sanctioned project called “the inter-linking of rivers project”. In 2003, when there was a raging controversy about this idea, an important defence by its supporters was that it was not a project but a grand concept; that it will consist of 30 links, each of which will be a project that will go through all the usual examinations and procedures; and that the critics are needlessly raising the bogey of gigantism. If it is a concept, how can it be ‘implemented’? It has first to be translated into projects, and each of those projects has to be properly approved or rejected, as the case may be. Thereafter we can talk about implementation.

How many of those 30 projects have been actually approved? None. Three — Ken-Betwa, Damanganga-Pinjal, Par-Tapi-Narmada — have reached the stage of preparation of Detailed Project Reports, and one (Polavaram), though included in the ILR Project, was separately taken up by the Andhra Pradesh government on somewhat different lines, but is mired in controversy. There is not a single case of a project actually sanctioned and ready for implementation.

The learned judges may say that this is precisely what worries them; that by now the projects should have been well under way; that a good project or concept or whatever it was, announced in 2002, is languishing; and that the judiciary has to step into the vacant space created by non-action by the Executive and issue the necessary direction. This is the gap-filling theory. However, there is a fallacy here. The “delay” is not the result of executive failure or inefficiency, but a deliberate (though unstated) slowing down of action on the project. The NDA had announced the project in 2002 with fanfare and trumpets. The UPA government which followed in 2004 was not very enthusiastic about the project but at the same time did not want to abandon it; its Common Minimum Programme stated that the project would be comprehensively re-assessed in a fully consultative manner. This was a clear indication of reservations about the project. Thereafter the project has been in the doldrums. Unfortunately, the government’s attitude towards the project was never made unambiguously clear to either the general public or the Supreme Court.

The Supreme Court was clearly entitled to ask the government to state categorically where it stood in this matter: whether it considered the project to be a good (or the only) answer to the country’s needs; if so, whether it intended to proceed with it; or alternatively, whether it had decided to drop the whole idea, and if so, on what grounds. What the Supreme Court was not entitled to do was to issue a direction to the government to implement the project.

Why has it done so? It would be wrong to attribute this to a desire for aggrandisement. The Supreme Court is convinced that the project is good and urgently needed; and that a very important national initiative is getting bogged down because of various reasons and needs to be galvanised. It has come to that conclusion because of a report by the National Council for Applied Economic Research.

Two problems

There are two problems here. First, assuming that there is a serious water scarcity problem, it is not the business of the Supreme Court to deal with it; there is an Executive Government to deal with such matters. True, the citizen’s right to water is a fundamental right, and therefore the Supreme Court is concerned with it; but while it may direct the government to ensure that the right is not denied, it is not for it to lay down the manner in which or the source from which that right should be ensured. Moreover, the connection between the right to water and the ILR Project is very tenuous; it is the large demand for irrigation water that generally drives major projects and long-distance water transfers. It is true, again, that there are intractable inter-State river-water disputes, and these are of concern to the Supreme Court; but the Supreme Court can at best direct the Executive Government to find early answers to river water disputes, and not recommend a particular answer such as the ILR project, which may in fact generate new conflicts.

Secondly, and finally, we come to the heart of the matter, namely the view that the country faces a looming water crisis; that the answer lies in augmenting supplies; that given the magnitude and distribution of India’s future water requirements, the ILR project is the best possible answer; and that it is in the national interest to implement it quickly. It is that conviction that provides, in the Supreme Court’s view, the justification for its intervention. If that view of India’s water crisis and its solution is challenged, the whole basis for the Supreme Court’s order collapses.

This article will not enter into a discussion of this vital question, but will merely point out that there is a diversity of views on it, which the Supreme Court has failed to consider. The NCAER may have taken one view of the matter, but there are other views. The cogent case against the project has been succinctly stated in the editorial in this paper on 1 March 2012. That knocks the bottom out of the Supreme Court’s order.

In 2002, when the NDA government announced the ILR Project, a fierce controversy broke out. There were many who hailed the initiative, but there were many others who deplored it as not only uncalled for but as positively disastrous. Many State governments expressed strong reservations on the project. Articles appeared in newspapers and journals. Books were published on the subject. How much of this vast literature have the learned judges read? How could they rely on the NCAER’s report without reading other scholarly work? Even if the learned judges did not have time to read all the available material, should they not at least have heard a dozen scholars representing different disciplines and a few social activists before they decided to issue directions to the government?

This article will conclude with an earnest and respectful request to the Supreme Court to withdraw or at least put on hold its order, conduct further hearings, listen to a wider range of opinions, and reflect on the matter before it comes to firm conclusions.

(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

http://www.thehindu.com/opinion/lead/article2951213.ece?homepage=true

Spend Rs 32 a day? Govt says you can’t be poor

Posted in GOVERNANCE by NNLRJ INDIA on September 21, 2011

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

NEW DELHI: The Planning Commission told the Supreme Court on Tuesday that anyone spending more than Rs 965 per month in urban India and Rs 781 in rural India will be deemed not to be poor. Updating the poverty line cut-off figures, the commission said those spending in excess of Rs 32 a day in urban areas or Rs 26 a day in villages will no longer be eligible to draw benefits of central and state government welfare schemes meant for those living below the poverty line.

According to the new criterion suggested by the planners, if a family of four in Mumbai, Delhi, Bangalore or Chennai is spending anything more than Rs 3,860 per month on its members, it would not be considered poor. It’s a definition that many would find ridiculously unrealistic. Not surprisingly, the new above the poverty line definition has already created outrage among activists, who feel it is just a ploy to artificially depress the number of poor in India. The plan panel said these were provisional figures based on the Tendulkar committee report updated for current prices by taking account of the Consumer Price Index for industrial and agricultural workers.

TOI broke down the overall monthly figure for urban areas and used the CPI for industrial workers along with the Tendulkar report figures to see what these numbers translate into and how much the Planning Commission believes is enough to spend on essential items so as not to be deemed poor.

The Planning Commission suggests that spending Rs 5.5 on cereals per day is good enough to keep people healthy. Similarly, a daily spend of Rs 1.02 on pulses, Rs 2.33 on milk and Rs 1.55 on edible oil should be enough to provide adequate nutrition and keep people above the poverty line without the need of subsidized rations from the government. It further suggests that just Rs 1.95 on vegetables a day would be adequate. A bit more, and one might end up outside the social security net.

People should be spending less than 44 paise on fruits, 70 paise on sugar, 78 paise on salt and spices and another Rs 1.51 on other foods per day to qualify for the BPL list and for subsidy under various government schemes. A person using more than Rs 3.75 per day on fuel to run the kitchen is doing well as per these figures. Forget about the fuel price hike and sky-rocketing rents, if anyone living in the city is spending over Rs 49.10 a month on rent and conveyance, he or she could miss out on the BPL tag.

As for healthcare, according to the Planning Commission, Rs 39.70 per month is sufficient to stay healthy. On education, the plan panel feels those spending 99 paise a day or Rs 29.60 a month in cities are doing well enough not to need any help. Similarly, one could be considered not poor if he or she spends more than Rs 61.30 a month on clothing, Rs 9.6 on footwear and another Rs 28.80 on other personal items.

The monthly cut-off given by the Planning Commission before the apex court was broken down using the Consumer Price Index of Industrial Workers for 2010-11 and the breakdown given in Annexure E of the Tendulkar report of expenditure calculated at 2004-05 prices.

The new tentative BPL criteria was worked out by the Planning Commission and approved by the Prime Minister’s office before the government’s affidavit was submitted before the Supreme Court. The plan panel said the final poverty line criteria would be available after the completion of the NSSO survey of 2011-12.

The Montek Singh Ahluwalia-headed Planning Commission had drawn flak from the apex court which, on May 14, took exception to the poverty line definition which initially said anyone spending more than Rs 20 in urban areas and Rs 15 in rural areas should not be considered poor. “The Planning Commission may revise the norms of per capita amount looking to the price index of May 2011 or any other subsequent dates,” the court had said. So, the planners have now given a revised figure of Rs 32 for urban areas and Rs 26 for poor areas.

In their affidavit, the planners have defended their definition of the poverty line and not revised the norms, but merely updated them with the CPI for the current year. The affidavit says, “The recommended poverty lines ensure the adequacy of actual private expenditure per capita near the poverty lines on food, education and health and the actual calories consumed are close to the revised calorie intake norm for urban areas and higher than the norm in rural areas.”

Pro-poor judicial initiatives: now for a media push

Supreme Court of India

THE HINDU / NEW DELHI

Three pronouncements made on three consecutive days this month by the Supreme Court of India have brought relief to different groups of economically and socially deprived people. The beneficiaries include children sold out by poor parents to work in circuses as child labour; young men and women determined to get married crossing caste barriers and harassed for that very reason by ‘khap panchayats’; and the hungry poor across the country denied their right to food, even as thousands of tonnes of food grains rot in government godowns.

Interestingly, the media, by and large, have been playing a proactive role in bringing the issues on to the public agenda. Daily newspapers and magazines have published several articles about hundreds of children, mostly girls, who were brought to India from neighbouring countries, especially Nepal and Bangladesh, to work in circus companies that have proliferated across the country. The living conditions were inhuman, resembling slavery. Thanks to some dedicated NGOs working in India and Nepal, the Indian media have exposed the trafficking in girls, who end up being exploited and sexually abused by circus owners and their men. This is the pathetic life of girls bought for paltry sums of money from poor parents not only from adjacent countries but also from Indian States such as Uttar Pradesh and Bihar. This is the price these hapless children and their families pay to keep our children laughing. BBC News and international news agencies have also reported on the girls’ sufferings, while performing high-risk high-wire programmes.

Two decades ago, the hundreds of circus companies were in deep trouble owing to a gradual decline in public patronage. They sought State help to keep them going and save their performers and the emaciated animals that trek with them from camp to camp. The emergence of a large middle class with real purchasing power restored the economic health of the circuses, which have become one of the favourite entertainers for middle class children.

A rights-based judgment

In a rights-based judgment delivered on April 18, the Supreme Court banned the employment of children in circus companies. The court directed the Central government to take immediate steps to rescue the suffering circus workers and arrange for their rehabilitation. Passing orders on a petition filed by the Bachpan Bachao Andolan, an organisation working for children, a Division Bench comprising Justice Dalveer Bhandari and Justice A.K. Patnaik directed the central government to issue suitable notifications prohibiting employment of children in circuses within two months, in order to implement the fundamental right of children under Article 21-A of the Constitution, which guarantees the right to “free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Bench asked the government to raid all circuses and liberate children and check violation of their fundamental rights.

Another Supreme Court judgment delivered on April 19 was highly critical of the caste system and declared ‘khap panchayats” illegal. They were instrumental, the court observed, in encouraging honour killings and indulged in other atrocities against boys and girls married or tried to marry from outside their castes. The Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, wanted the government to ruthlessly stamp out the barbaric practice. A significant aspect of the judgment was that it directed the administrative and police officials to take strong steps to prevent such atrocious acts as honour killing. The court also asked for departmental action against officials who failed on this score.

It may be recalled that when States such as Haryana and Rajasthan reported a series of honour killings a few months ago, the media went all out against the spread of the crimes and the failure of the State police and administration to arrest it. When the Central government floated the idea of a ban on khaps, even Chief Ministers and ex-Minister sought to scuttle the move.

Starvation deaths

No less important is the serious concern expressed by Justices Dalveer Bhandari and Deepak Verma over the increasing number of starvation deaths in the country. They were hearing petitions relating to the streamlining of the public distribution system (PDS). The Supreme Court has once again questioned the approach of the Central government to the eradication of malnutrition and its failure to arrest starvation deaths in some areas. Justice Bhandari also questioned the Planning Commission‘s estimate that 36 per cent of the population was below the poverty line, which was inconsistent with the claim of several States, including Congress-ruled States, that the percentage was much larger. The judge wondered how the Planning Commission could fix a per capita daily income of Rs. 20 for urban areas and a per capita daily income of Rs. 11 for rural areas to determine BPL status. He also wanted the Deputy Chairman of the Planning Commission to file a detailed affidavit within a week “because the entire case rests on your figures.”

Progressive voices, including economists, scientists, and social activists, have been articulating in the media the demand for a universal PDS. When the National Advisory Committee was about to endorse it, the government ruled it out once again. At a time the Supreme Court has stepped up the pressure for a pro-people solution, a well-informed and decisive media push will certainly help.

readerseditor@thehindu.co.in

http://www.hindu.com/2011/04/25/stories/2011042552971100.htm

Law on food security and media support

Posted in FUNDAMENTAL RIGHTS, HUMAN RIGHTS, JUSTICE by NNLRJ INDIA on November 8, 2010

S. Viswanathanin THE HINDU

The Director-General of the U.N. Food and Agriculture Organisation, Dr. Jacques Diouf, announced at the Inter-Governmental Committee on World Food Security (CFS) that the combination of global food crisis and economic recession had taken the number of people affected across the world to over one billion. He described the number as “unacceptably high,” higher than in 1996 when the heads of states and governments committed themselves to reducing hunger by half at the World Food Summit.

Dr. Diouf warned that widespread hunger, malnutrition, and poverty and the inability to protect vulnerable people from the effects of shocks pointed to a “structural, more profound” problem of food insecurity that required “urgent, resolute and concerted action.” He pointed out that “the world has to grapple with a declining rate of growth in agricultural productivity, including that of major cereals.”

Meanwhile, the Global Hunger Index 2010 (GHI) has put the number of undernourished people in the world around one billion, with “a striking divide between the haves and the have-nots.” India is placed among countries that face an “alarming” situation. The GHI has identified child under-nutrition as a major contributory factor behind “persistent hunger.”

No comprehensive bill yet

With hundreds of thousands of people pushed into food insecurity, mostly because of the government policy of gradually reducing state support to agriculture, and nearly 18 months after the UPA-2 committed itself to enacting a law to guarantee food security to all, the ruling coalition is yet to come out with a comprehensive bill on the subject. The latest recommendations by the National Advisory Council (NAC), headed by Congress president Sonia Gandhi, have received mixed reactions from the media.

It may be recalled that an earlier version of the draft bill on the subject met with strong criticism from political leaders, experts, and social activists. It was then sent back to the Empowered Group of Ministers where it originated (Online and Off Line, June 7, 2010). The criticisms related to the quantity of subsidised cereals proposed; the uncertainty and confusion over the number of people eligible for relief; the entitlement for highly vulnerable groups such as the homeless; and the issue of food coupons. Another major objection was that the entitlement was limited to food grains. Activists demanded the inclusion of other essential items such as pulses, edible oil, and sugar in the relief package. The strong criticism prompted the ruling coalition to revive the National Advisory Council on June 1 to take a fresh look at the problem and come out with a new draft bill. Many of the critics were included in the NAC.

After six rounds of discussion, the NAC sent its recommendations on the National Food Security Bill to the Working Group, which is expected to prepare a new draft bill.

The first and most significant recommendation seeks to break the reluctance of the central government to extend the benefits of statutory food security above the officially delineated poverty line. The NAC has recommended that legal entitlements to subsidised food grains should be extended to at least 75 per cent of the country’s population — 90 per cent in rural areas and 50 per cent in urban areas.

The eligible 75 per cent of the people are to be divided into two groups: priority and general households. The priority households (46 per cent in rural areas and 28 per cent in urban areas) are to have a monthly entitlement of 35 kg at a subsidised price of Re. 1 per kg. for millets, Rs. 2 for wheat, and Rs. 3 for rice. The general households (44 per cent in rural areas and 22 per cent in urban areas) are to be entitled to a monthly quota of 20 kg. at a price not exceeding 50 per cent of the current Minimum Support Price for millets, wheat, and rice.

Where time is of the essence, the proposal to demarcate the population into ‘priority’ and ‘ general’ households will mean red tape, bureaucratic high-handedness, and delay in implementing a vital scheme. Experience teaches us that in such a system, the weakest and the poorest tend to be left out of the benefits. Phased implementation also weakens the concept of entitlement. Although there are recommendations relating to legal entitlements for child and maternal nutrition, provision for community kitchens, and so on, the enabling programmes are only to be developed “as soon as possible.”

Universal PDS is the obvious answer

The NAC’s failure to go for a universal public distribution system, which many experts including Dr. M.S. Swaminathan have been advocating, suggested a loss of political nerve. The sound and progressive course would have been to learn from the successes of Kerala and Tamil Nadu in implementing a universal PDS or something close to it. A universal PDS, which ensures that nobody is excluded but where a process of self-selection will mean the well-off do not draw the benefits in any significant measure, is the obvious answer to the worst forms of mass hunger and chronic food insecurity. Unfortunately, as Jean Dreze, economist and NAC member, pointed out in his statement of dissent, the advisory body “came under a lot of pressure to accommodate constraints imposed by the government” and the final result was “a minimalist proposal that misses many important elements of food security.”

Media coverage of the big issues relating to the challenge of mass hunger, especially in the wake of the global crisis, has been, on the whole, sound. The case for early food security legislation was taken to the people. Major newspapers, in both English and Indian languages, have published regular reports and analytical articles on the contentious issues. The Hindu has played a leading role in this, with focussed and in-depth analytical coverage and clear-sighted editorial advocacy of a universal PDS. But there can be no room for complacency in this situation. Food insecurity on this gigantic scale in rising India must be seen in context, in its inter-relationship with other aspects of the political economy, especially the crisis of agriculture and livelihood in the rural economy. Researching these realities and the issues raised by them, and covering them interestingly and accessibly, is a big challenge and opportunity for socially responsible and enterprising journalism.

readerseditor@thehindu.co.in

%d bloggers like this: