SemVIII.compesatoryDiscrimination.manishKumar.84

A PROJECT ON

“GOVERNMENTAL GOVERNMENTAL INTIATIVES AND

SCHEDULED CASTE AND SCHEDULED

TRIBE: EFFICACY AND IMPEMENTATION”

Submitted By

MANISH KUMAR BA LLB (HONS) Semester VIII Batch XIII SEC- B Roll No. 84

Submitted To

Mrs. Shraddha Rajput (Faculty: Compensatory Discrimination)

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR CHHATTISGARH

Submitted On 6TH APRIL 2017

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ACKNOWLEDGEMENT

First and foremost, I would like to thank my Compensatory Discrimination teacher  Mrs. Governmental Intiatives And Scheduled Caste Shraddha Rajput for offering this subject, “Governmental And Scheduled Tribe: Efficacy And Impementation ” and for her   valuable guidance and

advice. She inspired me greatly to work in this project. Her willingness to motivate me contributed tremendously to my project. I also would like to thank her for showing me some example that related to the topic of my project.

Besides, I would like to thank the Hidayatullah National Law University for providing me with a good environment and facilities to complete this project.

Last but not least, I would like to thank all my friends who helped me do this project by sharing their ideas when we combined and discussed together.

 _____________________   _____________________ 

MANISH KUMAR  Roll No. 84 Sec. B

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CONTENT INTRODUCTION ..................................................................................................................04 OBJECTIVE...........................................................................................................................05 RESEARCH METHODOLOGY...........................................................................................05 Chapter 1-Constitutional Mechanism For Uplift Of Scheduled Castes and Scheduled Tribes........................................................................................................................06 

1.1 Fulfilment Of Constitutional Mandate –   How Far? How Fair?..................07

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1.2 Untouchability and Atrocities....................................................................08

Chapter 2: Governmental Intiatives...........................................................................11 

2.1 Legislations (PCR and PoA).....................................................................11 o

2.1.1 Untoucahbility and the Prevention of Civil Rights act, 1955........11

o

2.1.2 Atrocities On Scheduled Castes and Scheduled Tribes and the SC&ST (Prevention of Atrocities) Act, 1989....................................................12

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2.2 Governmental Policies .............................................................................15 o

2.2.1The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005...15

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2.2.2 The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012......................................................................22

CONCLUSION..........................................................................................................27 REFERENCE............................................................................................................28

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Introduction: Scheduled Castes (SCs) and Scheduled Tribes (STs) are among the most disadvantaged socio-economic groups in India. With its focus on ‘faster, sustainable and more inclusive growth’ the 12th Five Year Plan highlights that conc erns of the poor, the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, minorities, differently abled and other marginalised groups must be addressed for growth to be inclusive. The Government of India has enacted progressive legislation, programmes and schemes for the development and empowerment of the SCs and STs. The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA); The Provision of the Panchayats (Extension to the Scheduled Areas) Act, 1996; Minor Forest Produce Act 2005; and the Tribal Sub-Plan Strategy are focused on the socio-economic empowerment of STs. The Land Acquisition Bill, which has been renamed as The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2012 has a separate Chapter to protect the interests of SCs and STs. The Parliament of India passed The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Bill, 2013 in September 2013. This bill aims to eliminate the inhuman practice of manual scavenging and rehabilitation of liberated manual scavengers, all of them who belong to the Scheduled Castes. The Government of India also has special schemes to enable access to opportunities including scholarships for education, financial support and skill building for setting up enterprises, reservations in jobs, and special courts to address instances of atrocities and violence. Through the Scheduled Caste Sub Plan (SCSP) and the Tribal Sub Plan (TSP), the Government of India is channelling funds from the Planning Commission for the development of SCs and STs respectively. Of the total Plan budget, as of 2001, the Government of India has earmarked 16 per cent for the development of SCs and 8 per for the development of STs, in the Union and State Budgets. Observing the number of policies and plans opted by the government the scope of the project  becomes very much wider but given the limitation the project focuses on some major legislations and policies i.e Prevention of Atrocities act 1989 and Protection of Civil Rights Act 1955, The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 and The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 4

Objective: 

To analyse the legislations bought government forward by the government to improve the situation of Scheduled Caste and Scheduled Tribes in Society .

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To analyse the policies bought government forward by the government to improve the situation of Scheduled Caste and Scheduled Tribes in Society .

Research Methodology:

The objective of this project is to analyse the legislations and policies bought government forward by the government to improve the situation of Scheduled Caste and Scheduled Tribes in Society. Design of the study: The research is descriptive and analytical in nature. This research paper is descriptive and analytical –  based on secondary sources, i.e., books and electronic sources (internet). Books and other references as guided by Constitution of India have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred.

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Chapter 1-Constitutional Mechanism For Uplift Of Scheduled Castes and Scheduled Tribes The deep concern of the framers of the Constitution for the uplift of the Scheduled Castes and Scheduled Tribes and Other Backward Classes is reflected in the elaborate constitutional mechanism set-up for their uplift. Article 17 abolishes Untouchability. Article 46 requires the State ‘to pr omote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Article 15(4) refers to the special provisions for their advancement. Article 16(4A) speaks of “reservation in matters of promotion to any class or classes of posts in the services under the State in favour of SCs/STs, which are not adequately represented in the services under the State’. Article 338 provides for a National Commission for the Scheduled Castes and Scheduled Tribes with duties to investigate and monitor all matters relating to safeguards provided for them, to inquire into specific complaints and to participate and advise on the planning process of their socio-economic development etc. Article 330 and Article 332 of the Constitution respectively provide for reservation of seats in favour of the Scheduled Castes and the Scheduled Tribes in the House of the People and in the legislative assemblies of the States. Under Part IX relating to the Panchayats and Part IXA of the Constitution relating to the Municipalities, reservation for Scheduled Castes and Scheduled Tribes in local bodies has been envisaged and provided. Part IX and Part IXA of the Constitution respectively permit the legislature of a State to make  provision for reservation of seats in Panchayat and Municipalities in favour of backward classes of citizens. Article 340* of the Constitution provides for appointment of a Commission to investigate the conditions of Backward classes. Article 16(4) and 16(4A) respectively permit reservation of appointments or posts and in matters of promotion in favour of backward classes not adequately represented in the services under the State. Article 15(4) permits the State to make special provision for the advancement of any socially and educationally backward classes of citizen. In addition to these, there are also other

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Constitutional provisions for the welfare and socio-economic empowerment of the Scheduled Caste, the Scheduled Tribes and other backward classes

1.1 Fulfilment Of Constitutional Mandate  –   How Far? How Fair?

In spite of this manifest, avowed and determined concern of the Constitution, the objectives have not been fully achieved and whatever has been done has been done hesitatingly, halfheartedly and as a measure of concession forgetting that in this area we are dealing with Constitutional rights and not concession to those classes. It is instructive to examine how the socio-economic, legal and political factors inter-play to generate a particular matrix of social dynamics. The text of the Constitution created a lofty mix of Fundamental Rights and a set of Directives enjoining upon the State the obligation to  promote and to secure to the citizens, the enjoyment of rights that provide the citizen an environment allowing his/her growth and development with social justice, equal opportunity, right to work and access to basic needs and opportunity without discrimination. While the text created a noble and a sanguine texture, the key players were the State, the legal system, the dynamics of social development and the social forces generated by the socio-political  processes. The linkage between these players provides some explanations to the path that the nation has traversed in economic growth, social development and pursuit of equal  justice. The processes of economic development do not necessarily lead to equitable income distribution. In fact, these often result in appropriation of national and social resources by a small percentage of the people. While over the years, the social services in the field of education, health, transportation and tertiary sectors have increased, there has been an inherent distortion in their universal access. Typically in this paradigm, the center has continuously appropriated access to every aspect of development of services and resources at the cost of vast periphery. Policy instruments loaded with different objectives produce a  paradoxical regime of results, which is fairly seen in the areas where the Constitution assigned the role of basic font of delivery to the State. The legal regime also confronts us with paradoxes. While the legal text is explicit in seeking remedies, the implementation appears to evade performance. In implementation of laws and the working of the legal system several trends emerge. Laws and legal processes are not self executing; they depend on the players such as the administrative structure and its processes, 7

the judiciary with the anticipation that the social attitudes are driven by enlightened notions -: equity, social justice, fair play. However, the responses of the players in the implementation of laws protecting the weak, the oppressed, women and children and the socially disadvantaged have over the years become increasingly indifferent. The injustices have been allowed to persist and the system has failed to provide for self-correction. In implementation and in interpretation of the Constitution and law, distortion and denial of the rights have crept in. A related issue of social dynamics is the opportunity and the access to the disadvantaged to take advantage of forums of the enforcement process and social mobilization. The  polarization of castes and classes in the recent years across the society has shown disturbing trends, in as much as the administrative system, the judiciary, the legal processes reflect the social reality of a given area or region. Enforcement agencies have themselves responded to these urges for social protests and desire for enforcement using the legal and social processes with indifferences and indeed ostensibly with resistance. Increasingly it was shown that whereas processes were available to the disadvantaged, the weak, the oppressed, women and children, access was denied owing to its cost and remoteness. Even when the State created some shelters through various form of Legal Aid to Scheduled Castes, women and to the oppressed, they were reduced to tokenism owing to the quality and availability. Indeed, the higher levels in judiciary intervened with vigour against the injustice manifest in the system in the form of bonded labour, child labour, crime against the women and Scheduled Castes and tribals etc. It is pertinent to note that the legal and institutional processes of redressal where provided are available only formally and have made a little or no impact. The disadvantaged sections of the society have difficult access even to the shelters and sanctuaries created for them under the law. The manner and frequency with which social protests have, in some cases, been snuffed out by the very system created to protect it, is revealing. This is the major challenge for the system which incorporates in its formal text the creation and the sustenance of a civil society. 1.2 Untouchability and Atrocities

Article 17 of the Constitution abolished untouchability. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent atrocities against the Scheduled Castes and the Scheduled Tribes. A glance at the number of cases registered under the Protection of Civil Rights Act, 1955 and the Scheduled Tribes 8

(Prevention of Atrocities) Act, 1989 (Table 9.1) shows that though total number of cases under these Acts show a declining trend in recent years yet the high number of cases still registered under these Acts is a grim reminder of the unfortunate fact that atrocities against the Scheduled Castes and the Scheduled Tribes and untouchability continue unabated even today. The efforts to ensure adequate representation for Scheduled Caste and Scheduled Tribe in higher levels of public services are perceived by the disadvantaged groups as having received a set back following certain judgements of the Supreme Court. In Preeti Srivastava’s1 case, a five Judge Bench of the Supreme Court held that there should be no reservation in admission in Ph.D., etc. The Medical Council of India was directed to consider the percentage of relaxation of marks for admission in post-graduation. In Vir Pal Singh Chauhan’s2 case and Ajit Singh’s case3,  the Supreme Court by two-Judge Bench and five-Judge Bench respectively held that reserved candidates promoted on applying the rule of reservation should not gain seniority until the general candidates catch them up.

The elbow right given

is only in cases where the reserved candidate had already been promoted to the next higher  post. Article 16(4A), was interpreted as not creating a right for reservation in favour of either the Scheduled Castes or the Scheduled Tribes . It was further held that the reverse discrimination begins when protective discrimination ends. In Post Graduate Institute of Medical Institution & Research Center, Chandigarh Vs. Faculty Association * case, it was held that single post should not be reserved. Pursuant to judgements in Sabarwal’s case1 and Ajit Singh’s case, etc. Government has from time to time since 1996 amended the departmental orders providing for reservation in services. These amendments have caused widespread dissatisfaction amongst Scheduled Castes/Scheduled Tribes. A feeling persists amongst them that in interpreting the words “consistently with maintenance of efficiency of administration” occurring in Article 335 of the Constitution, the main purpose and thrust of the provision has not been given due consideration. It is also complained that Government has also gone beyond the mandate of the Supreme Court in certain respects while amending the reservation orders. There have been demands for taking remedial steps by amendment to the Constitution so as to allay widespread dissatisfaction and apprehension amongst the Scheduled Castes and the Scheduled Tribes. Restoration of pre-1996 position has been suggested to be necessary for

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ensuring adequate representation of Scheduled Castes and Scheduled Tribes in public services as mandated by the Constitution. The Constitution (81 st Amendment) Act, 2000 has by introducing Article 16(4B) removed the obstacles in the way of treating previously unfilled vacancies as a separate class of vacancies. Further amendments to the Constitution may be necessary in case the position of reservation as it existed prior to 1996 is to be fully restored. Reservation for other backward communities in Central services was provided only in 1990 and became operational from 1993 onwards. Sufficient statistical data are not yet available to draw any definite conclusions to the extent, their reservation has improved in the central services. The adequate representation of backward classes is, however, still a far cry and special efforts need to be made for effectively enforcing reservation of backward classes to achieve their adequate representation in central services.

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Chapter 2: Governmental Intiatives 2.1 Legislations (PCR and PoA)

The scheduled caste and schedule tribes in our country constitute the weakest and the most vulnerable sections of our society. The members of the scheduled castes due to centuries old  practices of untouchability, have been for been forced to occupy the lowest strata of the traditional socio-economic structure deprived of their rights over the productive resources and due entitlements of their equitable return. On the other hand members of schedule Tribes have been living in geographical isolation and are thus at different stages of the so-called economic development but with plentiful resources at their command. Framers of the Constitution have kept in view the distinct nature of the problems of the two groups while making provisions for their protection, development and to bring them into the mains stream. 2.1.1 Untoucahbility and the Prevention of Civil Rights act, 1955

The scheduled caste who have been known by different names at different times have been discriminated on gronds of untouchabiity and denied access to several services open for others Untouchability thus became the root cause of backwardness. Since untouchability still  persisted in different forms, the framers of Indian Constitution took note of this aspect and made necessary provisions. Under article 17 of the constitution, Untouchabiltiy has been abolished and its practice in any form is forbidden. To make the practice of Untouchability in any form, punishable the Parliament enacted the Untoucabiltiy (offence) Act, 155. The  provisions under the Act were not found to be effective, hence more stringent punishments were incorporated in the Act by amendment in the year 1976. The Act was also renamed as the Protection of Civil Rights (PCR) Act, 1955. The PCR Act, 1955 provides penalties for preventing a person on the ground of untouchability, from entering the place of public worship and offering prayer or taking water from any tank, well or spring. Besides, enforcing any kind of social disabilit y such as denying access to shop, restaurant, hotel, public hospital or educational institutions or any kind of  public entertainment or denying the use of any road, river, well, tank, wate r tap, bathing ghat, cremation ground etc. Also attract punishment under the provisions of this Act. Offences under this act are cognizable as well as non-compoundable. The Act provides for awarding minimum punishment of imprisonment for one month and a fine of Rs. 100 to the maximum imprisonment for six months and a fine of Rs. 500. For the second offence the punishment 11

may range from imprisonment for six months and a fine of Rs, 200 to imprisonment for one year imprisonment and a fine of Rs. 500. For the third and subsequent offences the  punishment ranges from one year imprisonment and a fine of Rs. 500 to imprisonment of two years and a fine of Rs.1000. the offences, except when punishable with imprisonment for a minimum term exceeding three months, may be tried summarily by a Judicial Magistrate. The Act also provides for imposition of collective fin on the inhabitants of an area who are concerned in, or found abetting the commission of an offence punishable under this Act. It also empowers the State Governments to take such measures as might be necessary for ensuring that the rights arising from the abolition of Untouchabiltiy. These include setting up of Special Courts for trial of offences under the Act. The Act also charged Central Government with the responsibility to coordinate the measures taken by the state government and place a report on the table of each house of Parliametn every year on the working PCR Act, 1955. The Central Government has so far laid 13 reports covering period upto 1992. For carrying out the provisions of this Act Central Government have framed Rules viz. PCR Rules, 1977. 2.1.2 Atrocities On Scheduled Castes and Scheduled Tribes and the SC&ST (Prevention of Atrocities) Act, 1989

Inspite of the measures taken by the State Governments and the Central Government the dimension of exploitation of Scheduled Castes and perpetration of atrocities on them remained unabated. In 1974 broad categorisations of different "forms of atrocity" were specified and State Governments w ere asked to famish information according to four different categories of atrocity viz. (i) murder (ii) violence resulting in grievous hurt (iii) rape (iv) serious mischief or arson in respect of SCSI persons and their properties . The data received on the basis of above categorisation revealed that the nets — tires taken by the governments were not effective enough to curb the incidents of atrocities on SCs/STs . Since PCR Act, 1955 did not cover cases of atrocities on SCs/STs a vital step to prevent atrocities on SCs & STs was taken by enactment of another law by the Parliament in 1989 viz: the Scheduled Castes & Scheduled Tribes (Prevention of atrocities) Act, 1989 (PAA). This Mt which received the assent of President on 11-09-1989 came into operation w.e. f. 30-1-90. One of the salient features of this Act is that atrocity on SC & ST has been defmed (in Section 3 of the Act) for the first time The offences under this Act are cognizable and non12

 bailable. The offences under Sub-Section 3(l) are punishable with imprisonment for a term not less than six months but which may extend to five years and with fine . These include forcing a SC/ST person to drink or at any inedible or obnoxious substances; dumping excreta, waste matter, carcasses or any other obnoxious substances in his premises or neighbourhood; forcibly removing clothes; parading naked or with painted face; wrongfully occupying or cultivating any land owned by or allotted to SC/ST; compelling or enticing him to do bepr/  bonded labour, forcing or intimidating him not to vote or to vote to a particular candidate; instituting false, malicious or vexatious suit or criminal /legal proceeding against SC/ST  person; intentionally insulting or intimidating with intent to humiliate in any place within  public view; outraging the modesty of or committing rape on SC/ST woman; corrupting or fouling any source of water used by members of SC/ST; denying SC/ST people his right of  passage and causing him to least his house, village or other place of residence. Sub•Section (2) of Section 3 relates to serious crimes like fabrication of false evidence, mischief by fire or explosive substance, interfere with evidence and other matters. These offences are punishable with imprisonment for seven years or more or for life or for capital  punishment. This sub-section also prescribes enhanced punishment for a public servant for committing atrocities on SCs & STs . Section 4 of the Act prescribes punishment to a public servant ,for neglect of his duties under the Act. Section 16 of the Act also provides for community fine in cue of offences committed against SCs & ST, by a community or the inhabitants of an area. Another salient feature of the Act is the identification of - atrocity prone area" and of "persons" likely to commit offence and extemment of such persons from the area included in "Scheduled Areas" or "Tribal Areas" as referred to in Article 244 of the Constitution of India. For the purpose of speedy that of offences under this Act State Governments are required to set up Special Courts in each District (Section 14) and to appoint a Special Public Prosecutor for conducting the cases under the Act in the Special Courts (Section 15). For carrying of the provision of this Act , the Central government have also Notified Rules, Viz. the SC & ST (POA) Rules; 1995 which prescribe measures to prevent atrocities on SC & ST, procedure for conducting investigations by police and norms for relief and rehabilitation of victims and their families. Under clause 4 of Section 21 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the Central Government is required to co-ordinate the measures taken 13

 by the State Governments and to place on the table of each House of Parliament every year, a report on the measures taken by itself and by the State Governments. After enactment of SC and ST (Prevention of Atrocities ) Act, 1989 from 31-1-90, Ministry of Welfare, the Nodal Ministry for matters relating to Scheduled Castes

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2.2 Governmental Policies 2.2.1The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 HIGHLIGHTS OF THE BILL

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 was drafte d to fulfill the need for a comprehensive legislation to give due recognition to the forest rights of tribal communities. These rights were not recorded while consolidating state forests during the colonial period as well as in independent India.

Recognizing the symbiotic relationship

 between tribal people and forests, the National Forest Policy, 1988, made provisions to safeguard the customary rights and interests on forest land of tribals. In order to implement these provisions, the Ministry of Environment and Forest (MoEF) issued a set of six circulars on September 18, 1990 which decreed that pre-1980 occupation of forest land would be eligible for regularization provided the State Government had evolved certain eligibility criteria in accordance with the local needs and conditions. The State Governments, however, failed to implement the 1990 Guidelines.

Meanwhile, a Supreme Court order led to large

scale evictions by the Forest Departments of various states. Following mass protests by tribal communities, the MoEF issued supplementary guidelines on February 5, 2004 to address the issue of recognizing the legal right of tribal communities to forest land and resources. However, the Supreme Court issued a stay order on the Guidelines. Key Features Rights of Forest Dwelling Scheduled Tribes 

The Bill seeks to recognize and vest forest rights in forest dwelling Scheduled Tribes (FDSTs), where they are scheduled, with respect to forest land and their habitat. The forest rights in the core areas of National Parks and Sanctuaries shall be granted on  provisional basis for a period of five years from the date of commencement of this Act.

If the holders of such rights are not relocated within five years with due

compensation, the rights would become permanent. The rights can be inherited but they are not transferable. 

The Bill delineates 12 rights of FDSTs over a variety of subjects. The rights include: (a) living in the forest for habitation or for self cultivation for livelihood, (b) community rights such as nistar ∗  , (c) right to own, use or dispose of minor forest  produce, (d) conversion of forest village to revenue village, (e) conversion of pattas or leases issued by any local authority or any state government on forest land to titles, 15

and (f) other traditional customary rights. Customary rights exclude hunting, trapping or extracting body parts of any wild animal.

FDSTs also cannot indulge in any

activity that adversely affects wild animals, forests and the biodiversity in the local area and need to ensure that adjoining catchments areas and water sources are adequately protected. 

Forest rights of FDSTs would be subject to the condition that such communities had occupied forest land before October 25, 1980 [The Forest (Conservation) Act, 1980 came into force on this date]. The Bill specifies that no FDST shall be evicted from forest land under his occupation till the recognition and verification procedure is completed.

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The Bill states that forest rights would be vested on such land whi ch is occupied by an individual or family or community when the Act comes into force. The rights would  be restricted to the area under actual occupation and shall not exceed an area of 2.5 hectares per nuclear family. The title would be registered jointly in case of married  persons and in the name of the single head in case of single member households.

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Forest rights would be conferred free of conditions such as Net Present Value (NPV) and compensatory afforestation for diversion of forest land.

Under the Forest

(Conservation) Act, 1980, the state government or any other authority cannot divert forest land for non-forest purposes without prior approval of Government of India. In case it is diverted, a certain amount of money (NPV of the land) has to be deposited with the government for purposes of compensatory afforestation, and the State government has to keep aside a proportionate area of land for afforestation. Authorities for Vesting Forest Rights 

The Gram Sabha, a village assembly of all adult members of a village, shall have the authority to initiate the process of determining the nature and extent of individual or community forest rights that may be given to FDSTs within the local limits of its  jurisdiction under this Act.

The Gram Sabha is empowered to receive claims,

consolidate and verify them, and prepare a map delineating the area of each recommended claim in such manner as may be prescribed for exercise of such rights. It would then pass a resolution to that effect and forward a copy to the Sub-Divisional Level Committee (SDLC).

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The SDLC, which shall be constituted by the State Government, would examine the resolution passed by the Gram Sabha and prepare the record of forest rights. It would then be forwarded to the District Level Committee (DLC) through the Sub-Divisional Officer for a final decision. The DLC would be the final authority to approve the record of forest rights prepared by the SDLC.

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A State Level Monitoring Committee would be formed to monitor the process of recognition and vesting of forest rights. The Committee would submit returns and reports to the nodal agency (the ministry dealing with Tribal Affairs). The SDLC, DLC and the State Level Monitoring Committee would consist of officers from the departments of Revenue, Forest and Tribal Affairs at the appropriate level as may be  prescribed.

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If a person is not satisfied by the ruling of the Gram Sabha, he can file a petition to the SDLC who would consider and dispose of such petition. If a person is not satisfied  by the decision of the SDLC, he can petition to the DLC within 60 days of date of decision of the SDLC. The DLC’s decision would be final and binding.

Penalties for Offences 

In case a person is found guilty of contravening or abetting the contravention of the  provisions of the Act, engaging in unsustainable use of forest or forest produce, killing any wild animal or destroying forest or any other aspect of biodiversity or felling trees for any commercial purpose, he shall be punished with a fine which may extend to Rs 1,000. In case the offence is committed more than once, the forest rights of the guilty person would be derecognized for such period as the DLC, on the recommendation of the Gram Sabha, may decide. The penalty would be in addition to any other law for the time being in force.

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If members or officers of authorities and committees commit an offence, they would  be deemed guilty and can be fined up to Rs 1,000.

KEY ISSUES AND ANALYSIS

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, aims to recognize and enforce the rights of FDSTs to forest land and resources. The main challenge of the Bill is to harmonize the potentially conflicting interest of recognizing forest rights of FDSTs while  protecting forests and wildlife resources.

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Lack of Data

Although the Bill proposes to recognize and vest forest land rights to FDSTs, there are no reliable estimates of the number of families who will be benefiting from the proposed legislation. Secondly, although the government estimates that there are around 2-3 million  people living inside India’s protected areas (national parks and sanctuaries), there is no census of the number of FDSTs residing within the core areas of national parks and sanctuaries1.

Therefore, it is not possible to calculate how much forest land would be

required in order to implement the provisions of the Bill. Tribal Rights vs Environmental Conservation Differing Viewpoints

There are three main streams of thought regarding this issue. Some experts say that tribal communities have lived in forests for centuries, and granting them the formal right over forest land is just undoing a historical injustice. On the other extreme, some conservationists say that certain species of animals (such as the tiger) cannot co-exist with humans, and there is a need to reserve at least some parts of forests to conserve these species. They also say that increased human habitation in forests will cause depletion of forest cover, resulting in significant ecological costs. A third view is that traditional forest dwellers help in preserving forests, and giving them land rights would actually help in ecological conservation. However, there does not appear to be any clear evidence to conclusively support any of these views. Some of these issues are discussed below. Allotment of Land

The Bill prescribes 2.5 hectares as the upper limit of forest land that an FDST nuclear family may be allotted. However, there is a possibility that it might result in elimination of legal  protection for forest cover, which could lead to heavy ecological damage2. For instance, the  possible depletion of watershed forests of Central India, which allow penetration of rain water into the sub soil, could lead to drying up of rivers such as Narmada, Tapti, Mahanadi, Godavari, Krishna, and Cauveri.

The counter-argument is that the Bill only seeks to

recognize the forest rights of FDSTs who have been cultivating the forest land for

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M.D. Madhusudan, “Of Rights and Wrongs: Wildlife Conservation and Tribal Bill”, ( Economic and Political Weekly), November 19, 2005 (see http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9360&filetype=html) 2 P.V. Jayakrishnan, “Is there a need for this Bill?”, (Seminar), No. 552, August 2005, (see http://www.indiaseminar.com/2005/552/552%20p.v.%20jayakrishnan.htm) 18

generations.

In any case, the total forest land under encroachment is estimated by the

government at 13.43 lakh hectares, which amounts to about 2% of the recorded forest area in the country.3 It is also possible that confiscating forest land from the tribal families, who possess more than 2.5 hectares of land, could lead to further impoverishment of tribal communities. Core Areas

The Bill grants forest rights to FDSTs in core areas of National Parks and Sanctuaries  provided they are relocated within five years. If relocation does not take place within the  prescribed time period, the holder would get permanent right over forest land. Therefore, there would either be large scale relocation of tribal communities or they would get  permanent right over land in core areas. Given India’s poor track record in relocating people affected by development projects, such as the Narmada Dam, or from sanctuaries such as Sariska and Gir,4 the possibility of large scale relocation from core areas raises the spectre of loss of livelihood and hardship for FDSTs. There could also be an argument against advocating coexistence between wild animals and tribal communities. Certain species such as tigers, rhinos, and elephants are vulnerable to  pressures from human land use. These species are t ypically large-bodied, slow breeding, need large areas, and vast resources for survival.

Some experts argue that it might be more

realistic to identify protected areas, which consist of National Parks and Sanctuaries (about 4.7% of India’s geographical area) as inviolate while areas outside such reserves could be utilised to serve the needs of tribal communities.5 Coverage 1980 ‘cut-off date’:

The Bill takes October 25, 1980 as the cut-off date for vesting and

recognizing forest land rights of the tribal community. However, the Bill does not specify the kind of evidence that FDSTs would require to prove their occupancy of forest land before 1980. Although states such as Maharashtra have adopted more effective procedures than just 3

Bela Bhatia, “Competing Concerns”, (Economic and Political Weekly), Nov 19, 2005 (see http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9359&filetype=html 4 Ghazala Shahabuddin, Ravi Kumar, Manish Shrivastava, “Pushed over the Edge”, (Economic and Political Weekly), Aug 6, 2005 (see http://www.epw.org.in/showArticles.php?root=2005&leaf=08&filename=8950&filetype=html) 5 Valmik Thapar’s Dissent Note in the Report of the Tiger T ask Force (Joining the Dots) set up by the Ministr y of Environment and Forest (see http://projecttiger.nic.in/TTF2005/pdf/full_report.pdf). 19

documentary evidences (oral testimonies, evidence of elders of the village etc.) for verifying claims, it is not mandatory for every state to adopt such practices. Therefore, there might be a case for specifying a set of admissible evidences in the Bill itself.

Also, it is unlikely

that FDSTs would have the required documentary evidence to prove their occupancy over forest land before 1980 6. Thus, in order to minimize evictions, a case could be made for settling the claims of FDSTs on the basis of current occupancy of forest land. Exclusion of certain communities : The Bill only recognizes forest rights of FDSTs who are

defined as “Scheduled Tribes who primarily reside in forests  and includes the Scheduled Tribes pastoralist communities and who depend on the forests or forest lands for bona fide livelihood needs.” Other communities who depend on the forest for survival and livelihood reasons, but are not forest dwellers or Scheduled Tribes, for instance in large sections of Chattisgarh and forest tracts of Uttaranchal22, are excluded from the purview of the Bill. This could lead to large-scale eviction of such people and increase social tension among the various forest communities. The Bill also specifies that FDSTs would be granted forest rights only in places where they are scheduled. However, such a clause could lead to denial of rights to tribal communities on the ground that they do not reside in the area where they are scheduled even though many tribal people have been displaced due to development projects and creation of protected areas23. Role of Gram Sabha

Although the Gram Sabha has been given the power to initiate the process of determining forest rights, the final decision rests with the DLC. The DLC is also the authority that would decide the period for which an FDST’s forest rights is to be derecognized in case of repeated contravention of the provisions of the Act. Although the Statement of Objects and Reasons of the Bill envisages involvement of democratic institutions at the grassroots level, the Gram Sabha does not have the power to recognize forest rights or enforce such rights. Eviction and Relocation

The Bill does not place any explicit restriction on the methods that can be used to remove non-eligible forest dwellers. This is a concern, given the history of cases where brutal force has been used to evict tribal families. The Bill mentions that FDSTs would be relocated from

6

Madhuri Krishnaswamy, “One Step Forward, Two Steps Back”, (Economic and Political Weekly), Nov 19, 2005 (see http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9362&filetype=html 20

core areas of National Parks and Sanctuaries with due compensation. However, the Bill does not clarify exactly what kind of compensation would be offered to the tribal people, what recourse they would have if such compensation is not satisfactory or is altogether denied. Definitions

Certain terms mentioned in the Bill have not been defined. It could lead to difficulty in implementing the provisions of the Bill. Clause 3 (j) mentions “t he right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally  protecting and conserving for sustainable use.” The term “community forest resource” is not defined, and hence, it is not clear whether these also include resources within government owned forests including National Parks and Sanctua ries. The term “nuclear family” has also not been defined, though each “nuclear family” has a right up to 2.5 hectares of forest land. FDSTs are defined as those “members or community of the Scheduled Tribes… who depend on the forests or forest land for bonafide livelihood needs”. The term “livelihood needs” is not defined which leaves the scope of activities allowed open to interpretation. Penalties

The Bill imposes a fine of Rs 1,000 on FDSTs in case of contravention of provisions of the Act. If the offence is repeated, the person’s forest rights might be derecognized for such  period as decided by the DLC on the recommendation of the Gram Sabha. However, the Bill does not specify whether an FDST has the right to appeal such a ruling of the DLC to a higher authority (such as the State Level Monitoring Committee) other than to a court.

The

member of a committee is also required to pay a fine of Rs 1,000 if found guilty of contravening the provisions of the Act. However, this amount might not be a sufficient deterrent.

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2.2.2 The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012

Manual scavenging is defined as the manual cleaning of latrines or the disposal of human excreta. Currently, manual scavenging is prohibited by the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, which was passed by Parliament after six states passed resolutions requesting the centre to frame a law. Over time, the Act was adopted by 23 states and all union territories. Two other states have enacted their own laws, which are similar to the central Act. Yet, as per the 2011 Census, about 23 lakh pit latrines (which are insanitary latrines) continue to exist in the country. The central government implemented two schemes, namely, the Integrated Low Cost Sanitation Scheme (ILCS) in 1981, and the Self-Employment Scheme for Rehabilitation of Manual Scavengers (SRMS) in 2007. ILCS seeks to provide funds to poor urban households to convert dry latrines to water flush latrines. SRMS was launched to provide manual scavengers with skill training, a loan and subsidy for undertaking alternative occupations. In 2003, the Safai Karamchari Andolan filed a writ petition requesting the Supreme Court to direct the centre and states to take effective steps to eliminate manual scavenging and implement the 1993 Act. In 2011, the National Advisory Council recommended steps to eradicate manual scavenging and prohibit the employment of manual scavengers. 7 On September 3, 2012, a Bill was introduced in the Lok Sabha to create more stringent provisions for the prohibition of insanitary latrines and the rehabilitation of manual scavengers. The Standing Committee examining the Bill submitted its report on March 4, 2013. Key Features 

The Bill prohibits: (a) the employment of a person as a manual scavenger, (b) the employment of an individual for the hazardous cleaning (manual cleaning without  protective gear and other safety precautions) of a sewer or a septic tank, and (c) the construction of insanitary latrines.

It provides for the rehabilitation of people

currently engaged in the profession. 

A “manual scavenger” is a person who manually cleans or disposes of human excreta in an insanitary latrine, an open drain, or a railway tra ck. An “insanitary latrine” requires human excreta to be cleaned manually.

7

“Note on Recommendations for Follow-Up Measures to Eradicate Manual Scavengers”, National Advisory Council, June 9, 2011 22



The Bill shall override the 1993 Act and state laws on manual scavenging.

Identification of insanitary latrines and manual scavengers. 

Every local authority (municipality, Panchayat, cantonment board or railway authority) has to carry out a survey of insanitary latrines within its jurisdiction. The authorities have to publish a list of such latrines within two months of the law coming into force and give notice to the occupiers to either demolish or convert them into sanitary latrines within six months.



The Chief Executive Officer of a municipality or a Panchayat may conduct a survey to identify manual scavengers.

Individuals may also self-identify as manual

scavengers. Prohibition and conversion of insanitary latrines 

Every occupier (and in some cases, owner) of an insanitary latrine shall demolish or convert the latrine into a sanitary latrine at his own cost within six months of the Act. If he fails to do so, the local authority shall convert or demolish the latrine and be entitled to recover the cost from the occupier.



State governments may provide assistance to occupiers for converting latrines. However, non-receipt of assistance shall not be a valid ground to use an insanitary latrine beyond nine months of the law in force.



Each local authority shall carry out an awareness campaign to enforce the above  provisions of the Bill.

Prohibition and rehabilitation of manual scavengers. 

Existing contracts with manual scavengers shall be void once the law is in force. However, the employer shall retain full-time scavengers on the same salary and assign them to different work.



All persons listed as manual scavengers shall be rehabilitated with a one time cash assistance, scholarship for their children, and a residential plot with financial assistance for constructing a house. One adult member of the family will be trained in a livelihood skill and given a monthly stipend of at least Rs 3,000 during training. A subsidy and concessional loan shall also be given for taking up an alternative occupation

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Implementing authorities 

Each District Magistrate and local authority is responsible for ensuring that: (i) no  person within his jurisdiction is engaged as a manual scavenger, (ii) no insanitary latrines are constructed, and (iii) manual scavengers are rehabilitated.



The Bill creates provisions for the construction of an adequate number of sanitary community latrines and the use of appropriate technological appliances for cleaning sewers and septic tanks.



The state government may appoint inspectors.

They shall be responsible for

examining premises for latrines, persons employed as manual scavengers and seizing relevant records.

• Central and  State Monitoring Committees, and Vigilance

Committees in each district shall be established to oversee implementation. The  National Commission for Safai Karamcharis (a statutory body) shall monitor implementation and inquire into complaints again contraventions of the Act. Penalty 

The penalty for employing manual scavengers or failing to demolish insanitary latrines is imprisonment of one year and/or a fine of Rs 50,000 for the first offence. Subsequent offences will be punished with imprisonment up to two years and/or a fine of Rs one lakh. The penalty for the hazardous cleaning of septic tanks and sewers is imprisonment of two years and/or a fine of Rs two lakh for the first offence, and five years and/or a fine of Rs five lakh for subsequent offences.



Offences under this Bill are cognizable and non-bailable. The Bill permits the state government to confer powers of a Judicial Magistrate of the first class on an Executive Magistrate to conduct trials. Complaints have to be made before the court within three months of the offence.

KEY ISSUES AND ANALYSIS Jurisdiction of Parliament to legislate on manual scavenging:  In 1993, six states passed

resolutions under Article 252 of the Constitution requesting the centre to formulate a law on manual scavenging, an issue under Item 6 of the State List, public health and sanitation. 24

Since the previous law was enacted under the State List, the question arises whether Parliament has the jurisdiction to enact this Bill. It could be argued that the objective of the Bill is to protect weaker sections of society, including Scheduled Castes and Scheduled Tribes from the practice of manual scavenging, that is, it is primarily about preventing employment in hazardous occupations. In view of this interpretation, Parliament may be empowered to legislate on the issue through Entry 23 (employment and unemployment) and Entry 24 (welfare of labour including condition of work) of the Concurrent List. Cost of converting insanitary latrines borne by occupiers  The Bill places an obligation on

every occupier of an insanitary latrine to convert or demolish the latrine within six months or  be penalised with imprisonment up to one year and/or a fine of Rs 50,000. The Bill does not make it mandatory for states or the central government to provide financial assistance for conversion or demolition.

This is at variance with the current policy on conversion of

insanitary latrines. Under the Integrated Low Cost Sanitation Scheme, the owner has to bear only 10 percent of the cost, while the centre bears the remaining 75 percent and the state 15  percent of the cost. The Standing Committee recommended that the centre coordinate with states to fund the entire cost of conversion to sanitary latrines.8 In the absence of financial assistance from the government, implementation of the Bill might be affected adversely. Offences and procedure for trial Applicability of summary procedure to trial of offences : Offences under the Bill are non-

 bailable, and in some cases, punishable with imprisonment up to five years. The Bill allows offences to be tried summarily. The concept of summary trials was introduced in India through an amendment to the Code of Criminal Procedure (CrPC) in 2008. Summary trials were permitted for certain types of offences, particularly those of a minor nature for which the maximum imprisonment was two years. 9 According to the CrPC, the maximum sentence of imprisonment for an offence that is tried summarily cannot exceed three months. 10  Given the nature of summary trials under the CrPC, it is unclear how offences carrying punishment of five years, as is the case in the Bill, will fit into this framework.

8

“Thirty Second Report: The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012”, Standing Committee on Social Justice and Empowerment, April 3, 2013. 9  Section 260, Code of Criminal Procedure, 1973. 10  Section 262, Code of Criminal Procedure, 1973 25

Conflict of interest between implementing and judicial authorities: The Bill permits state

governments to grant an Executive Magistrate the power of a Judicial Magistrate of the first class to conduct trials for offences under the Bill. The District Magistrate is the authority responsible for implementing the provisions of the Bill. Often, the District Magistrate is a member of the civil services (and in some states, the same person as the District Collector) and has powers of an Executive Magistrate. Several other Executive Magistrates would be in his chain of command. Granting the Executive Magistrate the power to try cases for nonimplementation of provisions of the Bill could lead to a situation where the judge is trying a case against himself or against a person who falls within the same administrative set-up. It is unclear how this conflict of interest will be resolved. Comparison with the 1993 Act and state Acts :

Twenty-three states and all union territories have adopted the 1993 Act. Two other states, Rajasthan and Himachal Pradesh, have enacted their own laws that are similar to the 1993 Act. In case of any inconsistency, the provisions of this Bill will override the 1993 Act and the state laws. Some of the Bill’s features include: 

Prohibiting the cleaning of sewers or septic tanks without protective gear.



Prohibiting insanitary latrines in comparison to the Act, which prohibited dry latrines.



A survey of manual scavengers and insanitary latrines, and conversion of insanitary latrines.



Provisions for the rehabilitation of manual scavengers.



Offences under the 1993 Act were cognizable, now they shall be non-bailable as well. The penalty for offences have been increased from a year of imprisonment and fine up to Rs 2,000 to up to a maximum penalty of five years of imprisonment and/or a fine up to Rs five lakh.



Extending its application to railways and cantonment boards.

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CONCLUSION SC and ST population had been subjugated historically. Constitution of India has recognised the fact and hence affirmative actions with respect to representation, security social and  political have been given due place. Effectiveness

Abolition of Untouchability(Art 17) , has severe implications for violators, though  publicly admonished but practiced by large number of people in India especially in rural area. Such cases goes unnoticed either due to lack of awareness or due to lack of  proper actions.



Forcing to dumping excreta(an offence under Sc and St act 1989) , Govt. is itself an offender in the case though it does not force anyone, but due to lack of opportunity almost all the staffs of municipality, railways are from SC/ST category. We can say it as 'financially forced'



Voting riots of SC and STs are many a times infringed by the dominant caste, we have seen examples where SC and ST people were not let t vote by the dominant caste  people. Moneyed/Landed people threatens them of abandonment in the times of need and they relent their secret riots. Unfortunately the law is silent in such scenario.



Temple entry/Ponds reservoirs usage/even allowing SC ST to sit on Horse's' back during his marriage is regulated by local influential caste and surfaces in the news every now and then.



PoA is inot that effective when one SC/ST caste subjugates another, we have examples of how Gond tribes in AP has been subjugated by Scheduled caste people. Intra-community mechanism should also be there.In Rajasthan we have eg of conflicts  b/w Meena and Bhil tribes.



Police/Public servant (Noida case of undressing of a family) resorts to atrocities on SC/STs.



Govt.'s intentions has not shown its result on the ground, it can be seen. As the act many a times is also used by the SC/ST people too to settle their personal scores of enmity.

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Sensitising the bureaucracy/police to curb this menace and educating people, inculcating the young minds about these things and bringing the equality concept at the fore should be the strategy.

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REFERENCE Websites 

http://www.insightsonindia.com/2015/10/21/2-critically-discuss-the-effectiveness-ofthe-scheduled-caste-and-scheduled-tribes-act-in-stopping-atrocities-against-sc-stcommunities-in-india/

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http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes/

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http://www.prsindia.org/billtrack/the-scheduled-tribes-and-other-traditional-forestdwellers-recognition-of-forest-rights-bill-2005-431/

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http://www.prsindia.org/billtrack/prohibition-of-employment-as-manual-scavengersand-their-rehabilitation-bill-2012-2449/

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