PORTION COVERED BY PROF. VINOD–
GENDER AND POVERTY
Gender and poverty have integral relationship with each other and that relationship is very Historic
Poverty in case of women have to be understood in a larger context. It’s not only economic poverty of women but also concerns the social, legal and political poverty.
Idea of Gender lies in the deepest core of Human Psychology. People may forget the faces of persons but not their gender.
This consciousness of gender is found not only in historic terms but also in pre-historic terms. There has been anthropological evidences, suggesting gender differences.
How the idea of gender is different from idea of sex?
Though sex and gender are used as interchangeable expressions but they are not the one and same thing because sex is very much biological but gender is not biological
Gender is a social and cultural construct
Idea of gender might have been found in sex but they are not identical
Nature has created two biological entities-man and women. Nature has also assigned certain roles to these sexes which are specific to their biology. Certain roles such as carrying of baby in womb and breastfeeding can only be performed by women
Anatomy and physiology of women is different from man.
But there are certain functions which are not biology specific and yet women are supposed to do that.
Functions which have nothing to do with her biology but still she has to do due to arbitrary assignment of roles, functions and duties which has nothing to do her biology and yet society expects to do her because of the idea of gender.
Gender creates a kind of ascribed status on an individual.
Functions like nurturing and cleaning a child has nothing to do with biology of women yet they are supposed to do that because of the idea of gender creates a structure where there is arbitrary assignment of roles and functions.
In some societies, these stereotypes have been challenged and upto a great extent they have been broken also by bringing the idea of equality of gender. In Europe child caring is a shared responsibility and that makes sense
In doing gender dialectics, one should not have the misconception of women versus man.
Gender discourse is basically is a discourse of negation of the idea of inequality and hierarchy based on gender.
No feminist in the world has ever demanded greater rights than man. Their fight is for right to equality and to humanizing the society and to rationalize the power structure of society.
State is not supposed to make laws that discriminate on the basis of gender.
Man has always had a dominance over women and he had been the beneficiaries of these inequalities and hierarchies of genders.
Those who are the beneficiaries of a social or power structure, they always demand the status quo. Those who are the losers and victims of the existing social structure, they always demand the dismantling of status quo.
Feminist discourse is to dismantle that status quo where women have been the losers and victims of the structure.
Certain feminist and sub-altern literatures-
Uma Chakravarti-‘Brahminical Patriarchy’ and ‘Thinking Gender doing Gender’ (relationship between patriarchy, gender, religion and caste)
Michelle Fuqua-‘History of Sexuality’ (Archeology of Sex and sexuality in Psychological terms which creates a binary that makes Human look everything in duality)
Jane Flax-‘Political Philosophy and patriarchal unconsciousness’ 1983
Martha Nussbaum-Sex and Social Justice; Sleep of Reason; Women and Human development
Sumit Sarkar and Tanika Sarkar-‘Women and social reforms in India’
Hilaire Barnet-‘Introduction to feminist Jurisprudence’
Reyna R. Reiter-‘Towards Anthropology of Women’
Aakaar Publication publishes the best sub-altern literature available in the world
Olga Sopher-‘Social transformation at the middle to upper Palaeolithic Transition’ ‘Replacement and controversies in Homosapiens’ (Archeological perspectives on gender)
WHAT GENDER DOES AND WHY WE NEED TO STUDY IT?
Because it brings about certain consequences which is destructive for a class of citizens who constitute almost half of the Humanity.
Nature has created two sexes in biological forms and it is a kind of diversity of sexes and diversity created by nature is always beautiful.
But Human mind is sometimes so corrupt and cunning that it creates inequalities of these diversities and this is what gender and patriarchy have done.
Diversity of gender has been understood by men as idea of inequality of genders.
When there is inequality, then there is a hierarchy. Both are complementary and supplementary to each other. And when there is an idea of hierarchy it give rise to idea of superiority and inferiority of structures within the hierarchy which further results into arbitrary assignment of roles and functions which also leads to arbitrary assignments of rights and resources. And there is a long chain of causation.
Man has taken more and more rights and resources and women have been assigned more and more duties and less and less rights.
This idea of monopolization and exclusion of resources has resulted into the inequality of genders. It has also resulted into a power structure in the society which creates a power relation between the genders.
Chain of causation as to how biological diversity of sex has given rise to hierarchy and inequality of genders.
Gender is a social and cultural construct and above all a psychological construct of males.
This has been created out of the vested interest of the masculinity
Males monopolized most of the rights and assigned most number of duties to female
Exclusion of material resources
Assignment of material resources is directly proportional to one’s position in social hierarchy
Such monopolization also leads to monopolization of honour and dignity.
Abusive and dehumanizing epithets present against women in Indian culture.
Such monopolization also leads to injustice in the form of discrimination.
Gender discrimination in both rural and urban India where women have meal after males.
Discrimination is manifested in ugly forms and sometimes in brutal forms.
Reading the Constitution of India from the perspective of DIGNITY
Huge incompatibility between values of the constitution and practices of the society
PATRIARCHY VIS-A-VIS CASTE AND SLAVERY
Slavery and caste are spatial and temporal-they existed in a particular geography and time though institution of caste still survives. Caste has spread in other continents but has certain limitations. But Patriarchy is a universal phenomenon
Caste and slavery are historical but patriarchy is pre-historical
Miseries and saga of suffering of women is pre-historic
Suffering and miseries of lower castes and slaves are 5000 years old. Slavery and Castes are subject matter of economy, political science, History, religion but Patriarchy is a subject matter of Archeology and Anthropology.
Slavery no longer exists in traditional sense any more.
Commonalities between Patriarchy, Caste and Slavery-
Caste and Patriarchy still survives because they are institutions sanctioned by religion
There are 5 elements of any evil institution which ensures their perpetual survival-
1. Ascribed Status-making the evil birth based. Caste and gender are ascribed status ie birth based. This element was missing in slavery. Because concept of manumission existed in case of slavery. Slaves were freed but has have never been the case with Gender and Caste.
2.Institutionalization of Evil-All three were institutionalised evils. Something which is legitimized is also institutionalized but vice-versa is not true.
3. Legitimization of Evil-All three have been legitimized evils. Before constitution of India, Manusmriti was the legal social code of Hindus. Patriarchy has been legitimized in all cultures. Slavery was also a great source of revenue. All civilizations of the world have been found on the unpaid labours of slaves. Caste and Patriarchy are no longer legitimized by the law of the land.
4.Cultural Normalization/Justification-happened with all three. Entire economy of Kingdoms were found upon unpaid labours of slaves and lower castes. Caste is undoubtedly culturally normalized and psychologically internalized as well by both victims and perpetrators. Even victims thought the suffering to be their destiny.
5. Sanctification of Evil-Patriarchy has been sanctified in religious scriptures. Caste is also a sanctified evil-a product of religion. Hindu Scriptures both fundamental and collateral mythologies are full of caste and patriarchal sanctification. They glorify and idolize caste and patriarchy. Slavery on the contrary has not been sanctified by religion. Sanctification and ascribed status is missing in case of slavery but all five elements are present in case of Caste and Patriarchy. Eg. story of Sati-Savitri, Ramayana etc
Roots of Patriarchy are somewhere in ‘SEX’
If one is unable to understand sex, then she will be unable to understand gender and patriarchy as well
Sex has always been matter of private domain especially in India. People think about it the most but talk least about it.
Idea of Profane and sacred attached with sex by religion
Nature has not created anything sacred and profane but societies and cultures have.
When people do not speak about sex, there are dangerous consequences in terms of mysteries about each other’s sexuality
Religion comes into picture when people do not talk about sex in public. Then religion starts dictating sexual moralities, taboos, myths and misconception about sex because religion has its own vested interest
Once upon a time western societies were most illiberal and conservative regarding sexuality. Victorian Morality
Some notions of do’s and don’t of morality as laid down by religion are so barbaric. For example-celibacy and virginity
Hindu religion has created and enforced these notions very stringently even to the extent of meting out horrendous punishment for violations (Manusmriti)
The reason was that if women don’t practice strictly the norms of celibacy and virginity, the entire edifice of caste will collapse down because it has been found on the notions of pollution and purity of blood.
So if a women violates the norm of celibacy or chastity, it might bring about the intermixing of the bloods of different castes which will pull down the structure of caste system.
Celibacy is such a farcical concept that it forces people to abstain from sex without even knowing what is sex and sexuality as such. In such a case it amounts to suppression of one’s sexual energy.
Most Hindus are the products of suppressed sexuality. When compared with west, this part of civilization has suffered negative consequences as a result of suppression of sexuality.
Europeans left the ideas of celibacy and virginity centuries ago. That could be one of the reasons of the magnificent scientific and industrial development there.
Renaissance came in Europe but not here because they were sexually liberated while people were sexually suppressed here by moral taboos. Europeans are no longer the product of suppressed sexuality anymore.
If people refrain from understanding and discussing sex and sexuality, religion takes over that domain and one’s entire psychology.
Suppressed sexuality results into split personality when one’s whole energy is directed towards thinking about sex one could not do sex. It hampers ones capability.
In India people talk and emphasized about celibacy the most but produce most of the children in the entire world.
Suppressed sexuality also results in criminality. Science says that it leads to psychosomatic diseases especially amongst women. Two common diseases amongst women directly linked to suppressed sexuality are-
All this has resulted in psychological abnormality.
Hinduism has so intensely immoralised sex that even basic sexual acts such as masturbation brings the feeling of immense guilt and regret. Hindu Shastras says that even one drop of semen contains thousand drops of blood.
This impression regarding masturbation is amongst both men and women. Women think that it might result in losing of virginity and brings so much psychological guilt.
Hindu culture is a suppressive culture. Two institutions of society are the biggest injustice to women-
Marriage has institutionalised suppression of women. Look at the duties of dutiful wife in Hindu Shastras.
And religion has sanctified and glorified this suppression and subjugation
Science says that women are biologically more capable than men in many terms-
Women have more capability for struggle for existence
Their life expectancy is always greater than men everywhere.
They say that if a male and a female child are dropped in water, male child will die early than female child who have greater lung capacity.
All foetus naturally grow as female foetus and it is only at later stage that some turn into male foetus and that is only when male hormones start acting. So all males are modified version of females.
Psychologically also, females are far more stronger than males.
Throughout the world, rate of suicide amongst men are much higher than females despite women having undergone historic suppression since ages. Maybe they have adapted themselves to live in adverse circumstances.
At the level of reflex sensitive also, women are more sensitive than men. Women know better the nature of good and bad touch than men.
Science does not recognise idea of gender-
Man is historically afraid and scared of two things-
1. The procreative power of women- Women have a capacity to bring another human being in the world. Men are biologically and structurally incapable of doing that.
2.Men are afraid of sexual capabilities of women- Science says that women have far more sexual capabilities than men. Due this reason only the idea of patriarchy emerged
Therefore Patriarchy has a direct relation with sexual capability of women. When man was unable to match with the sexual capability of women, man had only two options-
1. To accept the sexual superiority of women which he didn’t due to his machoistic ego
2.Forcefully control her sexuality
So men started asserting, controlling and regulating the sexuality of women.
Men applied various gross, subtle, sophisticated, brutal, barbaric and tyrannical techniques to controlling female’s sexuality. But no civilization in the world has matched the barbarity of Hindu civilization in this regard. No other civilization has gone as far has Hindus to control women’s sexuality-
To provide her as smaller universe as possible-husband, home and children and their reverence. In childhood, she had to depend upon father, in adulthood on her husband and in old age on her children.
Controlling her physical mobility-Hindu dress codes such as Saree and heavy jewellery renders women incapable of quick movements. Under Saree, there is petticoat. No women is able to walk fast (forget running) wearing petticoat. Look at the image of Bharat Mata. And unfortunately State continues to idolise and glorify it.
Asserting ownership on her each and every body parts-by chaining her in heavy jewellery from mangalsutra to armlets. Look at the women of Rajasthan. Chains are chains even if they are of gold. This chaining has been done for so long that women have psychologically internalized and accepted this bondage. Its like releasing a parrot after keeping it for years in golden cage. It will not be able to fly and ultimately come back to the cage. Likewise, women are still craving for bangles, jewelries, etc. After all these are shackles even if made of golds. Look at how her chains have turned into ornaments. Each and every part of her body represent some ownership and who she belong to. For thousands of years, these are the questions that women have never been able and allowed to ask.
To keep her always financially dependent on men-In childhood, she had to depend upon father, in adulthood on her husband and in old age on her children. That’s why women were not allowed right to property and education which would threaten patriarchy. When husband dies here, look at the intensity of her mourning for days amongst Hindus. Death of Husband also leaves her financially confused and many times they go mad on failure to fulfill the responsibilities of taking care of household and children without nay support. That’s why financial empowerment of women is so important.
To keep her empty stomach as long as possible-Hindu scriptures elaborately mention the provisions of hundreds of fasts for women only and it is there almost every other day. This fast has very intrinsic instrumental value-to stop her physical energy getting converted into sexual energy and thus rendering her sexually inactive compared to men. Thus Men prospered in this civilization by hatching conspiracy against women.
Just kill her as soon as the husband dies-Sati is the ultimate weapon of Hindu culture to control women. Since woman is property of Men so once the man dies, his property should also be destroyed in order to prevent it from getting polluted and spoiled by others. Since she is also a sexual entity, there is danger to caste structure as well if she goes and cohabit with lower caste men. So caste and patriarchy are so intrinsically interwoven that it its difficult to separate them. Not only they have created the system of Sati, Hindu scriptures provide certain other ways as well to kill women. They have sanctified and glorified it as well. Hindu scriptures say that if a women commits sati, her three generations of both father’s and husband’s side will go to heaven. In such a case, both sides pressurized her to immolate herself in the funeral pyre. For thousands of years they have been doing this. There has been recorded occasions where sons forced their mothers to commit sati. First they will drug and intoxicate her so that she fell unconscious and thereafter tied on stakes and throw her in the funeral pyre. Many gory archives regarding such happenings exist in British records. Thanks to Mughals and finally British who ended the practice.
Chastity Belt-This was Prevalent amongst Thakurs. Before going to war, they would lock this belt around their women and thereby rendering them sexually incapable. When he came back alive, then he would unlock it.
Pre-emptive Honour Killings-Rajputs before going to final war would kill their women.
Jauhar– Women collectively jumping into fire to save their chastity
Sati– No other men are scared of women’s sexuality than upper caste Hindu men who have gone on to the extent of finishing her using method son Sati etc, as sanctified religion. Lord Wellesley constituted a committee of Brahmins regarding the issue of Sati who recommended its continuance. Sati was projected as duty of Hindu women. Two kinds of sati was reported-
Sahvarna-Upper caste Hindu women had to immediately die on the funeral pyre
Anuvarna-Lower caste women had choice of dying or living
But later Lord Bentinck completely abolished it and of course he faced vehement opposition.
Story of Sita in Ramayana who was abandoned just because somebody expressed doubt about her chastity. When she was heavily pregnant, King Ram asked his younger brother Lakshman to abandon her in a deep forest. In todays world if a husband abandons her wife in such manner, it is a criminal offense. Instead of calling Rama as a criminal we idolize him as ideal man to be followed. So inhumane and barbaric and we have to ask ourselves whom we have idealised and so was the case with Yudhisthira who gambled his own wife. This was indeed a criminal offense but we call him ‘Dharmaraj’ One should read the sub-altern critique of Ramayana-SACHHI RAMAYANA by Periyar published by Lalayi Singh- Immediately after its publication, it was banned on demands of Hindu right wings. They become very violent. This violence actually reveals the true character of Hindu upper caste that they don’t believe in dialectics. When the matter reached Supreme Court, the ban was revoked.
Another good write-up is SITA NISHKASHAN. In this radical feminist write-up, character of Ram has been questioned. If Sita was unchaste because for some years she was away from Ram in the Jungle then what about Ram who was also away from her for same number of years? If Sita was all alone in the Jungle, then so was Ram. How did he managed his sexuality? There are only two possibilities-
Either he must have had sexual relationship with tribals in the jungle, or
Ram was a gay.
There is another sub-altern critique- ASURA, KALI, ROLL OF DICE, by Anand Nilkanthe.
Not all Hindus are Hindus, only Hindu upper castes are Hindus and on the rest it was imposed through a gradual process by the Process of Sanskritisation.
Bollywood keeps creating new edition to the range of Gods. New additions are Saraswati Mata and Sai Baba.
Idea of chastity has also been internalized by women. Cazed and crazy birds
Women idealizing chastity has many reasons-
Mythologies, who all have glorified it
In Hindu scriptures, unchastity is a gravest offense. (Manusmriti) If a Hindu upper caste women goes for Pratiloma (Hypo-gamy), she must be lynched in public. So they had very limited options. Either they would be lynched or burnt alive or live throughout her life as a widow. And life of a widow was worst than a hell.
Hindu scriptures are full of inhumane dictates about the LIFE OF A WIDOW–
Shaven Heads-she cannot even see her face in mirror
White and plain saree symbolizing the colourlessness in her life
Only one meal a day
No sweets-because delicacy of sweet will encourage her to take delicacy in life as well
She would live like a dead animal
She would not appear in public in any auspicious occasion because her very existence was considered inauspicious and ominous.
And all this happened for thousands of years and thanks to British who mustered courage to legislate upon it. Of course many Indian minds had consistently persuaded them for these reforms.
Women have always been considered untouchables in hindu scriptures. They have always been considered impure entities due to their menstruations.
There are still temples in the country where women are not allowed.
While Shudras were always untouchable, women were periodically untouchable.
These ideas of chastity and morality regarding women have their origin in the Hindu Scriptures which give so much importance to chastity and controlling sexuality of women. Barbaric punishments have been prescribed for upper caste women for indulging in sexual relationship with Shudras
Kamla Bashir-a radical feminist on Satyameva Jayate gave wonderful insights on honour killing. Every year 1000 men and women are killed in the name of honour. She asks the question that who has kept the honour of men in the vagina of women. If women fails in preserving that honour then her punishment is death. While men are lower castes and women are generally upper castes in the honour killings
Brutal methods such as female infanticides were devised to control sexuality of women
Hindu Rajputs who appear to care about the honour of women most have been the frontrunner in killing girl child as soon as she is born.
Padmavati-Rajputs created so much hue and cry about a fictional character. But what about the millions and millions of real Padmavatis whom they killed in the womb of their mothers.
They have killed millions of girls in wombs. And its still being done rampantly in many areas of India.
A report in British Archives reveals that in 1848, female infanticide was so prevalent that not even one girl were found in population of 10000.
So those who mercilessly killed their daughters and women, are now fighting for the honour of Padmavati.
HOW RELIGIONS PERCEIVE WOMEN?
Hinduism considers women as sinful and wicked entity which necessarily leads men to hell
Women must be strictly guarded day and night regardless of their age for ensuring the purity of blood.
Women do not care about the age and beauty of man, but only if he is a man.
It is in the very nature of women to corrupt man.
This concept is there in Christianity too-Eve corrupted Adam.
Women (including girl) should not do anything independently even in her own house.
A women who has relationship with Shudra, King shall cause her to be humiliated in public and caused her to be devoured by dogs. Vice-versa provisions for adulterous men does not exist. Because Shudra is a property of Dwija. A feudal sense of entitlement has always been there in the minds of Dwijas. So Shudras are considered untouchable for all the time except when upper caste men have to commit rape on them.
NCRB report says, that every single day, at least 3 Dalit women are raped
They are raped not because it gives sexual gratification to upper caste men but because rape is a powerful political tool in the hands of upper castes through they cause collective humiliation of Dalit community. It demolishes the moral strength of the community.
Bhagwad Gita (RSS demands it to be made a national scripture)
In Kaliyuga, Shudra will marry the upper caste women. This fear is because Hypo-gamy dismantles the structure of caste system.
Women have insatiable lust. They are a potential source of creating moral panic.
Women are difficult to control. The cunning tricks of demon are known to be unique to women.
Women are consumed by sexual passion and there sexual desire can never be overcome in all the three worlds combined.
One can sense how much man is afraid of women’s sexual capabilities
Women are not able to differentiate between right and wrong. They only wander about their own hearts subject to their own desire.
Women are innately promiscuous, fickle minded, lacking love and unfaithful to their husbands.
Dharmasutras– Women are innately sinful and are like a razor, poison, snake and fire all rolled into one.
The famous Chaupai- Dhol, Gawaar, Shudra, Pashu and Naari, all deserve to be beaten up.
Tulsidas forgot that his mother was also a naari. He wrote such kind of obnoxious provisions that even Rama could not save him from suffering and finally he died from cancer. Rama could not even protect himself. He committed suicide by jumping into Saryu River.
It also says that nobody is as wild as women who for a moment’s enjoyment does not care about the pain of hundreds of birth.
Property should be transferred only after determining the paternity of the child
A man should strike the back of a women three times a day.
This proviso has been idealized innately in the Indian Psyche. In Haryana there is a popular saying that give one strike to women when she stands and one when she sits. It has to be with split bamboo.
If a woman converse with a man in an alone place, she should be whipped publicly.
Dr. Ambedkar argued very hard against provision of whipping/lashing/caning in IPC.
There are countries like Singapore that still have such provisions
Woman is not supposed to step outside her house barring 4 situations-
1. Death of some relative
2. Child Birth
3. Natural Calamity
So not only her sexual mobility has been controlled but also her physical mobility
Adi Shankaracharya said that-
Woman is a sure-gate of hell.
He contributed a lot in creating the divine prostitution of Devadasi
Recently we heard a rape committed in a temple in Kathua. People were surprised-rape in a temple? But it is not a new phenomenon. It has a history of thousands of years. Voices and screams of infinite Devadasis have been buried in crores of Hindu temples. That’s why the innermost part of the temple is called Garbhgriha and is kept so secret.
Then some of Hindus defend their scriptures on the basis of some verses like-Yatra naari poojyate, tatra pravante Devtah but this actually never happened. What happened was the total opposite.
Why women has been deified? It’s a conspiracy to render her right-less because Devi does not need rights and properties.
Hindu Women were not supposed to have any property except Stridhan and was supposed to serve the husband faithfully even if the husband is immoral. She is to treat her husband as her God. The word PATI itself means ‘master’ and ‘owner’.
This religious duty has been enforced by Sati because every women knew her fate if her husband dies.
So Hindus have devised many ways to control women’s sexuality
Uma Chakravarti is the only feminist in India who has tries to forge a relationship between Caste and Patriarchy.
People still have blind faith for things which are old and have either ascribed status of divinity or antiquity.
Shastras are divine scriptures worth reverence and not to be questioned and if they are not to be questioned than the faith which justifies patriarchy is also not to be questioned
Our faith is very blind that motivates us to believe in anything which has been declared divine irrespective of the truth. Rigveda is revered because it is antique and so are many temples.
Others religions are also bad if not equally bad like Hinduism on the issue of controlling and subjugation of women. All religions are unanimous on subjugation of women.
No Divine scriptures were revealed to any women. Bible was revealed to Jesus, Quran to Muhammad and so on. Nobody knows about whom the Vedas were revealed to. Hindus have got a good tactic of declaring things Sanatana or Aadi. When they don’t know their History, they declared it Sanatan and that it existed ever since the beginning.
Why no scriptures were revealed to women? Why this discrimination?
Prophet had nine wives. Its true that those Hadiths are considered most authentic which have been confirmed by Ayesha-a women but yet they all are reference to Prophet and have no independent existence of their own. Same is true with Sita in Ramayana and Maryam in Bible?
But anyway, amongst Hindu, Christianity and Islam, Islam is the most progressive religion which conferred on women the rights such as equality and property long time ago when these were unheard of in Hinduism and Christianity.
The problem is that most people misunderstand Islamic provisions-
For example-The provision of polygamy in Quran was evolved to deal with a peculiar situation-
Due to extreme warfares in West Asia, many women became widows and many children orphaned and it was a huge challenge before prophet.
There is a limit of four wives but with a stringent contingent condition of equal treatment.
Complete and sudden dismantlement of the institution of prostitution.
It was never intended and meant to be entitlement for men and a right in eternity but a social responsibility.
Sadly, many Muslim societies misinterpreted it as a right of men to have four wives.
Islam granted property rights to women since its inception. Hindu women had no right to family property till very recent times. Things changed only after enactment of HMA 1955 with the efforts of Ambedkar. While in Islam, monogamy is a norm and polygamy an exception, in Hinduism, polygamy was the norm and monogamy the exception. There was no limit to no. of wives a Hindu man can have.
But there are certain problematic areas as well in Islam such as-
Two women are equal to one man when it comes to law of evidence.
A woman’s share is half of a man when it comes to inheritance
The good thing about Islam is that its Scriptures are not bad like Hinduism whose very normative framework is bad and corrupt.
Islam if bad, is only at practice and not at scriptures.
So comparatively and relatively, Islam is far more better than all other religions which granted property, succession, inheritance, divorce rights long time ago.
In Hinduism, wife couldn’t even imagine of divorce because marriage is a holy sacrament fixed in heavens.
In Islam, it is a contract, where it is possible to write the terms and conditions of the marital contract and that gives women the power and right to bargain.
Before 1955 Act, many Hindu women were subjected to Horrific cruelty and domestic violence but they had no means to get away.
Hindus especially upper caste fail to question their evil scriptures through same logic and rationality, cognitive faculties with which they question other religions and civilisation which are far more superior than Hinduism. This is inter-generational stupidity. No religious scripture in the world are as vulgar as Hindu scriptures. Their most revered scripture Rigveda is nothing but full of violence, bloodshed, conspiracies to appease gods and goddesses, killing others and huge bloodshed and animal sacrifice but Hindus yet believe it to be the source of knowledge and wisdom.
Hindu scriptures do not question these scriptures because these scriptures have provided legitimacy to their monopolization of rights and resources and still helps them in securing their socio-political dominance.
So those who are the beneficiaries of this system rarely question these scriptures. They would always go for maintaining the status quo.
But today, since Shudras have also got the right to study, they reading that how Hindu religious scriptures are nothing but a bunch of conspiracies.
Before believing anything, one should open his mind and apply his logic, rationally and scientific temperament. Don’t believe just because your parents, community or some saint has told you.
Women have subservient position.
Women have been demonised. She is a wicked entity in Bible. Eve corrupted Adam. Eve came out of the rib of Adam. Why not vice versa?
The English word ‘Evil’ has genesis in Eve. Anything wicked has to be attributed to women. They permanently established this in language and vocabulary.
Bible has no place for women.
Popular Biblical narrative is-Holy Trinity-The concept of Father, son and Holy Spirit-a complete patriarchy. This trinity tells us that that Christianity is nothing but a gay business.
Though considered very progressive because they believe in extreme non-violence but at practice vice-versa is true.
At the level of theology itself, there is something problematic.
All 24 tirthankars are supposed to be males. But one was female Mallibai. She was a courageous woman who wanted to be a Tirthankar but Jain theology believe that women is impure because of consistent menstruation and due to her insatiable sexual desire she is incapable of attaining ‘Karvalya’ or salvation. Mallibai through her self-determination stopped her menstruation and practiced celibacy and Jains were left with no choice but to accept her as a Tirthankar. But they had a considerable grudge against her and immediately after her death, they changed her name to Mallibai. And today in all Jain temples, she is depicted as a male with her male organ hanging out.
China has three main religions-Confucianism, Taoism and Buddhism
Confucius’ philosophy was based on Mysticism and is still revered by many all over the world and highly quoted as well.
But he had this great misunderstanding that women don’t have souls, only men have souls. And the result was that, killing of wives by husbands was not a crime because one cannot kill a soulless creature. For thousands of years there was no penal law in China to punish men for killing wives.
Hinduism also has a similar philosophy. It doesn’t say that women don’t have souls but rather animals don’t have souls. That was the justification for the large number of animal sacrifice in Vedic Yagnas.
OBJECTIFICATION AND COMMODIFICATION IS THE ANOTHER DIMENSION OF PATRIARCHY
Irrespective of the time, women have always been considered a sexual object by men
This is enforced time and again, by culture, religion and media.
This has been enforced so strongly that now women have been convinced that they are a commodity and their worth lies in their body. Body means an object which can be marketable. That’s why most women today crave for beauty project and spend a lot of money on it.
There are certain parameters to this objectification which have been devised by the Beholder and consumers of this object-
Fair Skin-Most beauty competitions are organised by men and very rarely dark-skinned women are praised. Dark women sometimes suffer from low-confidence. Colour doesn’t have to do anything with human values. Colour is determined by a pigment known as melanin that protects skin from ultraviolet rays. But this pigment plays an important role in cultural construction of beauty. Even men are also trying to become fair-skinned-Michael Jackson. This psyche has roots in colonial subjugation. Most of the invaders of India were white in skin colour and therefore people began to think that white skins are superior. Multi-billion fairness companies know this psyche and therefore exploit Indians People are so prejudiced against darkness that they associate everything evil with black, whether is economy, money or forms of protest. Black is a beautiful colour. It has the power to overshadow all other colour. In US, whole black rights movement was associated with the slogan-‘Black is beautiful’
Indian society is deeply racist society. Indian society has been the most ancient racist society.
Rigveda created the system of Varna which means colour on the basis of which they have arbitrarily distributed occupation, resources and rights.
Racism in India is older than western racism which is few hundred years old.
This commodification of women’s body should be attributed to entertainment Industry the most.
Entertainment Industry and media have the power of influence people’s views.
All those item songs reinforces the view of objectification of women. And liberal feminists have no problem with this who say that women have the freedom to choose their occupation even if it is pornography and prostitution. They argue that they should have autonomy to explore their sexuality.
Radical feminists have problem with liberal views and they say that sexual autonomy is fine but freedom devoid of dignity is not freedom. When patriarchy is resolute to make women a commodity then women should be careful of their choice. Men are giving them the freedom to choose but by taking away their dignity.
The whole regime of Human rights law is silent about adult pornography. Most of those who frame Human right laws come from west where liberal feminism prevails over radicalism.
They say that women are joining prostitution as matter of choice. But know one knows how many women join prostitution as a matter of choice.
Consent has to be free and many prostitutes are forced by circumstances.
However much it is legalised, prostitution is still the most stigmatised occupation in the world. A prostitute has to negotiate with her dignified life.
No women having an alternate dignified life and standard of living will choose prostitution
In India, almost all prostitutes are trafficked into prostitution and they all come from backward classes. The very assumption of freedom of choice of choosing prostitution is flawed.
The root cause is the poverty and caste
Prostitution serves the vested interest of man.
Those who argue for legalisation say that it will provide them security from criminalisation.
Many say that decriminalisation is OK but not legalisation.
A very prominent psychologist was arguing very hard for the legalization of prostitution. He could not answer the question that will he hold the same view if his own daughter chooses to become prostitution and will he dare to give her condoms and contraceptives and say please go ahead and we are arguing for legalization?
Legalization seems very hunky-dory only when others mother and sister are in the prostitution industry but their perception changes completely when it comes to their own family.
Even those prostitutes who argue for legalization are like a caged parrot who have not experienced freedom and dignity and wants to come back to the cage again an again.
Therefore, unless the root cause of all this is dealt with, these problems will persist.
Legalization may be transitory and temporary solution but not a permanent solution.
Economic Rights of Women
Historically there has been a dichotomy of public and private domains. Public domain has largely been regulated by law and private domain has been reluctant to legislate upon. Because of this, it has been taken over by religion
History of India has been actually a history of colonial subjugation. India had a glorious past in terms of colonial subjugation. But none of colonial empires ever tried to intervene in private domain except the British. (Sultanate and Mughals did)
This non-interference provided space to religion to legislate on these things whether its marriage, sexuality, rights and resources.
Old Hindu personal law is nothing but notions of Manusmriti in one way or other which has historically deprived women of all fundamental rights
And there was no law to given them any remedy and justice. The laws of religions were laws of injustice. Suppression and subjugation was sanctioned by religion and collaboration between State and religion prevented state from Acting. And still in many place such collaboration is going on rampantly.
And because of this women were supposed to live under constant threat of being killed or isolated and ostracised. There was rampant practice of female infanticide, foeticide, Sati system, prohibition on re-marriage etc to control the sexuality of women.
Everything happed so smoothly without any resistance from any corner and this have been the sorry state of affairs continued for a long time and British were the first to muster courage to do something about it. And they liberated women from many victimization.
There was a practice in Bengali Brahmins of Human sacrifice in which elderly members of the family and children (if they had so many children) were taken on boat and just thrown in the deep waters of Ganga. The practice was banned under the Charter Act of 1789. Charter Act of 1789 was a marvellous Act in terms of reforms of Hindu Social System
After Independence, if there is anyone who contributed the most in terms of gender justice, he was none but Dr. Ambedkar. He was a visionary and had an understanding that Hindu religion has suppressed women and they have gone unspeakable miseries and this state of affair can be changed only if religion is distanced from this affair. So he took the agenda of reforming the Hindu Personal law. For that matter he brought Hindu code Bill which aimed to bring women at par with men in terms of rights and responsibilities.
In 1927, when he was in Bombay Legislature and when he was in Viceroys council, he brought about many reforms for women. He brought-
2 years maternity leave. He said that she had to undergo a lot of pain and suffering in bringing a new human being into existence. Earlier women had no maternity leave before and after delivery.
Payment of wages Act-wages has always been denied to a section of society-Shudras and women. It has been the norm of the Hindu religion and culture. Their physical Labour was taken for granted. Dr. Ambedkar gave the idea of minimum wages. Those who wrote religious scripture wrote so many things like stealing is a sin, lying is a sin but they never wrote that exploiting others is also a sin. Therefore when Ambedkar wrote constitution, he wrote right against exploitation as fundamental right of a human being. No other constitution in the world has similar provision. (Pakistan has) Moot question is that if right against exploitation was made a fundamental right then why not right to minimum wages?
Industrial Dispute Act-
Hindu Code Bill-After the county got independence, he brought this landmark bill. In 1956 when he resigned from the post of law minister he said that-I was not so happy when I presented the draft of the constitution compared to when I presented the Hindu Code Bill. Because it was my life long cherished dream to bring about gender equality in all possible sense and in all possible terms. What was there in the Hindu Code Bill?
Child Marriage was abolished-He fixed a minimum age for marriage as 18 years and in the name of child marriage women have always been subjugated. Manusmriti says that marry you girls at 8 years of age. Do you understand its implication at such a tender age. She does not even know her femininity and things around her and by marrying and giving a child in her womb, they aimed to crush her entire individual existence. That was the Shashtric conspiracy. Society and Hindu religion have collectively conspired against women.
Polygamy was abolished-Before that there was no limit as to how many wives a hindu can have. Polygamy was a norm and monogamy was an exception.
Right of adoption to women-before that only men had this right
Right to maintenance and alimony-
Right of Divorce-In Hindu law only men had right to divorce and not women. In such cases life a divorced women was rendered useless.
Women as Karta of the family-He envisioned this right way back in 1950s which a Hindu women has got now in 2005
Equal property right in succession and inheritance-
Right to become legal and natural guardian of a ward-
So one can imagine that if Hindu code bill was passed in 1950s in its entirety, how much women empowerment would have taken place so far.
There was a conservative, orthodox Hindu lobby working in the constituent assembly which did not allow him to pass this bill. This orthodox Hindu was led by Sardar Patel, Rajendra Prasad and Shama Prasad Mukherjee who have become the stalwarts of Hindu Right wing today. These three persons were the biggest enemies of women’s right. They were the biggest anti-feminist people sitting in the parliament because they were the ones who scuttled the passage of Hindu Code Bill. They mobilized the saints throughout the country to lead a movement against it because their fear was that if women are granted equal rights, it will demolish the entire structure of Hindu caste system. The whole structure of Hindu system is based on inequality and subjugation of women and Shudras. The fear was that if the patriarchy is demolished the entire structure of caste will be shaken. There is a statement of Shyama Prasad Mukherjee-The Hindu Code will shatter the magnificent structure of Hindu society and culture. Only Nehru pretended to be in favour of the bill. Before Ambedkar introduced the bill, Nehru gave him his word that he will get the bill passed but he backtracked later and succumbed to the Hindu orthodox lobby. Rajendra Prasad threatened to resign and if President resigns, the whole government will be in danger. They condemn Mayawati and are spending the largest amount on erection of a statue of man responsible for the non-passage of Hindu Code Bill. Patel mobilized RSS and Sadhu-Sant-Mahatmas to demonstrate in front of the Parliament and literally thousands of them got assembled before the Parliament and protested against the bill and ultimately it could not be passed. Inside house they adopted such kind of tactic that even discussion could not take place on the bill. Ambedkar got frustrated and resigned. He told that this was the only to reform Hindu religion. Nobody in this country has been bigger feminist than Ambedkar. The kind of energy and vigour he had for women empowerment is unparalleled.
After he resigned, a Brahmin named Pateskar was made the law minister but he was a good guy and he was ardent supporter of Ambedkar’s ideology. He used to visit Ambedkar to know how to go about it and Ambedkar guided him to get it passed in 5 different parts. But HCB was split in 4 different parts-
Hindu Marriage and divorce Act 1955
Hindu Guardianship and Ward Act 1956
Hindu Adoption and Maintenance Act
Hindu Succession Act 1956
Then Parliament happily accepted and passed these legislations interestingly and one would be surprised why? What was wrong Ambedkar’s? Because there was a politics of caste. If at all we will reform Hindu Religion, it has to be reformed by the hands of a Brahmin and not by the hands of a Dalit.
Many important provisions on Karta and property rights were removed due to the presence of Hindu conservatives in the Parliament who were in majority after the with-drawl of Muslim League.
Ideally those who teach you Hindu personal Law, should have spoken about all this. They don’t even mention Hindu Code Bill. Here comes the academic dishonesty and integrity. It’s a serious question haunting whole of India whether as a teacher one is honest his/her job?
EDUCATION AND WOMEN- SAVITRIBAI PHULE AND NANGELI
Historically women have been victimized, suppressed, oppressed and subjugated for thousands of years.
Today we have structural feminist Jurisprudence which articulates the women sufferings and their rights and contemporary economic and political reasons for subjugation of women.
Hardly there has been any resistance against patriarchy in India before twentieth century. What is the reason? The reason is same as is behind the subjugation of Shudras. Historically women have been deprived of domain of education and knowledge which traditionally has been the monopoly of men.
In Gurukul system only boys and that too of higher castes were allowed to enter. Women and Shudras had no access to these gurukul.
When one does not have education, then one is ignorant about the reasons behind his/her subjugation and the process which bring about the day to day victimization.
Shudras and women have been deprived of their right to education and therefore they never had any consciousness about their rights. They did not even know their systematic subjugation. Because knowledge is the potential source of enlightenment.
In India the credit of women’s education goes to Savitribai Phule (born 10 March) wife of Jyotiba Phule and they were very committed couple and by caste they were OBC.
She devoted her entire life for the upliftment of women. She got married at the age of 13 years. When she was 22 years old, she thought of education for girls.
She was an ardent advocate for modern English education for girls. In those days, Pramila Sarkar in her book ‘Forgotten Heroes’ published by Navyana publication, writes, Savitribai Phule started an exclusive girls school way back in 1850s. At that time even British had not thought about girls education. She is the first Indian women teacher of India. She started her school in 1848 in Pune Maharashtra and when she started that school, she faced backlash from the local upper castes and Brahmins because education of women was prohibited under Hindu Dharmashashtras. They tried their best to shut down the school but she clandestinely continued to run her school. People started throwing stones on her and hurled choicest abuses on her. She was supported in her endeavours by a Muslim lady called Fatima. Only a few know about her today. Then conservative Hindus tried to socially boycott her and pressurized her in-laws to stop her or face social boycott. Social boycott meant social death of an individual and this has been the age old technique of upper caste Hindus. So Phule couple had to leave that area but they created their new school wherever they went. Savitribai also started an organisation Mahila Sevadal in 1852 and this was India’s first women organisation. British were so impressed by her zeal that they facilitated her. The objective of Mahila Sevadal was to fight for the right of widows and especially childhood widows. She organized all the childhood widows of the area and pressurized the barbers not to shave head of widows. Shaving the head of widows was a technique of Hindus to control the sexuality of women. Then Savitri organised the mass marriages of childhood widows. And the remarkable thing about these marriages was that they were conducted int he absence of Brahmin priests because Savitribai believed that it were Brahmins who created the structure of religion and philosophy where widows lived an awful life. One can imagine how difficult it would have been for her in those times to do all this. She also started an orphanage for abandoned children. The couple did not procreate any child of their own. That was the level of conviction of this couple. One day she found a brahmin girl who was going to commit suicide because she was pregnant and she was unmarried. She took that girl and after delivery she took the child and brought him up in her own house. This child later became famous as Dr. Yashwant and people still mistake him as Phule’s child.
When her husband died in 1892, she did not allow any male members of her in-laws family to perform his last rites. Instead she performed his last rites on her own. Even today, hindu women are not allowed to go to cremation ground and theses rights are performed by males. One can understand her rebellious character.
Some years later, Pune was infested with a deadly plague and she decided to serve people in plague infested areas despite many people requesting her not to go in those areas. But she went there and sometimes later died of the plague. This is the story of Savitribai Phule. And her struggle leaves many important lessons for us-
That one who began struggle of women’s education, her struggle should be recognised and acknowledged. She should be considered as mother of women education in India. But unfortunately in India, mainstream feminists mainly eulogise the upper caste Brahmin reformers such as Ramabai and Sarojini Naidu or mythological characters such as Durga, Kali, Draupadi, Gargi, Maitryi, etc. They recognised these mythological characters but abstain from recognising the contribution real characters. And this tells that India’s feminist movement is actually a Brahmanical movement and a casteist movement.
There was another very rebellious women whose struggle was very remarkable, unprecedented and still unparalleled in History. She was NANGELI-a Dalit woman in the princely state of Travancore. It was a huge princely state that covered Kerala and Tamil Nadu both. Till late 18th century, there was a religious law in Travancore under which Dalit women were not allowed to cover upper parts of their body. And Dalit women used to be taxed on the basis of the size of their breasts. Bigger their breasts bigger the taxes. One can imagine the sheer cruelty of the Hindu system. Nangeli was also taxed for her bigger breasts but as mark of protest against this barbaric law, she chopped of her own breast and she died of the pain and excessive bleeding but her protest and resistance and he unprecedented struggle is nowhere found in the feminist discourse of this country. In mainstream Brahmanic feminist discourse one will to find the name of Nangeli. This is the dishonesty of the so called feminist movement of India. Hindus have the habit of idealizing the fraud people but not real heroes. They celebrate teachers day in the name of Radhakrishnan and he was a total fraud and its a matter of historical record. One can easily find his reality in the archives of the Calcutta HC. He was actually prosecuted in 1931 for plagiarising PHD thesis of his own student. The student a poor PHD scholar and he misappropriated his entire research work and when the student came to know this he prosecuted him in the court of law. At the same time Radhakrishnan was to get knighthood from British and he knew that if British come to know this fraud, his award will be cancelled. So he had an out of court settlement with that student by paying him 1000. 1000 was a huge amount in those times and the poor guy readily accepted that and withdrew the case against him. 99% of ideals of Hindus are either frauds or myths. Radhakrishnan’s only merit was that he was a Brahmin and he became the president of India. What is the big deal of a teacher becomes a president when the post of president is just a political appointment?
SOCIAL EXCLUSION, CASTE AND POVERTY
Poorest of the poor in this country also belong to the Scheduled Castes and Tribes.
In order to understand the reasons of poverty, one has to understand the institution of caste which is a major factor behind their Historical subjugation.
Who are Schedule Castes?
In broader sociological sense they are also known as Dalit and in restricted legal constitutional terms as Schedule Castes.
The word Dalit is older than SC and it was Jyotiba Phule who used it for the first time.
It comes from a Marathi word which literally means ‘Broken Pieces’ and aptly identifies the appalling conditions and state of mind and affairs of SCs.
Dalit also includes those untouchables who have converted into other religions. But SC only includes the Hindu untouchables.
The word SC and ST was first mentioned in the GOI Act 1935. Social untouchable were identified and included in the list of SC and indigenous tribes were included in STs.
Before 1935 another popular term was in prevalence-Depressed classes. It was coined by the East India Company.
Before that the local word was Achhut. But the beginning point is the word Shudras. Shudras were of two types-
Touchables, now known as OBCs
Untouchables or outcastes now known as SCs.
A recent EPW article ‘Dichotomisation between Caste and class’ by Anand Tiltumbde on caste and class clarifies important nuances regarding caste in fascinating manner.
Population of Dalit is almost 20% of all Hindus.
Gandhi also gave a term-‘Harijans’ But Dalits never accepted this because-
Gandhi was in the habit of using cryptic words.
Besides most meanings of the word ‘Hari’ in local dictionary used to be very contemptuous ie-donkey, snakes, rats etc
The rationale was illogical. If Dalits were Harijans (children of God) then what about the rest?
Gandhi has a history of subverting the interest of Dalits ie Poona Pact 1932. Ambedkar had demanded separate electorate for Dalits based on the ratio of their population and British agreed to it but Gandhi sat on a fast till death and as a result current undignified system reservation system came into being.
Because of all this, they always doubted the integrity of Gandhi.
Ambedkar never demanded reservation. He demanded dignified political representation based on the ratio of Dalit population in the country. He had to abandon his plan due to the adamancy of Gandhi’s fast till death.
Reservation system in the current form was first reflected in the 1935 Act. British had previously also opened the gates of education for Shudras in general.
They gave some kind of reservations to depressed classes in the 1919 act as well including right to education and right to political representation.
Before than Shudras were not supposed to be touched.
Gandhi ji was against Ambedkar’s idea of representation because he was more concerned about the unity of Hindu religion rather than socio-economic upliftment of oppressed and suppressed classes. This religion was more dear to his heart rather than the idea of liberty, equality and justice to those who have been denied justice for ages.
Later Ambedkar wrote a long article on what Gandhi and Nehru had done for the Dalits and tried to explain what conspiracies they had hatched against untouchables in the course of History.
Though Gandhi still has some respect in some quarters because-
He was one of the few whose committed to united India was unshakable. He had said that partition will take place on my dead body and ultimately it happed too.
His committed to the nation’s integrity and unity was undoubtable. But this sans of justice and equity for all makes no sense as British had also made a united and integrated mammoth empire in the subcontinent.
Had marvellous capability to organise the masses.
British immensely contributed to the territory of united India that we have today. Otherwise the subcontinent was full of bloodthirsty princely states. It’s other case that they divided it as well finally.
Consolidation of India kept happening even so long after Independence. For example-Sikkim used to be separate nation before 1975. There was a fully functional democratically and constitutionally elected government. But how the consolidation took place, that’s a different political story.
We always cry that India is a victim of colonialism but if you read the History carefully, then you find that Indian State historically has been no different than the colonising and imperial powers. Sikkim is one example. Nagaland, AP and Kashmir are another.
Dalits don’t consider Gandhi as father of nation. They consider Ambedkar as father of nation because if you consider the contribution of two for the upliftment of oppressed sections of Indian society, Ambedkar’s contribution is unparalleled. Struggles of the two is also unparalleled.
Gandhi started 4 major political movements in the country and all were super flop shows-
None of these movements could succeed and had to be dropped mid-way. There were reasons for failures but end result is also important
But still, Gandhi was the person who identified Ambedkar as the right person to write the constitution of India.
Most of the big leaders were of the opinion of inviting legal experts from all over the world but Gandhi insisted on Indians to write the constitution. Ambedkar was also the most qualified and most educated to this job.
Ambedkar also has lots of constitutional knowledge and vision of equality and liberty. Its other case that he and Gandhi were never on the same page on any socio-political issue but yet they were not against each other. See the movie directed by Jabbar Patel.
One should definitely read the ‘Annotated version of Annihilation of caste’ by Arundhati Roy to understand the nature of Gandhi and Ambedkar and difference in their perspectives.
Why Gandhi choose Ambedkar to write Indian constitution?
In his last days, perhaps he had a sense of guilt for what he had done in 1932 by subverting of the interest of Dalits. When Ambedkar argued hard that he is the real representative of Dalits, Congress denied like it had denied in case of Muslims.
He owed his life to Ambedkar because it was Ambedkar who saved his life in Poona Pact by acquiescing to his demands. If Ambedkar had not compromised, Gandhi would have died. Ambedkar had compromised very reluctantly under the fear of-
Huge backlash against Dalits
Being branded as anti-national
And as a result accepted the current reservation system in place of separate electorate.
Or may be he was afraid another turbulence after Partition if Dalits and backwards would not accept the constitution.
Current constitution whole borrowed the concept of SC and SC from 1935 Act just changing the some etymologies like ‘His Majesty’
Article 366 defines SC and ST
Article speaks about the power of President and Governor in notifying castes, races and tribes as SCs and STs. There are two lists-one made by States and other by the Central government.
Sometimes State government plays politics as well by including undeserving castes into schedule caste and OBC categories. For example Jaiswal, Guptas and Modis even when these people identify them as Vaishyas, they were included in OBCs for political appeasement. Some castes have been unfairly excluded as well. Lots of electoral considerations takes place during preparation of these lists.
British had no such considerations. On the contrary they invested huge money in knowing the society as they were of the opinion that in order to rule a country/society one needs to know the society.
After the departure of British no such major socio-anthropological researches took place.
STs in broader sense known as indigenous people-sons of the soil or Moolniwasis- the original inhabitants of India.
Different kinds of tribes-Primitive and non-primitive tribes and earlier there were criminal tribes.
Tribes have been negatively portrayed in media and Bollywood.
Dalits and Aadiwasis are the Moolniwasis of this nations. Others have migrated from other parts of the world in the course of History.
Outsiders when came to India, deprived STs and SCs of their land and natural rights. SC and ST flourished the Harappan civilization and were adept at architecture. But they were not good at fighting and could match the outsider’s expertise in warfare and lost.
After they lost, some reallocated them to forests and peripheries but some could not and thus were captured by victors who kept them as slaves for rendering services to them.
Anthropologists try to categorise tribals into two groups-
1. On the basis of Languages
2. On the basis of Race
English Philosopher Reasley had classified them into races.
Important Books for understanding of STs
SC Guha-Racial elements in population 1944
GS Ghure-Caste and races in India 1969
Prof. DN Mazumdar-An introduction to social Anthropology 1990
Nadeem Hasane– Tribal India
DN Mazumdar categorisation on racial basis-
Nigrito Group (Peninsular India)
Proto-Australite (Northern India)
But there are also certain overlapping anthropological features in many of them. Some don’t fit in any of the three categories such as Todas of Nilgiri Hills.
This classification has become scientifically obsolete and irrelevant as science as altogether abandoned the idea of race.
They say that there is nothing like race. Anthropological features of people is the result of genetic variations which occur due to climatic and nutritional level.
But this understanding came very late of the Holocaust in which 6 millions of Jews were killed primarily because of their inferior race as was understood by Nazis who considered them Aryans or purer race. Ironically Hitler himself was a Jew from his mother’s side.
Aryan is just a culture. Same is true of Dravidians. People have paid a huge price because of misconception of race.
DN Jha says that no part of Indian population is pure. India is a melting pot of races because of Historical reasons. Indian population is the most hybridised population. Hybridisation is good scientifically as it develops superior genetic immunity necessary for survival compared to Endogamous systems. Eg Egyptian Royals, Jews etc
Dravidian Speech Family
Austric Speech Family
There is overlapping of features her as well. For example-presence of many Greek words in Kashmiri vocabulary due to Alexander Invasion. Their Anthropological features are also similar to Greeks.
Same is true of Medieval invasions-Turkish, African, Persian and Abyssinian presence. Razia Sultan’s beloved was an Abyssinian.
Language of Law in North India is still largely Persian.
So lots of inter-mixing have taken place in terms of race and language. So no language and race is pure.
Even Sanskrit language is not Pure as is misunderstood by many. Stark dichotomy in 9th and 10th chapters of Rigveda in terms of sentence and grammar structure. Tenth chapter was supposedly written thousands of years laters. Panini developed Grammar of Sanskrit
So Tribals are very different from how they have been portrayed by the media and Hindu religious texts. In Hindu Mythologies Tribals and Shudras have been depicted as Demons, Asuras, Daityas, Danavas, Pishachas, Rakshasas, Dasyus, Anaryas, Malechhyas, etc. First their lands were acquired illegally and then they were demonised and branded as evils.
And this has been done right from Rigveda. Rigveda is actually a literary revenge against ancient Persian civilization. Those who have been referred has Gods in ancient Persian literatures, they have been made demons in Rigveda. Those who wrote Rigveda were actual religious refugees who were persecuted in Ancient Persia due to their polytheistic beliefs against the monotheistic Persian God Ahura-Mazda. After being expelled, when they came to India, they took their revenge by portraying Ahura as Asura in Rigveda after establishing their monopoly and domination here. Deva was a demon there but was made God here.
STs is a constitutional term given by British for the purposes of positive discrimination.
First census was conducted in 1891 and some mistakes were made while devising the list of STs and STs. Though both are equal in terms of reservation benefits.
Article 366(25)-such tribes or communities mentioned in Article 342 for the purposes of this constitution. Government will prepare a list and President will notify the communities as STs. Including and excluding communities from this list is the prerogative of the Parliament. There are two list-one by Centre and other by State government.
There are certain social feature which helps in identifying STs
Study conducted by TV Naik on Bhils in 1956 on behalf of Bhartiya Adamjaati Sevak Sangh an organisation run by central government identified certain features of tribals-
People who believe in Kinship/clan system-closed system of blood relationship, generally endogamous in terms of marriages and social behaviours.
Simple, innocent and nature loving people. They are peace-loving so long as their mind is not polluted by outsiders.
They suffer from Xenophobia-fear of exploitation from outsiders.
Other significant features of ST’s include endogamy and least interaction with outside world due to Xenophobia as they have experience of exploitation by outside forces who encroach on their lands.
Essentially all tribes lived in geographical isolation. And this geographical isolation from mainstream shapes their altogether different way of life and worldview.
Though Hindu outfits such as RSS and Bajrang Dal are running an extensive religious campaign called ‘Ghar Wapsi’ under an implicit assumption that all tribes are essentially Hindus.
Tribals are existentially depended on forests which caters their each and very kind of needs.
They don’t codified legal system but customary laws which is transferred from one generation to another orally.
Tribals do not have complex economic and political system. They have very primitive and simple social, economic and legal system because they are simple people and their needs are also simple.
They do not exploit natural resources. They use it for need and not greed.
Unlike civilised world, sense of accumulation of wealth is absent in tribals.
Tribals do not have concept of ownership in private sense. They have communal ownership which implicit belief that whatever exist in nature belongs to all collectively. Sense of individuality and personal belonging does not exists in them.
Tribals are also economically backward people which means there is absence of economic prosperity as we have in the so called civilised world.
But in some respects they are really poor such as Health Index. They are short-statured, and emaciated due to hunger and malnutrition. Their BMI is very low. They have mass illiteracy.
Three different approaches for their development-
Assimilationist or Integrationist approach-says that tribals should be integrated into the mainstream to cure their defects such as hunger, malnutrition, illiteracy and backwardness and it will lead to their empowerment. Problem-Development induced development has made their situation even worse.
Isolationist Approach-Those who argue for integration have ulterior motives of converting them into the Hindu religion. They say assimilation disturbs their culture, tradition, language, value system and belief systems. Isolationists also have vested interest. They are generally academicians and anthropologists who are more interested in keeping tribals like Zoo animals and studying them. If there are no tribals, then these anthropologists will become jobless. Therefore this approach is also equally problematic.
Activist approach-believe in both approaches of Assimilation and isolation but they argue of exercising of utmost caution and care. They argue that tribals also have a right of good standard of living where their children become doctors, engineers and civil servants. But their value systems should not be disturbed.
71% of Indian live below poverty line-Arjun Sen Gupta Committee
India’s poverty line is much lower than rest of the world and even lower than African Nations. It means they are living in abject poverty.
Who are these people and what are their sociological profile?
If we go by the census commission report and the planning commission report, they say that SC, STs and OBCs of all religions constitute that chunk of population living below poverty line and their total population is 85% of the total population of India.
That means higher castes in all religions in India are only 15% of the total population. And these 15% of the population are at the helm of the affairs and they are the ones who have historically monopolized the rights and the resources of the society and the rest have been at the margins of the society and are surviving with peripheral existence
One cannot understand the causes of their subjugation if one does not understand the institution of caste which has been primarily responsible for their position in society
Caste is a complex institution and it is almost impossible to define it.
Most of those who tried to define it have been foreigners who have never been to India including Oxford Dictionary
Karl Marx-misunderstood caste as class (See the Anand Tiltumbde article-Dichotomy of caste and class)
Max Muller-Very much eulogised by Hindu radicals. He wrote dozens of volumes about glorifying ancient India.
It is impossible to define caste but that does not mean that it cannot be understood and deconstructed by understanding its characteristics, structural components and functional dynamics
Caste is now a global problem. Earlier it was only confined to India but with movements of Indians to other parts of the world, it has spread elsewhere as well
Earlier, Indians did not travelled beyond India because it was considered sinful in Hindu Shastras. Those who used to come from outside were branded with very abusive epithet called Malechhyas.
But when Indians started moving outside, the evil of caste spread elsewhere as well. Hindu Upper caste behaves very well in foreign nations but when it comes to treating their fellow Indians, the first thing they look is their caste.
Equity Lap-Survey of caste and untouchability in US
In Hindi, the word for caste is Jaati
EU has passed a resolution against Caste discrimination and have equated it with race
British Parliament has also passed a resolution on caste against Indians living in UK who discriminate against each other and there is a huge tussle there between those who demand for criminalizing the practice of caste and those who do not want that. Latter is of course the Hindu Upper castes. And so is the case in US.
No International convention on Caste-International Human Rights unfortunately does not have a separate UN convention on caste but all they have is a convention on race. The convention on Race (CERD-Committee on the Elimination of Racial Discrimination) uses a term descent. The committee has retreated many times that caste is covered in Descent. Whenever UN or this committee says that caste is included in discrimination based on Descent and therefore India is bound to eliminate it, the representatives of India immediately oppose it and argue very hard that caste is not descent and many times even accuse UN of overstepping its mandate. Caste is an ascribed status and is determined by birth and therefore every evil that comes out of it has to be attributed to Birth and therefore it is part of Descent.
Those who argue that caste should not be Internationalised and no such obligation be to put on India to eliminate it because caste is an internal problem if India.
This line argument of Indian government is quite similar to its stand on Kashmir.
On both front India’s position is very vulnerable in UN and global community knows the reality in both cases. And that is the reason UN maps of India portray Kashmir as a disputed territory and not as a part of India.
Caste is actually an issue of Human Right and being so one cannot say it is an internal problem of India because wherever violation Human Rights take place, that should be the concern of the whole Humanity.
Caste is a structural violence on one’s rights, dignity, resources and existence. Caste is structurally genocidal as well.
Dr. Paul Farmer-In ‘An anthropology of Structural violence 200’ he says that structural violence is a violence exerted systematically means directly or indirectly by everyone belonging to the same social status within a same social order. Social order is a machinery of structural violence operated upon all those whose status denies them access to the fruit of scientific and social progress.
Johan Galtung-‘Violence, Peace and Peace research’ 1969. He says that social injustice and inequality both in power and in wealth lie at the core of structural violence when they result from the social structure that disproportionally benefits one group of people while preventing others from meeting their fundamental needs. TF Social Structure that causes Human suffering constitutes structural violence. And caste is a social structure. He propounds the concept of structural violence beyond use of physical violence ie that it does not necessarily have to be exerted violently or directly.
DECONSTRUCTION OF CASTE
Hierarchy-Caste is a hierarchical system. There are four major castes and thousands of sub-castes
Ascribed Status-Caste is an ascribed status. It is by birth. There is only three ways of changing one’s social status-Marriage, adoption and religious conversion. But caste cannot be changed even by religious conversion. Even before birth, the caste of the child is determined. Caste is something that remains even after death-separate cremation and burial grounds for different castes. Annihilation of caste-BR Ambedkar says that caste is like a four story building with no lift and no stairs. That’s absolute impossibility of mobility
Idea of purity and pollution of blood-the implicit assumption is that blood of higher castes is pure. This purity is directly proportional to one’s position in hierarchy. This assumption is so fundamental that it makes the entire structure of caste system. For preserving this system they created the system of Endogamy-a system where everyone has to marry in one’s own caste but outside one’s gotra. Sapinda and prohibited degree of relationships are the only two exception in the Hindu Marriage Act 1955. In the system of caste, endogamy has been superimposed on exogamy. Violation of this rule was punishable by death. A survey published in times of India 2010 says that on an average every year 1000 men and women are killed just because they dare to marry outside their caste. Honour Killing is nothing but reenforcement of the idea of endogamy and endogamy is the reenforcement of the idea of purity and pollution of blood. This notion does not have any scientific basis. It is just a collective psyche of society. Dr. Ambedkar said that caste is a eugenic (genetic) structure, but if caste is eugenic then subcaste should also be eugenic but it is not. There is discrimination within each caste as well. A higher sub-caste of a caste does not like to marry the sub-caste it considers lower. All brahmins are not same in terms of equality of status. One Brahmin considers himself superior than other Brahmins. Even amongst Brahmins, there are 100s of epithets against each other. In Kerala, Nambudaris consider themselves superior to other Brahmins. In Bengal Mukhopadhyay and Chatopadhyaya are the superior ones. In South India Ayangars consider themselves superior. In Maharashtra, Chitpawans considers themselves to be superior. They don’t even like to sit and eat with other Brahmins and that is the reasons most of office bearers or Sarsanghchalaks of RSS have been invariably Chitpawan Brahmins. They have hold over RSS and they consider all other Brahmins inferior. So Ambedkar says that if sub-castes are not eugenic then whole system of caste is also fraud. AM Winchester in survey of principle of heredity say that fear of Hindus is that if they marry in other castes, their characteristics shall be transferred in other castes. They have this misunderstanding that blood is something mysterious and its purity needs to be preserved. Winchester says that there is nothing mysterious about blood which is just a tissue of the body among many other tissues. But understanding of those who practice caste doesn’t change no matter how highly educated they become. Even those who are doctors, engineers and scientists have this notions of caste and blood purity is so much rooted in their mind and the core of their heart. They are reading science but their mentality is still unscientific which means that there is no guarantee that learning science will make ones intuitions scientific and rational. They are still 4000-5000 years old at mental level even though they have somehow made missiles by collecting technologies from here and there. High caste Hindus have just invented myths to justify their deep unscientific voids. Even at level of Indian science congress, high caste Hindu scientists are busy in proving the scientific achievements of ancient India. When they are not able to create and prove anything, they create myths as a cover up and History. Al-Baruni, the great scholar who visited India in 13 century writes in ‘Kitab-ul-Hind’ that people of this land (Hindavi) do not understand the difference between Myths and History and quite often they reduce a myth to a history and quite often they reduce a history to a myth. And what he wrote at that time is still highly relevant today. Coming back to the original discourse-because of the notion of purity of blood, women are supposed to maintain their chastity and virginity and all women are the victims of the caste system. Because if they do not observe this system, then there will be inter-mixing of blood which will cause the collapse of the entire system of caste. So the entire burden of maintaining of the structure of caste is placed on the shoulder of women. If today, upper caste women decide to forgo the custom of endogamy, it will not take much time for the whole caste system to collapse. But unfortunately, even they shy away from challenging this system. Even the radical feminists of this country are not willing to speak on this subject. They will condemn everything else but not Hindu religion and castes. Even when reminded of, they just ignore. How can someone be a Hindu and a feminist at a same time? One cannot be both at a same time because Hindu religion is fundamentally against the rights of women. How will you reconcile these two positions? If one claims to be both, then either he/she is an opportunist or the victim of the system. Some have now started talking about these issues in order to remain relevant. They know that their hypocrites feminism’s heyday will be over soon in the wake of rising Bahujan wave. But even today many mainstream feminists ignore to acknowledge the contribution of Ambedkar, who even resigned from his cabinet post for the right of women (Hindu Code Bill) They just ignore Savitri Bai Phule and Nangeli. Nobody can be bigger feminist than them. Co-opting and misappropriating those who challenged them intellectually is the old habits of Hindu Upper Castes. Be it Buddha or Ambedkar. This is very old technique of Hinduism to deal with intellectual challenge-either to kill them or co-opt and misappropriate them in their own philosophy. This is how they declared Buddha to be the 12th Avatar of Vishnu. The most powerful intellectual challenge posed to Hinduism was by Buddha at that time. They wanted to kill him. In ancient India, there was this tradition of Shashtrarth-debating with those who posed intellectual challenge to the mainstream philosophy. But they would not tell the rules of the game/discourse/debate. So once a person got entangled in them, it was impossible for him to come out as Brahmins were experts in playing with words. After that they used to make the person sit in buddies of hey and burn him alive. They challenged Buddha many times to have Shashtrarth with them but Buddha always closed his eyes. Even when he was asked on the existence of God, he closed his eyes. As a result this was interpreted differently by different scholars. As they could not kill Buddha, they co-opted him into the Hindu fold by declaring him the tenth incarnation of Vishnu. Same they are doing with Ambedkar today.
Idea of untouchability– Those on the bottom of the hierarchy are considered ritually and physically untouchables. In the past even the shadow of Shudras was supposed to pollute the higher castes and this system lasted for thousands of years. Even slaves were not treated like that. Yes, they might have been subjected to physical violence but were never made untouchables. Untouchability is very fundamental to the idea of caste. A recent survey conducted by Action Aid foundation and published by SAGE, reveals the truth of the stark claim of declining untouchability. As per the survey 47.4% villages of India, there is ban on marriage procession of Dalits on public roads. In 25.6% Dalits are forced in front of upper caste men. In 23.8% villages there is ban on festival processions of Dalits. In 19% cases, Dalits cannot wear bright new-clothes as it hurts the ego of upper castes who want to see them nasty and dirty. In 16.5% villages Dalits cannot use umbrella so on and so forth. They are discriminated in PDS shops, post offices and many other public services. In 67% cases, their police complaints are outrightly rejected. This is an abject denial of Justice system to Dalits.
Absolute impossibility of mobility of Occupation-Occupation is something that has been arbitrarily decided on the basis of birth of an individual and not his worth. It’s not a matter of a choice and it is determined on the basis of the caste a person is born into. Occupation in Hindu religion is not a matter of choice but a matter of birth. So Brith prevails over worth. And interestingly Hindu religion harps on merit the most and they are the most anti-meritorious people on Earth because Historically as per religion itself does not acknowledge the idea of merit. It only acknowledges the idea of birth and birth decides one’s merit. The assignment of occupation on the basis of caste is so arbitrary that those who created the hierarchy by writing the Hindu Scriptures, they have monopolized all the occupations that controls the society and minds of the people. They are the one who will become priests and priest is the one who is most sacred and revered people. They have monopolized the entire sphere of religion and they are the one who interpret religion and officiate all rituals related to religion and spirituality. Their presence in all such occasion is very essential. In Hindu religion one cannot dispense with the presence of a Brahmin. Hindu Shashtras mention two kinds of God in the world-visible and the invisible. Invisible God cannot be obtained without pleasing the visible. And who are these visible Gods? The Brahmins and they have been referred to as Bhupati or the owner of Earth. Therefore they have devised such a socio-religious structure that one cannot escape the presence of Brahmins in one way or other. Millions of temple of this country are the symbols of the dominating and hegemonic command of Brahmins. Those who argue a lot against the reservation system but never question the 5000 years old Brahmanic reservations in the religion and temples. Generation after generation the post of priesthood is hereditary. Dr. Ambedkar in Annihilation of Caste say that even when the post of simple Chaprasi is filled, applications are invited, merit and qualification are seen through a selection board but for the important post of priest, there is no qualification, no applications are invited. In all other religions, one need to have a requisite qualification before officiating priestly duties. In no other religion priesthood is a hereditary position. But in case of Hindu religion, even the Supreme Court has recognised the hereditary post of Priesthood. Dr. Ambedkar said that priesthood should not be a hereditary post and it should not be a monopoly of a particular caste. He called for the nationalisation of millions of temples whose huge unaccounted wealth could be utilised for the curing the ills of poverty, hunger and malnutrition in India. But there is no official reservation of Brahmins in temples-It is that they open temples and everyone flocks there. If you want to remove this de-facto monopoly then ask and convince your people not to go there. Now-days they have started a trend of making Dalits the priests of temples. But Dalits should introspect that for thousands of years they were not allowed to enter these temples and what political conspiracy and vested interest is prompting the Hindu upper castes to make Dalits the priests of temples today? 22/05/2018-Nowhere in the world, nature of occupation is dignified and undignified except in India, where people who do the most fundamental jobs of society such as cleaning and sweeping are looked down upon. A society can survive without professors and scientists but cannot without sweepers and municipal workers. We need to understand the blunders that we have committed since generations. People ask me why I only talk about the poverty of Shudras and not upper caste poor and Brahmins many of whom are also poor. The answer is that if you read the theories of economics, one theory says that there are two kinds of poverties-
Involuntary-Involuntary poverty is where one wants to work even if it is working hard to earn a living but one is not allowed to work or allowed the work of his choice. Instead he/she is compelled to have an occupation that will make him nothing but poor. And the structure of the society is such that one cannot empower himself by doing better jobs and get rid of his poverty.
Voluntary– But those who suffer from Voluntary poverty, they do not want to work actually. This is what happened in case of Brahmins in this country who have always sought the white collar jobs. Even when a brahmin is an illiterate, he sought clean jobs. A shudra on the other hand is ready to do all kinds menial jobs including ricksha pulling and sever work etc if compelled by circumstances. He believes in eating the fruit of his hard earned labour. But if you ask an illiterate Brahmin to do the same jobs, he won’t do it because historically they have earned their livelihood only by two means, either by exploiting the society or through religious begging. And mind that begging is also an exploitation of society specially when one is able bodied and can do hard work and can earn his livelihood through sweat and blood. Brahmins even today don’t want do hard work. Instead he will wear a saffron robe and sit on the side of the road with a begging bowl and telling people’s fortune or make a temple beside a road by placing some idol. He knows how to exploit the masses. They have historically condemned physical labor and also those who do it. These theories have come out after extensive researches.
Idea of monopolization and exclusion of rights and material resources-This is one of the important feature of caste. Availability of rights and material resources is directly proportional to ones position in the hierarchy of caste. Those who are the higher side of the hierarchy have greater rights and resources and those on the lower side have little or no resources but more duties. Those on the top have only rights and no duties. Brahmin only has rights and Shudras only has duties. This is a very unique kind of jurisprudence and philosophy of rights and duties. The modern constitutional jurisprudence says that every right has a corresponding duty and every duty has a corresponding right but in the jurisprudence of Hindu theology rights are devoid of duties and duties are devoid of rights. A Brahmin and Shudra are diametrically placed opposite to each other where the former has the greatest rights and least duties while the latter has greatest duties and least rights. Historically if you see, whatever resource Brahmins had and even today, they have not earned it through their labour. That has come through a particular sociological system known as Jazmani system. In this system Jazman has a religious duty to donate something who performs sacred rituals, yagnas. Bulk of these donations used to consist of cows and large landholdings. Today if you trace Brahminic landholding in this country, you will find an interesting that no Brahmin has ever earned their through their labor and all of it has come to them through the Jazmani system at some point of time in the history. But hardly any research has been done on these issues. In Hindu Shashtras, especially Manusmriti says that Brahmins have to be exempted from tax and they have always been exempted from tax except in the Muslim rule. All other society was subjected to taxation liabilities. Manusmriti says that even when King and the kingdom goes bankrupt, brahmins should not be subjected to any taxation. And that is the reason, if you read the history closely and carefully, why Aurangzeb because he imposed taxes (Jaziya) on Brahmins. He did so in a very structured and systematic manner. This is the reasons behind the demonisation of Aurangzeb as the biggest bigot and villain of the history by the mainstream Hindu upper caste Historians. We never tried to critically understand why a particular ruler is being so much demonised in History. We just swallowed what Brahmins taught and cajoled us to believe. Even today we glorify Rajput kings on the basis of how many forts they built and how many wars they fought. And mind that Aurangzeb built none. We still fail to evaluate History on the basis of prosperity of people and their standard of living. Most of the kings were feudal lords who exploited masses and common people and there is no reason for the masses today to glorify those monstrous kings under the influence of feudal writers and historians. Parameters of History evaluation should be the qualities such as status of common man, the rights he had, the standard of living of common people, amount of taxation and the quality of life in the regime of a particular king. They say that these kings are symbols of our glorious past and I always fail to understand what is so glorious about these forts. After all, they are not the symbols of glory but naked feudal exploitation under which lies buried the screams of millions of slaves and bondage labourers. All these forts have been made by bondage labourers. So don’t give so much importance to these forts. Build the real and honest perspective. Look at the geographical areas and difficult terrains where most of these forts are built upon. Just Imagine how difficult it would have been for the labourers to carry such massive stones on the top of the hills and how inhumanely many of them would have died under their enormous weights. Just imagine the sheer cruelty and the level of exploitation in those times. This is one of the important features of the caste system.
ORIGIN OF THE STRUCTURE OF CASTE
Origin of the caste system is traced to the Rig-veda (10th Mandal, Purushsukta). There is still no concrete evidence of the exact origin of the Vedas and people have various opinions on its origin. Many Historians say that first 9 chapters were written in one particular period and the last chapter was written thousands of years later. They say this because, the language style, structure, syntax and grammar of the tenth chapter is vastly different from the first 9 chapters. Rig-veda talk about Varna which means colour and they differentiated and categorised the population on the basis of colour. And they created a hierarchical vertical social order where the Brahmins are at the top because of their creation as such by Brahma-the originator of Earth. He created universe from his mouth. Then he created Brahmins from his head, Kshatriyas from his shoulder, Vaishyas from his belly or thigh and Shudras from his feet. So ones occupation and dignity is directly proportional to ones position in this hierarchy. And because Brahma has crated this hierarchy, this is a divine creation and has to be maintained as such. Because Rigveda is divine so everything contained in Rigveda is also divine and hence the hierarchy of caste is also divine. First they created the Shashtras, they declared it divine, which made the social structures mentioned therein also divine. And they secured their own divine privilege in this hierarchy for eternity-for all times to come in future. When I had not read Rigveda, I had heard various narratives including that Rigveda is the ultimate source of knowledge and wisdom. But when I read it, believe me I did not find any single word of wisdom. Whole of veda is full of hatred, violence, bloodshed, scarifies and invocations of gods and goddesses to provide you wealth and return of which you give them Somras (wine), flesh of fresh sacrifice, etc. Initially I didn’t realize as to why people revere it so much. It was only when I read the 10th Mandala, that I found the reason. It is the tenth chapter that contains the origin of the caste system and creates the hierarchy of caste where Brahmins are placed at the top. And this is the reason why they declare it as the ultimate source of knowledge and wisdom.
BRAHMINS-They are at the top of the caste hierarchy. They monopolized the entire domain of religion and knowledge. It is other thing that their knowledge was limited to Vedas and Shashtras with some exceptions. They monopolized the sphere if knowledge for thousands of years and yet could not produce anything worthy. See the pathetic state of affairs of knowledge in this country.
KSHATRIYAS-Second in the hierarchy is the Kshatriya who had following duties-
To defend the boundaries of nation-It is other thing there were never able to do so, otherwise we would not be having wave of invaders coming periodically. The very fact that this country has been political subjugated for thousands of years proves that Kshatriyas failed to perform their duties. They did fight but lost but they have always glorified their caste status of being Kshatriyas and that they are gallant warriors. (But they themselves are foreigners) It is very interesting to note the narrative they created when they lost-that they embraced and absorbed everyone who came from outside. But what other choice they had? See how shamelessly they have created the narratives of their victory even in their shameful defeats.
To ensure the edifice of caste-It was duty of a Kshatriya to make sure through the power of the sword that everybody’s conduct should confirm to the norms of the structure of caste. Shambhuka was killed by Rama because he defied the caste system. Under the norms of caste, a shudra cannot aspire for spirituality. Ekalavya is another brazen example of the caste system. This is the kind of exploitative system which many Upper Caste Hindus still take proud in. They are very proud of this teacher-disciple relationship.
To defend the chastity of women and punishing harshly the sin of Adultery-
VAISHYAS-According to Dharmashashtras, Vaishyas are supposed to engage themselves in two fields, either in Agriculture or business. But Vaishyas in reality hardly ventured into agriculture which requires hard work. So they engaged themselves in trade and business. They have all the rights which other two Varnas have except those rights which are exclusively reserved for Brahmins and Kshatriyas. Gradually, Vaishyas monopolized the trade and business. They are equally exploitative castes as Brahmins and Kshatriyas in the sense that they are the ones responsible for the bonded labour system. Even today the traditional moneylenders who are generally Vaishyas thrives in rural areas of the country. They are known by different names such as Sahukaar, Lala, Mahajan, etc. The modus operandi of creating bonded labours was by giving loans to backward classes at high rate of compound interest. Banks also calculate compound interest on loans but in case of banks, debts are repaid by instalments which includes both principle amount and interest and after a time, both are repaid. But in case of traditional moneylending, rates used to be so high, that the debtor was never ever able to pay even the interest, forget the principle amount. It created an intergenerational bondage labour system. The movie Mother India provides just a little glimpse into this hellish system. That’s just a tip of iceberg of the reality of the rural India which is far more brutal and exploitative. Farmers are committing suicide because of this kind of moneylending. Banks generally don’t give loans to these people and they have nothing but to resort to exploitive moneylenders for credits. British brought a law called Money lending Act which made it necessary for moneylenders to have licence. It is other case that the law was not properly effected due to various loopholes. Even when a moneylender was caught without a Licence, he would not admit to moneylending but would say that he had given a friendly loan.
SHUDRAS-they are on the bottom of the hierarchy and have no rights but only duties. The duty is to faithfully serve the upper ladder of the society without expecting anything in return. This has been designated as their divine position which they could not question. Historically they have not been paid anything for the services they rendered to the higher ladders of the society. Their physical labour was always taken for granted and they had no right to demand for wages. The source of this system is the Hindu Dharmashashtras which say that keep doing your duties and don’t expect the fruit of your labour. This command of Krishna was not meant for only Arjuna but for the Shudras as well. There is no scientific justification for caste system but they often come up with some weird philosophical justifications which lies in couple of theories-
Theory of Karma
Theory of transmigration of soul
Theory of rebirth
They say that first fundamental assumption his that every human beings carries soul which are indestructible. So after human dies, it transmigrates to another human being which is about to be born. Everyone dies but is born again. But the caste in which he will be born is determined by his action or Karma in the present life. And the caste he is born into in this life has been determined by his actions or Karma in his previous birth. So a Brahmin is a Brahmin because he did good Karma in his immediate previous birth and Shudra is a Shudra because he did some bad work in his immediate past birth. Now this is very complicated situation as a Shudra will never know what he did his past birth. He won’t even know whether he was born previously. They say to Shudra that if he want improve his next life, he should serve the upper ladders of the society faithfully in utmost dedication. When Shudra ask about his present birth, they say that nothing can be done about the present birth because its status has been determined by the past birth. They have created such an impossibility thought his philosophical matrix in which Shudra has no way to find out about his past or future birth. He was not given right to education so that his could not critically evaluate and analysis all this nonsense. For this reason only Brahmins wrote all the religious scripture in elite Sanskrit Language which was never the lingua-franca of the common masses. Then they prohibited them from learning and understanding Sanskrit. In no other civilization of the world, religious scriptures have been written in a language which the common people could not understand. Be it Bible or Quran. Because they were written for the common man. But the Hindu scriptures were written for mandating the socio-economic dominance one particular group and community over other. Hindu religious scriptures are nothing but a bundle of conspiracies. They prohibited education for Shudras so that he could never discover the source of his miseries and subjugation. So first they created scriptures in Elite language-Sanskrit. Then they imposed it on India and then they deprived Shudras from learning that language. Even Dr. BR Ambedkar was not allowed to study Sanskrit in India. He learnt it in Germany through German language and then he read and exposed all Hindu Shashtras. Somebody has rightly called the Brahmins-a pervert genius. The quantum of time and energy that they devoted for thousands of years in hatching conspiracies against Shudras and other communities and creating and reinforcing an evil social structure, if the same quantum of energy they had devoted in positive creativity, the face of India would be different today.
Education was knowingly kept away from Shudras, otherwise they would come to know the reasons about their sub-alternation and subjugation.
Scriptures go the extent of saying that Shudras cannot even hear the words of these sacred books.
Gautama Smriti and Manusmriti say that if a Shudra hears the words of Veda let the molten lead be poured in his hears and if recites a word veda, let his tongues be chopped off.
Skandha Purana says that Shudras should not be taught sacred scriptures by anybody and if anybody tries to preach them, he should be socially boycotted.
Dayananda Saraswati wrote his own scripture- Satyarth Prakash which is known as bible of Arya Samajis. He writes that he prohibits that upper-caste should not eat with Shudras. He also subscribes the view that they should not be taught vedas and they should also not do the Upnayana Sanskara. By the way not even all Brahmins are allowed to undergo Upnayana Sanskara. Satyarth Prakash subscribes the view of Manusmriti which says that even naming of the children should reflect the caste he is born into. That Brahmins should have names that indicate purity, Kshatriyas should have names that indicate valour, Vaishyas name should reflect wealth and Shudras names should indicate pollution. That’s the reason that even today in many regions of India, Shudras are not allowed to have upper caste names and surnames. In India surname indicates ones caste and is generally a caste name. So the first Step in the direction of casteless society should be removal of caste surnames. Many on the higher side of the hierarchy effectively use surname because they take a lot of pride in their castes. Their caste arrogance is reflected in using the caste surnames. Today in order to avoid caste discrimination, many Shudras are tempted to use upper caste surname. So one wants a caste free society, he should purge his caste surname from the name. Many people who are seriously concerned with the nonsense of caste, they have removed their names officially.
Geographical exclusion-This is also very much embedded in Hindu holy books. In most of Indian villages, Dalits colonies are not intermixed with the main village but on the periphery of the main village. Such is the pattern of inhabitation. As per the mandate of Manusmriti, houses of Dalits have to be on periphery of the villages. And Shudras were ordinarily not allowed to enter the villages except on two occasions-
When their services were required for cleaning
For carrying away dead animals
But it was only in the afternoon, that they were allowed to enter for these purposes as precaution so that their shadows should not touch the upper caste people. High castes had the notion of getting polluted not only by the physical touch of the Shudra but by their shadows as well.
In recent times, this law of Manusmriti was very strictly applied during the Peshwa rule. Therefore Hindu Historians declared Peshwa rule as golden period of Hindu History. Other golden period of Hindu History is the Gupta period under Brahmanism was revived and Buddhism was mercilessly destroyed from India and thousands of Monks were killed and their monasteries burnt. In that Period king Shawshank burnt the Mahabodhi tree and lost of violence took place against Buddhists. Buddhist still survives because it was taken out of the country at right time under the patronage of some royals like Ashoka.
The geographical exclusion of Shudras took place not only in terms of houses but also their cremation grounds. Caste prevails in Indian society not only from birth to death but even after death because the moment a child is conceived by a mother, caste of the child is determined. Many Dalit thinkers rightly say that while women in rest of the world deliver babies, in India mothers deliver castes. Caste based cremation grounds still survive in the country where one caste will not allow other castes to create their deads. Then they have their own places of worship as well. The documentary ‘India untouched’ brilliantly reveals all these dynamics. Many people do not know but it is a recorded History that even Nobel laureate Rabindranath Tagore was not allowed to enter a temple as he was a Shudra from his mother’s side.
A survey published conducted EPW in 2012 in urban India reveals that even today caste based residential segregation and geographical exclusion is very prevalent. Dalits and Muslims face rampant discrimination while buying or renting houses and flats owned by high caste Hindus. If the locality happens to be of higher castes, it is nearly impossible for Dalits and Muslims to get house there. Beef and love Jihad is the latest agenda of hate against Muslims by High caste Hindus.
Today if one ask high caste Hindus if they believe in caste system they outrightly deny it and say who believe in caste system in 21 century? But if you look in large matrimonial column of any newspaper, try to find out in how many cases of invitation of matrimonial alliances, caste does not matter? And remember, all these matrimonials are advertised by economically powerful, highly educated, highly paid, career oriented and settled people. They all deny caste system but when it comes to marriage, they flock to their own castes. Those who say that they don’t believe in caste system, ask them if they are ready to marry Shudras and things will become clear at once. Why don’t they allow their children to marry outside their castes? This is the Hypocrisy of Hindus. They all practice caste covertly and overtly and yet deny it when asked. Some are so shameless that they even advertise in the matrimonial column that SCs and STs are please excused.
Dalit’s cremation grounds are generally in the southern direction of villages as southern direction is considered inauspicious by High caste Hindus and their Shashtras. There could be some powerful linkage between Aaryan invasion from North-west and this theory of inauspicious south. So when they failed to conquer south, they declared it inauspicious.
Exclusion in terms of right to property-Shudras were deprived of two important rights-education and property. One can imagine the condition of a Human being without these rights. What would be the status of his existence?
EQUALITY AS A CONSTITUTIONAL VALUE
We discussed consequences of caste over last 5000 years
We discussed that in the light of constitutional values of Justice, equality, freedom, liberty, fraternity etc.
Thrust if India’s constitution is Equality unlike liberty in US constitution
Historically Shudras were denied equality in all walks of life. Even their shadow would pollute the High Caste people.
The very idea of Equality was historically non-existent in the Hindu Social System.
Manusmriti prescribed corporal punishment such as chopping of Buttocks of Shudras if he assumes a position of equality with a caste Hindu either in sitting, conversing or walking together on road.
Vrihadharismriti-If a place is made impure by the shadow of a Shudra, it can be cleansed using cow dung. And if by mistake one eats from the pot of Shudra, then he can purify himself by drinking Panchgavya which is made up of Shit of cow, urine of cow and milk of cow, etc
So in Hindu system, Shit of a cow is pure but not the shadow of a Shudra. They can eat and drink Shit or urine of cow but cannot tolerate the presence of a Shudra. This is their standard of purity.
Parasharsmriti and Vyassmriti-If one becomes impure by having a glance of a Shudra, he can purify himself by Suryadarshanam.
Aitriyasmriti-prescribes certain number of fasts for purification in case on is polluted by the presence of a Shudra.
But they do not feel impure when they rape Dalit women. NCRB data says that every single day three Dalit women are raped and killed. Rape is a powerful political tool of upper castes for collective humiliation of Dalits. Same is true of Kashmiri women.
Indians soldiers have a very bad record wherever they have been sent. Even in Sri-Lanka peace keeping operations. One would be surprised to know reason behind Rajiv Gandhi assassination was gang rape of a minor girl Dhanu by Indian peace keeping forces. Later she became the suicide bomber and exploded the bomb that killed Rajiv Gandhi.
Panini-He concretised Sanskrit Grammar and says that when a High caste person passes through a low caste area and a Shudra happens to be there, it is his duty to wish the Brahmin while the Brahmin is not supposed to respond to it.
The whole Hindu religion at level of the text itself is full of violence, hatred and disgust against Shudras.
Idea of Human dignity is also non-existent in Hindu System.
Idea of dignity is a broad concept and has an integral relationship with idea of Equality, Liberty and Justice.
Habermas in his theory of political sphere makes an important remark that Human dignity is a moral truth and is universal and is not subjected to ifs and buts. Dignity as a fundamental moral value is non-negotiable.
Emanuel Kant said that whenever you have to judge a particular human action to know whether is is just or unjust, reference has to be made to reason universal in nature and not to religion. Because if reference is made to religion, everybody will be reaching a different conclusion. If reason is universal then the morality which is founded on universal reason is also universal.
PORTION COVERED BY PROF. SUDHA
LABOUR AND POVERTY
1. Devaluation of labour
2. Degrees of freedom
3. Security of Work
4. Legal framework
5. Precarious labour conditions in the organized sector
6. Unorganized Labour
7. Bonded labour
8. Release of bonded labour
9. Debts are to be cancelled
10. Since the proof of bondage requires prosecution, the perpetrators, hand in glove with the administration
11. Bonded labour release certificate is often not proper and challenged
12. Rehabilitation is not completed unless prosecution is proved
13. Bonded Labour Act-Article 23 of constitution prohibits beggar. The act only redresses bonded labour arising out of usury.
14. Brick Kiln systems where laborers are underpaid and overcharged.
15. Human trafficking
When unions became strong, Industry wise negotiations started happening.
Formation of wage boards.
Bhilai steel plant started with 96K permanent workers. But most hazardous acts are done by contract labours.
In India, law on paper is not as bad as in other countries. Contract labour (CL) is very exploitative. Contract labour act aims to abolish contract labour or to regulate it.
CL is happening rampantly and people have been engaged as CL for decades. CL Act requires advisory boards but Most of the time CL doesn’t have advisory boards.
What to do?
Court– When CL has already been abolished but still happening. Air India judgment which asked for making permanent of CL. Employers rushed to court to overturn it. The new seven Bench SAIL Judgement said that proper selection procedure should be followed for making regularisation of CL. This is Justice in abstract and not justice in concrete.
One route left is that showing that CL is sham and bogus and is akin to bonded labour.
Dying cadre-means when you retire your post ends with you.
Development in India means showing profits. It does not mean improving quality of life.
Contract Labour regulation and Abolition Act 1970
Removing the corporate veil to reveal the true employer-employee relationship
Sham and bogus contract, paper arrangement, smokescreen.
AIR India Judgement-
Unorganized Workers Social Security Act 2008
(Criticism in the module)
Pauperizing the Farmers criminalizing the Urban Poor
Swaminathan Report 2006 – MSP should be 50% more than cost of price
P Sainath Report in Module
Result of agrarian crisis
Issues in Slum Demolition-
What about the state’s obligation to provide housing to economically weaker sections? Was it complied?
Article by Usha Ramanathan; Illegality in Urban poor?
KINDS OF QUESTIONS-
Framework, objective, machinery, implementation and loopholes of legislations discussed
Issues of self-governance and autonomy in Tribal areas.
Understanding of bonded labour system. Consequences of contractual labourisation etc
Distinctive features of Tribal Society-
2. Forest Dependency and occupation
3. Belief system
4. Endogamy, clan system
5. Resistance to outsiders
1. More than 700 categories
2. 8.2% of which Bhils, Gond and Santhals form the largest chunk.
3. Poorest in India
4. Only 5% STs belong to high income group
5. Only 11% SCs belong to high income group
6. Only 18% OBCs belong to High income group
7. 2 crores have ben displaced since independence
8. Tribals areas are very rich in minerals
9. Tribals areas are also India’s poorest
1. Were found to be impossible to govern by outsiders
2. Special laws made by British
3. Rampant exploitation by mainland People
4. Rampant displacement by developmental Project
Struggles of the tribal people in British India (examples)
1. Abhors in Asam
3. Jungle Mahal Revolt in 1832-33 (Bengal)
4. Kol, Santhals, Oraon insurrection in Chhota Nagpur (Jharkhand)
Constituent Assembly Debates
Issue of Autonomy
The two solutions-
1. Knowledge (peaceful)
2. Power (use of force) solution
Culture and tradition superior to that of Plains
Equality and egalitarianism
Reasons For The Failure Of The Sixth Schedule
1. Governors failed to exercise legislative powers.
2. They were not bound to act on the aid and advice of the Council of Ministers, but they did.
3. The Tribal Advisory Councils have been rendered a formality.
4. Governors have not submitted their annual reports regularly.
PESA (The Panchayats (Extension to Scheduled Areas) Act 1996 and MESA (Municipalities Extension to Scheduled Areas) Bill
Part IX (“The Panchayats”) and Part IXA (“The Municipalities”) were introduced into the Constitution in 1992 with the object of local self government.
Schedule Areas however were excluded
The Panchayat (Extension to Scheduled Areas) Act, 1996 was passed by the Parliament. A Committee headed by Dilip Singh Bhuria recommended a special Municipalities (Extension to Scheduled Areas) Act for the urban clusters in the Scheduled Areas.
The MESA Bill was passed in the Rajya Sabha in 2001 and subsequently lapsed.
Today as a consequence outsiders have flooded urban clusters in Scheduled Areas particularly industrial townships disturbing the demographic composition.
GRAM SABHA under PESA has wider power than normal gram sabhas in mainland India.
Consent of Gram Sabha is necessary before implementation of developmental projects.
Gram Sabha powers are not recognised, are bypassed.
In militarized areas of Bastar Gram Sabhas were held at gunpoint
Powers usurped by panchayats at higher levels.
Parallel functioning of inconsistent laws-Land Acquisition, Mining, Forest laws, Environmental Clearance Laws. They have not been appropriately modified to be in line with PESA.
Sixth Scheduled Areas (Assam, Meghalaya, Tripura and Mizoram)
Legislative powers-The district councils and regional councils have powers to make laws on certain matters of local importance but all such laws require the assent of the governor.
Judicial Powers of the Sixth Schedule Council-The laws made by the state legislature on any subject that comes within the jurisdiction of the council, would not extend within the jurisdiction of the autonomous council unless the council so directs by public notification. The President in regard to a Central Act and the Governor in regard to a State Act may direct that the Central Act or State Act shall not apply to an autonomous district or shall apply with such modifications as may be specified. The Councils have also been endowed with wide civil and criminal judicial powers, for example establishing village courts, etc. However, jurisdiction of these councils is subject to jurisdiction of the concerned High Court.
The Forest Rights Act, 2006 (FRA)
Was brought in to correct ‘Historical Injustice’
Is a relatively well worked out law because of the involvement of social movements
Recognises and vests rights that it presumes pre-existed and defines such rights.
The Act has faced opposition from the Forest Department in the name of deforestation and wildlife protection, but the Act actually makes place for these concerns.
Individual land rights are minimal and for subsistence. An outer limit is specified. Rights are inheritable but not transferable.
The Act makes hunting and trapping of wild animals illegal.
It includes other forest dwellers apart from Scheduled Tribes.
The Gram Sabha plays a central role in initiating, verifying and forwarding individual as well as community claims.
There is a three tier system of determination of rights-
The Sub-Divisional Forest Rights Committee,
The District Forest Rights Committee and
The State Level Monitoring Committee
The elected Forest Rights Committee has a democratic representation.
The decisions of the Gram Sabha are appealable.
The Act does not prohibit eviction under any other Act, but mandates recognition and vesting of rights prior to such eviction.
The Act places stringent conditions to be established before it is presumed that there exists a conflict between existence of wildlife and tribal people.
The Act gives the Gram Sabha rights as well as duties to protect the forest, wildlife and bio-diversity reinforcing the perspective that tribals co-exist with nature.
The Committees include representatives of the Forest Department but are headed by administrative/revenue officers.
The evidence on which the Gram Sabha verifies and endorses claims is not documentary alone, and oral evidence of elders is given importance.
The Central Rules have been laid down in detail and the States ought to adopt the same if they have not made Rules which are more fitting to the objective than the same.
The Rules lay down detailed procedure to claim community rights.
The Forest Department should ideally co-operate with the Forest Rights Committee in providing maps, and other technical assistance in establishing rights.
The State Level Monitoring Committee is a high level committee in which the Ministry of Tribal Affairs has a representative.
The Ministry of Tribal Affairs is the nodal agency for implementation of the Act and has been active in issuing notifications for clarification.
Reasons for Failures in implementation of the Forest Rights Act
The interests of mining and industry wield greater power and influence and influence the mindset of politicians, bureaucrats and even the judiciary. There is a tendency to see the Act as “anti-development.”
Practically the State has not been pro-active in creating awareness, distributing forms, assisting Gram Sabhas or Forest Rights Committees.
Although the Forest Department has been assigned a secondary role, in practice they dominate the Committees.
In practice only about half of the individual claims have been decided and usually for far less land than applied for.
The outer limit of four hectares is rarely reached and often lands granted are ridiculously small confined to homestead only which defeats the purpose.
Community Forest Rights were rarely granted till a year or so back. After the Niyamgiri Judgment more CFR (Community Forest Rights) claims are being granted.
Usually such CFR claims are very limited including only traditional nistaar and not access to the village/communal forest.
Are Adivasis Indigenous People?
UN Definition of Indigenous People “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.”
UNDRIP-United Nations Declaration on the Rights of Indigenous Peoples
India has signed the UNDRIP but does not admit that there are any “indigenous people” in India. This is most likely because the Indian Government does not want any territory to be identified with tribes.
UNDRIP challenges many jurisprudential assumptions on which nations base their models of sovereignty and theories of rights.
It recognises communitarian values & group identities.
It recognises that indigenous people have a different paradigm of development in resonance with nature.
It recognises self determination/self governance of indigenous people.
It stresses upon honouring old treaties and claims;
It sets high standards of treatment of indigenous people with respect and dignity.
The concept of FPIC-Free Prior Informed Consent
This concept is being seen internationally as a tool that can mitigate the negative effects of extractive industries on the rights of indigenous peoples.
It is being widely used both within the OAS– Organisation of American States and the United Nations.
While in the OAS this is based on the right to property, in the UN it is based on self determination and cultural rights.
How much is such consent perceived to be aspirational and how much imperative? And in good faith?
In India we are stopping short at consultation which is usually a mere formality.
Land Acquisition in the Tribal Areas violates FPIC
The Samatha Committee, formed as a consequence of the Samatha judgment, is a mere formality.
Government says,“Consultation” under PESA is not “Consent”! (But it is consent when it comes to the appointment of judges!)
There is only a mechanical consideration of objections raised by the adivasis.
‘Market value’ of land in the tribal areas is not established since there is no purchase/sale.
Acquisition of commons and forest lands without consultation since it assumed to be government land.
Acquisition of lands is often carried out prior to determination of individual and community forest claims under the FRA.
Mining in the Tribal Areas without FPIC
Samatha judgment, which mandates that mining must be carried out only by a government company or by a co-operative of adivasis is routinely violated.
Consent of the owner and occupier is a pre requisite for a prospecting or mining lease but it is also not followed.
MOUs made by the Government with the mining companies for annual rent, permanent jobs, etc are not respected.
There is almost never any “backfilling” or return of the “leased” land to the heirs of the original owners in a cultivable form.
Encounters with the Criminal Justice System
There has been systematic studies of indigenous people and the criminal justice system in Australia, Canada, New Zealand and the United States. The following have been acknowledged:-
Over representation of indigenous People among prisoners
More cases of custodial torture and death.
Racism and discrimination in the justice and sentencing systems
Situation of tribals in conflict areas
Criminalisation of an entire community, all those who are not willing to live in camps, as insurgents.
Implication of large Number of “unnamed” persons in heinous offences
Use of very harsh laws like UAPA, Sedition, Waging War etc
Due to the pressure of the executive on the judiciary, the Court does not consider the civil liberties of the individual but takes a security centric approach.
Important stages of trial like arguments on charge are reduced to a formality.
Bail is generally rejected so it has become a practice not to move for bail at all in these areas
The accused adivasi often only understands Gondi or Halbi, hence cannot follow the language of the court, neither can the magistrate communicate directly with them.
Families are often unable to travel long distances to the central jail at Jagdalpur.
Generally the accused depend on legal aid lawyers who are poorly paid and do not visit jails.
Of all the states in India, Chhattisgarh has had the highest rate of overcrowding in Jails for the past 6 years. (sometimes 450% more than the actual capacity)
Conclusions of the Jagdalpur Legal Aid Group, a voluntary group of women lawyers who worked in Bastar and faced severe persecution.
Jails in Bastar have a severe problem with overcrowding.
The reason behind overcrowding is not lack of capacity, but excessive number of prisoners.
In Dantewada South Bastar, excessive number of prisoners in jail results not from increased arrests, but longer durations of incarceration of undertrials.
In Dantewada South Bastar, many people are arrested in group crimes (>5 accused), charges put on them are severe, bail is rarely granted, but eventually most of the undertrials are acquitted.
5th SCHEDULE OF INDIAN CONSTITUTION (For mainland India)
Deals with all other Tribal areas except that of Assam, Meghalaya, Tripura and Mizoram which are dealt in 6th Schedule.
Executive Power of the state
Report by governor to President regarding administration of the Tribal Areas.
Tribal Advisory Councils (TAC)
To be established in each state having scheduled areas therein consisting of 20 members of which 3/4 shall be Tribals in the state Assembly
The TAC shall advise the state regarding tribal welfare
Governor’s power to make rules of conduct
Laws applicable to the scheduled areas-
Governor may stop the application of central or state laws in Schedule Areas
Power of Governor to make rule for good governance including-
Prohibiting transfer of land
Allotment of Land
Regulation of money-lenders
With the ascent of President, he may modify or amend the central or state laws
Consent of the TAC shall be mandatory for making any of these rules
Power of president to declare scheduled Areas after consultation with Governor of the state.
Amendment of the Schedule-
Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.
No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368.
6th SCHEDULE OF INDIAN CONSTITUTION (Assam, Meghalaya, Tripura and Mizoram)
Autonomous Districts and Autonomous Regions-
as mentioned in Part I, II and III of para 20
Governor may divide them into more such districts and regions if there are more than 1 tribes
Power of governor to add, substitute and remove regions to these districts and regions subject to the report of a commission appointed under para 14
Constitution of District Councils and Regional Councils
One District Council (DC) for each Autonomous District-30 members-4 appointed by governor and rest selected through adult suffrage
One Regional Council (RC) in each Autonomous Region
For their first constitution, governor shall after consulting the tribals, make rules regarding electing, eligibility of voting and getting elected.
Once constituted, these bodies shall make rules regarding their conduct with the approval of Governor.
Powers of DCs and RCs-
Usage of land except the one which has been declared reserved forest
But nothing shall prevent the central and state government from acquiring land for public purposes
To make rules regarding, marriage, succession customs and culture
All laws made shall be subject to the approval of governor
Administration of Justice in these areas
Separate court system (with approval of governor) but officer appointed by governor shall have final say in matters of corporal punishment and so does HC and SC
When officer of Governor can intervene on Judicial matters
Power if DC to establish primary schools, fisheries, market, etc but with prior approval of Governor.
District and regional funds-
All money received from that area shall be credited to this fund
Governor may make rule regarding its management
Proper Accounting of funds as prescribed by CAG
CAG shall cause the accounts to be audited in manner he think fit.
Power to assess and collect land revenue and to impose tax
This shall be in accordance with the principles followed by the state government
Licenses or leases for the purpose of prospecting for, or extraction of, minerals.
Subject to agreement between DC and the state government
Governor shall be the final arbiter
Power of District Council to make regulations for the control of money-lending and trading by non-tribals-the regulations regarding this shall not be valid unless passed by majority of not less than 3/4 of the total members-subject to approval of governor.
Publication of laws, rules and regulations made under the Schedule
Application of Acts of Parliament and of the Legislature of the state of Assam to autonomous districts and autonomous regions in the state of Assam. This is regarding state or central law prohibiting or restricting alcohol
12A. Application of Acts of Parliament and of the Legislature of the state of Meghalaya to autonomous districts and autonomous regions in the state of Meghalaya-state law shall prevail in case of conflict with the DC law.
But president may revoke/modify the state/central law in favour of DC law
Estimated receipts and expenditure pertaining to autonomous districts to be shown separately in the annual financial statement
Appointment of Commission to inquire into and report on the administration of Autonomous Districts and Autonomous Regions.
This is to be done by the governor inquiring about
Education, medication and communication facilities
Need for new or special legislation
Administration of laws made by the DC or RC
The report shall be presented in the state legislature by Minister of Tribal affairs
Annulment or suspension of acts and resolutions of District and Regional Councils.
Governor may suspend the application of such laws if
It’s likely to endanger the security of India or is prejudicial to maintenance of public order.
Order of governor shall be confirmed by state legislature and unless revoked shall continue in force for 12 months
Dissolution of DC or RC-
Governor can do so by notification subject to the prior approval of state legislature and giving the opportunity to be heard to the councils.
Governor can take the administration in his hand if he deems fit. Such order shall lapse after 30 days unless approved by state legislature.
Exclusion of areas from Autonomous Districts in forming constituencies in such Districts for the purpose of election to state legislature
Amendment of the schedule-Parliament may amend, vary or repeal any of the provision of this schedule. Such laws shall not be deemed amendment of this constitution for the purpose of Article 368 of the Constitution.
FOREST RIGHTS ACT 2006 (FRA)
3.1 Following right is conferred on Tribals-
Right to hold and live in the forests
Community Forest Rights (CFR) such as Nistar
Right of ownership, use and disposal of minor forest produce
Other community rights such as fishing, grazing, etc
Habitat and habitation
Right of conversion of Patta land into title
Right and settlement and conversion of forest villages into revenue villages
Right to protect, regenerate and conserve forest resource
Rights recognised under Autonomous District Council (ADC) and Autonomous Regional Council (ARC)
3.2 Central government can still fell upto 70 trees per hectare for following purposes but with the clearance of Gram Sabha-
Fair price shops
Electric and telecommunication lines
Tanks and other minor water bodies
Water harvesting structures
Non-Conventional source of energy
Vocational training centres
- Right conferred are not absolute. They are inheritable but not transferrable
- Gram Sabha to be the authority to decide extent of individual Community Forest Rights (CFR)
Person aggrieved by the decision of Gram Sabha may appeal to the Sub-Divisional Committee
If Aggrieved by the Sub-Divisional Committee, can appeal to the District Level committee
The decision of the District Level Committee on the record of forest rights shall be final and binding.
Comprehensive Tribal Rules-
- Functions of the Gram Sabha (Gram Sabha was established under PESA)
Determine the nature and extent of Forest Rights
Constitute committee for the protection of wildlife, forest and biodiversity.
Consider resettlement packages
Quorum of Gram Sabha meeting shall not be less than one-half of all members of the Gram Sabha and 1/3 should be women
Gram Sabha shall be provided necessary assistance by state authorities
- Functions of the Sub-Divisional Committee
Provide information to Gram Sabha about their duties and rights
Collect all resolutions passed by the Gram Sabha
Consolidate map details
Hear and adjudicate disputes in the Gram Sabha
Ensure easy availability of Profarma of claims to claimants
- State level Monitoring Committee
Shall consist of secretaries of Tribal and social welfare, Forest Department, Panchayati Raj, Chief conservator of forests, 3 schedule tribe members of the TAC nominated by the state government etc
12B Process of determination of Community Rights
District level committee shall facilitate the filling of claims by claimants before the concerned Gram Sabhas
- Evidence for determination of forest rights
All public documents such as government surveys, voter ID etc
Evidence of Community Forests Resource shall include-
Nistar, grazing, grounds, old structures, groves, etc
- Petitions to Sub-Divisional Level Committee-power to reject or accept
Precarious Labour in the Organized Sector
Happens in Factories and shops which are legal entities
Workers are supposed to have statutory proof of employment-appointment letters, wage slip, attendance card, gate pass.
Labour Laws-ESI, PF, Gratuity are applicable.
Often established industry has township, schools and hospitals.
Wage Board-Wages are determined by industry wide negotiations.
Unions to fight for their rights.
Precarious labour in the unorganized sector
Casualisation– daily Wage labour-using a pool of labour
Contractualisation– trying to blur the “employer-employee” relationship.
Insecurity of Tenure
Only minimal rights-minimum wages.
No recognition of skill, gradation, promotion
The most hazardous and arduous work is done by contract labour.
Unionization is extremely difficult
The Contract Labour (Regulation and Abolition) Act, 1970
Admits that Contract Labour is exploitative
Seeks to abolish as far as possible and regulate if not.
Methods of abolition
Notifications by the Appropriate Government
Recommendations of the Contract Labour Advisory Board
There should be no contract labour in permanent, perennial and necessary work which is sufficient to employ regular workers
Role of the Labour Administration
Granting a License to the Principal Employer and ensuring regular returns
Granting a License to the Contractor-nature of work, number of workmen, duration of work,
The conditions of a License should be that no worker shall be paid less than what regular workers carrying out the same work are paid.
Where is the Inspector Raj? Self-certification
The role the courts have played
Removing the corporate veil to reveal the true “employer-employee” relationship
Sham and bogus contract, paper arrangement, smokescreen.
From the “Air India” judgment to the “SAIL” judgment
A worker “enters” a contract with his/her “eyes open”.
The “Umadevi” Judgment – if the front door is closed, employees can only enter from the back door!
CONTRACT LABOUR ABOLITION ACT 1970
Preamble provides for regulation and abolition in certain cases
- Central Advisory Board
- State Advisory Board-will consist of 9-11 members representing the government, industry, contractors, workmen etc
Chapter 3 Registration of establishments employing contract labour
- Prohibition of employment of contract labour
After consultation with the Central Advisory Board, State board may prohibit the employment of contract labour
Before doing so, it shall take into account the following factors-
Whether the process, operation or other work is incidental to or is necessary for the trade, business and the industry?
Whether it is of perennial nature?
Whether it is done through regular workmen?
Whether it is sufficient to employ considerable number of whole-time workmen ?
The decision of state government shall be final in this regard
Chapter IV-Licensing of contractors (Mandatory)
No contractor shall undertake/execute any work through contract labour except under a License.
License may contain wages and other essential amenities in respect of the contract labours as govt. may deem fit.
Licensing officer to make investigation in this regard.
Chapter V-Welfare and health of contract labour
Provision of Canteens-govt. may make rules.
The rest rooms or the alternative accommodation .
Other facilities such as supply of wholesome drinking water, urinals and washing facilities
First Aid facilities
Liability of principal employer in certain cases-
All expenses incurred by the principal employer in providing the amenity may be recovered by the principal employer from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
Responsibility for payment of wages-
Responsibility of the contractor
Principle employer shall nominate a representative to verify and ensure the payment of wages to laborers by the contractors
Duty of contractor to ensure disbursement of wages to laborers in presence of the representative
In case contractor fails, then principle employer shall be liable
Chapter VI-Penalties and procedure
Whoever contravenes the provision of this Act shall be punished with imprisonment extending up to 3 months or fines upto 1000 rupees or both.
Cognizance of offence-only on complaint or previous sanction of inspector. No court less than 1st class magistrate has power to take cognizance.
Chapter VII Miscellaneous
Registers and other records to be maintained by every principle employer and contractor
Labour can enter into separate agreement with contractor or principle employer for more but not less benefits other than this act.
Release of Bonded Labour
Debts are to be cancelled
Since the proof of bondage requires prosecution, the perpetrators are hand in glove with the administration.
Bonded Labour Release Certificate is often not proper and challenged
Rehabilitation is not completed unless prosecution is proved.
BONDED LABOUR ABOLITION ACT 1976
Article 23 of Constitution prohibits begaar and similar labour
System of Usury
CHAPTER 1 PRELIMINARY
Bonded labourer– who incurs, or has incurred or is presumed to have incurred bonded debt
Bonded labour system means-
the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-
in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance, or
in pursuance of any customary or social obligation, or
in pursuance of an obligation devolving on him by succession, or
for any economic consideration received by him or by any of his lineal ascendants or descendants, or
by reason of his birth in any particular caste or community,-
render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or
for the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or
forfeit the right to move freely throughout the territory of India, or
forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him,
and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;
CHAPTER 2 ABOLITION OF BONDED LABOUR SYSTEM
- Abolition of bonded labour system.-
On the commencement of this Act, the bonded labour system shall stand abolished and every bonded labourer shall, on such commencement, stand freed and discharged from any obligation to render any bonded labour.
After the commencement of this Act, no person shall-
make any advance under, or in pursuance of, the bonded labour system, or
Compel any person to render any bonded labour or other form of forced labour.
CHAPTER III- EXTINGUISHING LIABILITY TO REPAY BONDED DEBT
- Liability to repay bonded debt to stand extinguished and so all suits pending in any court for the recovery of bonded debt whatsoever
Any property of the bonded labourer taken away by the creditor must be restored to him
Property of bonded labourer to be freed from mortgage, etc.
Freed bonded labourer not to be evicted from homestead, etc.
Creditor not to accept payment against extinguished debt.
CHAPTER IV IMPLEMENTING AUTHORITIES
Duty of District Magistrate and other officers to ensure credit.
Duty of District Magistrate and officers authorized by him
CHAPTER V-VIGILANCE COMMITTEES
To be constituted by the State government in every district and sub-division
Each Vigilance Committee, constituted for a district, shall consist of the following members, namely :-
the District Magistrate, or a person nominated by him, who shall be the Chairman;
three persons belonging to the Scheduled Castes or Scheduled Tribes and residing in the district, to be nominated by the District Magistrate;
two social workers, resident in the district, to be nominated by the District Magistrate;
not more than three persons to represent the official or non-official agencies in the district connected with rural development, to be nominated by the State Government.
one person to represent the financial and credit institutions in the district, to be nominated by the District Magistrate.
Functions of Vigilance Committee-
to advise the District Magistrate or any officer authorised by him as to the efforts made, and action taken, to ensure that the provisions of this Act or of any rule made thereunder are properly implemented;
to provide for the economic and social rehabilitation of the freed bonded labourers;
to co-ordinate the functions of rural banks and co-operative societies with a view to analyzing adequate credit to the freed bonded labourer;
to keep an eye on the number of offences of which cognizance has been taken under this Act;
To make a survey as to whether there is any offence of which cognizance ought to be taken under this Act;
To defend any suit instituted against a freed bonded labourer or a number of his family or any other person dependent on him for the recovery of the whole or part of any bonded debt or any other debt which is claimed by such person to be bonded debt.
Burden of proof.-Whenever any debt is claimed by a bonded labourer, or a Vigilance Committee, is found to be a bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor.
CHAPTER VI-OFFENCES AND PROCEDURE FOR TRIAL
Punishment for enforcement of bonded labour.-Whoever, after the commencement of this Act, compels any person to render any bonded labour shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees.
Punishment for advancement of bonded debt.-Whoever advances, after the commencement of this Act, any bonded debt shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees.
Punishment for extracting bonded labour under the bonded labour system.-Whoever enforces after the commencement of this Act, any custom, tradition, contract, agreement or other instrument, by virtue of which any person or any member of the family of such person or any dependent of such person is required to render any service under the bonded labour system, shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to two thousand rupees; and, out of the fine, if recovered, payment shall be made to the bonded labourer at the rate of rupees five for each day for which the bonded labour was extracted from him.
Cognizance of offences– Every offense under this Act shall be cognizable and bailable.
CHAPTER VII MISCELLANEOUS
Jurisdiction of civil courts barred.-No civil court shall have jurisdiction in respect of any matter to which any provisions of this Act applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Act.
THE BONDED LABOUR SYSTEM (ABOLITION) RULES, 1976
Records to be maintained by District Vigilance Committees to ensure the implementation of the provisions of the Act and Rules.-In order to ensure the implementation of the Act and the Rules, every District Vigilance Committee shall maintain the following registers in respect of freed bonded labour within the local limits of its jurisdiction, namely :-
a register containing the names and addresses of freed bonded labour;
a register containing statistics relating to the vocation, occupation and income of every freed bonded labour;
a register containing details of the benefits which the freed bonded labour are receiving, including benefits in the form of land, inputs for agriculture, training in handicrafts and allied occupations, loans at differential rates of interest or employment in urban or non-Urban areas
A register containing details of cases under sub-section (6) of section 6, sub-section (2) of section 8, sub-section (2) of section 9, section 16, section 17, section 18, section 19 and section 20.
Central Sector Scheme for the rehabilitation of Bonded laborers 2016
Art.23 Constitution, ILO convention etc
1 lakh per adult male rehabilitation package
For special category beneficiaries like women and children rescued from forced begging, the package will be of 2 lakh.
In cases of bonded laborers involving extreme cases of deprivation such as transgenders, rescued from brothels etc, assistance shall be 3 lakh
The other benefits shall include-
Allotment of house site and agricultural land
Low cost dwelling units
Animal husbandry, dairy, poultry, piggery etc
Supply of essential commodities under targeted PDS
Education for children
In situations of immediate assistance fooding, lodging, medical and legal assistance
Skill development programmes for adults not coming under these categories
All this shall be done under the supervision of the DM
Bonded Labour Rehabilitation Fund in each district with corpus of at lest 10 lakh
Immediate assistance of 5000 to Rescued persons
Limitations of the Bonded Labour Act 1976
Newer and varied forms of Bonded Labour are not covered.
The Rehabilitation is connected with criminal prosecution.
The administration is not pro-active and the Bonded Labour themselves are not represented in any effective way.
DISPLACEMENT AND REHABILITATION
Displacement and Rehabilitation of People due to Developmental Projects
UN definition of internally displaced people
Development Displacement Population is the single largest category among all Internally Displaced Populations (IDPs). In India around 50 million people have been displaced due to development projects in over 50 years. Around 21.3 million development-induced IDPs include those displaced by dams (16.4 million),mines (2.55 million), industrial development (1.25 million) and wild life sanctuaries and national parks (0.6 million).
Undivided AP has the highest displaced persons
Dam building and displacement-
During the last fifty years, some 3,300 big dams have been constructed in India.
The brutality of displacement due to the building of dams was dramatically highlighted during the agitation over the Sardar Sarovar Dam.
Medha Patekar, spearhead the anti-dam movement known as the Narmada Bachao Andolon.
Displacement of 500,000 people
The Tehri Project of Uttarakhand-85,000 people displaced
In India, most of the affected people are the tribal and other indigenous people.
Coal mines have expanded from an average of 150 acres in the 1960s to 800 acres in the 1980s over the last three decades
Industry and displacement-
Acquisition of agricultural land for industrial purposes in India is not new.
Displacement due to SEZs
With a view to attract larger foreign investments in India, the Special Economic Zones (SEZs) Policy was announced in April 2000.
Between 60 and 65 million people are estimated to have been displaced in India since Independence, the highest number of people uprooted for development projects in the world. In India, “This amounts to around one million displaced every year since Independence,” says a report released in 2012 by the UN Working Group on Human Rights in India (WGHR). Of these displaced, over 40 per cent are tribals and another 40 per cent consist of Dalits and other rural poor.
Government’s Endeavour Towards Rehabilitation And Resettlement Of Internally Displaced Persons (IDPS)
In India, the problem of land acquisition and payment of compensation is handled by the colonial Land Acquisition Act 1894.
The new National Rehabilitation and Resettlement Policy, 2007
The Right To Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Bill, 2012 has some salient features-
Consent of 80 percent of landowners required in case of land acquired by private companies and 70 percent for land acquired under Public Private Partnership (PPP) model for public purpose.
Compensation up to four times the market value in rural areas and twice in urban areas.
Mandatory Social Impact Analysis (SIA) to assess nature of public interest and estimation of socio-economic impact prior to acquisition.
Land cannot be vacated until the entire compensation is awarded to the affected parties.
Companies can lease the land instead of purchasing it.
Private companies to provide for rehabilitation and resettlement if land acquired through private negotiations is more than 50 acres in urban areas and 100 acres in rural areas.
Affected families include farm labour, tenants, sharecroppers and workers on the piece of land for three years prior to the acquisition.
Compensation should be house, one time allowance and (either Rs 5 lakh or a job or inflation adjusted Rs 2,000 per month for 20 years) for the affected family.
Compensation of four times the market value in rural areas and twice in urban areas will be given to affected families. The market value of the acquired land shall be based on the higher of:
Market value specified in the Indian Stamp Act, 1899 for the registration of sale deeds.
Average of the top 50 percent of all the sale deeds in the similar type of land situated in the vicinity or
The amount agreed upon as compensation for acquisition of land for private companies or PPPs.
The value of the assets (trees, plants, buildings etc) attached to the land being acquired will be added to this amount. The Bill proposes that in cases where the ownership of an acquired land is sold to any person, without any development made, 40 percent of the profit made shall be shared among all the persons from whom the land was acquired.
Samatha v State of Andhra Pradesh 1997
Facts, In the early nineties, Samatha, an advocacy and social action group working or the rights of tribal communities and for the protection of the environment in Andhra Pradesh, was involved in an apparently local dispute over leasing of tribal lands to the private mining industries. The tribal community wanted to regain control over their lands rather than work as labor force in the mining operations on their own lands.
After losing the initial battle in the lower and High Court, Samatha filed a Special Leave Petition in the Supreme Court of India. The four year legal battle led to a historic judgment in July 1997 by a three-judge Supreme Court bench. It was a land-mark judgment in favor tribal rights. It permitted the mining activity to go on as long as it is undertaken by the government, or instrumentality of state or a cooperative society of the tribals. The instrumentality of the state has been defined by the Court as organizations which are completely owned by the government or where the government or its agencies are the majority shareholders.
As per the verdict all lands leased by the government or its agencies to private mining companies are null and void. It however upheld that transfer of land to the government or its instrumentalities is entrustment of public property because the aim of public corporations is in public interest. The salient features of this judgment are-
As per the 73rd Amendment Act, 1992, every Gram Sabha shall be competent to safeguard. Under clause (m) (ii) the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawful alienation of land of a scheduled tribe.
Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State.
In the absence of total prohibition, the court laid down certain duties and obligations to the lessee, as part of the project expenditure: at least 20% of net profits as permanent fund for development needs apart from reforestation and maintenance of ecology.
Transfer of land in Scheduled Areas only by way of lease to non-tribals, corporation aggregate, etc stands prohibited to prevent their exploitation in any form.
Transfer of mining lease to non-tribals, company, corporation aggregate or partnership firm, etc is unconstitutional, void and inoperative. State instrumentalities like APMDC stand excluded from prohibition.
Renewal of lease is fresh grant of lease and therefore, any such renewal stands prohibited.
In States where there are no acts which provide for total prohibition of mining leases of land in Scheduled Areas, Committee of Secretaries and State Cabinet Sub Committees should be constituted and decision taken thereafter.
Conference of all Chief Ministers, Ministers holding the Ministry concerned and Prime Minister, and Central Ministers concerned should take a policy decision for a consistent scheme throughout the country in respect of tribal lands.
Orissa Mining Corporation Ltd v Ministry Of Environment & Forest 2013 (NIYAMGIRI JUDGEMENT)
Facts-To increase the state’s productivity and to cash in on the treasure chest of resources, the Government of Odisha signed 79 MoUs with various companies to setup mineral-based industries, with a total proposed investment of US $606.95 billion. One such agreement was signed with Vedanta Aluminium Limited (VAL); a subsidiary of Vedanta Resources plc, for the development of an alumina refinery and a bauxite mining plant in the most environmentally diverse region of the Niyamgiri Mountains in Odisha. This project was meant to aid the state’s industrial growth and to enhance the public’s economic standard. However, the Government and Vedanta, both failed to consider the detrimental impact of the project on one major segment of the community-the Dongria Kondh tribe.
The Ministry of Environment and Forests (MoEF) states that “for projects requiring clearance from forest as well as environment angles, separate communications of sanction will be issued and the project would be deemed to be cleared only after clearance from both angles…”. As per these guidelines, before beginning any construction activity, Vedanta was required to obtain environmental clearance for both the alumina refinery and the mining plant.
On August 16, 2004 Vedanta submitted an application to the Forest Department of the MoEF for the reallocation of forest land. This was in direct contrast to the company’s environmental clearance application for the alumina refinery, submitted on 3 June 2003 which stated that its forest land requirement was ‘nil’. It also proclaimed that there were no reserve forests within a 10 km radius of the project site, which was contrary to the facts on record. Earlier, on 24 March 2004 the MoEF had informed Vedanta that the mining proposal was crucial to the refinery and therefore it would consider the environmental impacts of the two projects together. Six months later, on 22 September 2004 the ministry surprisingly reversed its decision and granted environment clearance for the construction of the refinery, independent of the mining project. The MoEF laid down the condition that Sterlite Industries should obtain clearance for mining on Niyamgiri before putting the alumina refinery into operation. The ministry letter also stated that forestland would not be involved in the project, although another department of the ministry was processing an application for the reallocation of forestland for the same project. Despite these many inconsistencies and violations, the ministry granted the operation environmental clearance and construction of the alumina refinery began in 2004.
Issues-The question that was posed by this Court was whether Vedanta should be allowed to set up its refinery project, which involved the proposal for diversion of 58 hectares of forest land. CEC had, however, objected to the grant of clearance sought by Vedanta on the ground that the Refinery would be totally dependent on mining of bauxite from Niyamgiri Hills, Lanjigarh, which was the only vital wildlife habitat, part of which constituted elephant corridor and also on the ground that the said project would obstruct the proposed wildlife sanctuary and the residence of tribes like Dongaria Kondha. Further, it was also pointed out that if Sterlite was allowed to mine in the Niyamgiri Hills, it would affect the identity, culture and other customary rights of Dongaria Kondh.
Held, The Supreme Court has strongly endorsed the role of the gram sabhas as democratic decision-making fora on issues of individual, community and cultural rights of tribals and traditional forest dwellers.
The Gram Sabha is free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received from Rayagada and Kalahandi Districts. Any such fresh claims be filed before the Gram Sabha within six weeks from the date of this Judgment. State Government as well as the Ministry of Tribal Affairs, Government of India, would assist the Gram Sabha for settling of individual as well as community claims. We are, therefore, inclined to give a direction to the state of Orissa to place these issues before the Gram Sabha with notice to the Ministry of Tribal Affairs, Government of India and the Gram Sabha would take a decision on them within three months and communicate the same to the MOEF, through the State Government. On the conclusion of the proceeding before the Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the Gram Sabha within two months thereafter.
Right to Education
Right to Food
Right to work (Art.39)
Right to Education (SEE SLIDES)
Right to Education Act 2009
Education or just literacy?
Discrimination in schools
Hierarchy in government schools- Kendriya and Navodaya schools
Community education centres in Finland
Allahabad HC remarked that government employees should send their children to government school
96% kids going to school-claims Government
Teacher’s peculiar problems-contract based teachers
RIGHT TO EDUCATION ACT 2009-salient Features
What does this right mean?
Free and compulsory education from 6 to 14 years of age.
Access to neighbourhood schools for all.
An egalitarian system free of discrimination, physical punishment and trauma.
Availability of sufficient number of competent and committed teachers.
Quality of teaching
Education and not just literacy
Participation of the community and redressal of grievances
What is the reality?
The poor infrastructure of government schools
Inadequate number of school teachers
The contractualization of teachers
Use of teachers for government work
Discrimination on the basis of caste, community and gender
Traditional rote methods of teaching
Layered and discriminatory school system-public and private schools
Salient Features of the Act-
Child defined as between 6-14 years-Child of ‘disadvantaged group’, of ‘weaker section’ and ‘with disability’ defined
Schools are defined in 4 categories-
School established by local authority
School of specified category (eg. Kendriya Vidyalaya and Navodaya Vidyalaya)
Schools have to conform to norms and standards prescribed in the Act.
They have to be registered.
Right of child to free and compulsory education: Every child of the age of 6 to 14 years, including a child of disadvantaged group or weaker section shall have the right to free and compulsory education in a neighbourhood school till the completion of his/her elementary education.
A child who is admitted at a later age in school will be placed in a class appropriate to his/her age. In order to be brought to par he/she will be entitled to special training.
Both the appropriate government and the local authority are responsible for carrying out the provisions of the Act.
Aided schools have a duty to provide free education to children in proportion to the aid received subject to a minimum of 25%
Non-aided schools have a duty to admit in Class I children of disadvantaged group or weaker section of the neighbourhood to the extent of 25%. The State shall reimburse the expenditure per child if the school is not under obligation for reason of having obtained any state subsidies.
No capitation fee (ie any other fee than is notified) can be charged by a school.
Physical punishment, mental harassment and discrimination against disadvantaged children is prohibited.
No child will be held back or expelled till the completion of elementary education.
School Management Committee SMC must be constituted, consisting of-
Representatives of local authority
75% parents/guardians of children
Proportionate representation to the members of disadvantaged groups and weaker sections.
This Committee monitors the functioning of the School, prepares the school development plan and monitors the utilisation of government grants.
Within 5 years of the coming into existence of the Act, all teachers will have to fulfill the specified qualifications and shall be given the specified pay and allowances and service conditions.
Teachers have a duty apart from regularity, completion of curriculum, of assessing each child and accordingly providing supplementary instructions and regularly meeting parents/guardians.
Teachers may be subjected to disciplinary action as prescribed in case of default of duties.
They will also be entitled to redressal of their grievances as prescribed.
The pupil teacher ratio will be specified. At present it is 30:1 for primary and 35:1 for upper primary.
The local authority will ensure that the vacancies in teaching positions should not exceed 10%
No teacher shall be deployed for any other non-teaching duties except census, disaster relief, or election duty .
No teacher shall engage in tution or any other private teaching activity.
Curriculum will be prepared by an academic authority notified by the appropriate government keeping in mind the following
Conformity with Constitutional values
All around development of the child including physical and mental abilities, knowledge, potential and talents
Learning through activities and exploration in a child entered perspective
As far as possible in the child’s mother tongue
Child should be free of any anxiety and trauma
Continuous Comprehensive Evaluation CCE of the child
Any person having a grievance can address it to the local authority. The decision of the local authority can be appealed against to the State Commission for Protection of Child Rights (SCPCR)
The SCPCR is also the agency that shall monitor the implementation of the Act.
The appropriate Government (which apart from the Central Govt controlled schools is the State Govt) will make rules under all the provisions specifying for instance-
Limits within which a neighbourhood school has to be established.
Manner of maintenance of records of children within 14 yrs under its jurisdiction.
Rules concerning grant of certificate of registration of schools.
Rules regarding the reimbursement of fees to the non-aided schools.
Rules concerning the salary, allowance, service conditions of teachers.
Duties to be performed by teacher and the redressal of their grievances
Manner of redressal of grievances of any person under the Act
Extension of admission and manner of bringing late admissions on par.
Manner of conducting special training
Award of certificate of completion of elementary education.
Constitution of the State Advisory Council and it’s functioning
Fortunately the Central Rules have been framed and are reasonably progressive. Most States have also notified their Rules.
Financial responsibility is borne concurrently by Centre and State. The Centre shall determine Grants for this purpose to the States from time to time.
However ultimately the State Government shall be responsible for implementation.
But the Central Government shall determine the curriculum and enforce training of teachers.
The School Development Plan is the basis of all grants by the local authority and the appropriate government.
Implementation of the Act
In Haryana, while physical infrastructure was usually available, safe drinking water was not available in many schools.
Library resources exist but usually the library is kept under lock and key.
Head Teacher and other Teachers were not aware of special training that was supposed to be given and was constituted such training.
Quality of education continued to be poor, teaching was through guide books and little activity based learning, CCE was found burdensome.
School Management Committees were constituted on paper but were neither functional nor effective.
Teachers continue to be irregular in rural areas.
Children found study monotonous.
In Maharashtra and Gujarat enrolment has increased 6 times at the primary level, 13 times at the upper primary level and 32 times for girls.
But school drop out rates are still high (50% upto Class V and 90% by Class X), learning standards are very low.
Large vacancies in appointments, considerable teacher absenteeism in rural areas
Lack of funds and poor school infrastructure.
Low coverage of children of the disadvantaged group.
In Gujarat 10% schools have no boys’ toilets, 1500 schools have no boundary walls, shortage of 25,000 classrooms, 400 schools have no electricity.
In Maharashtra, overall literacy rates are 76.8% as opposed to national rate of 64.8%, however in tribal areas the literacy rate is 36-37%.
What about marginalised children?
Some children considered marginalised are; homeless children (pavement dwellers, displaced/evicted, refugees etc.), migrant children, street and runaway children, orphaned or abandoned children, working children, child beggars, children of prostitutes, trafficked children, children in jails/prisons, children affected by conflict, children affected by natural disasters, children affected by HIV/AIDS, children suffering from terminal diseases, disabled children and children belonging to the Scheduled Castes & Scheduled Tribes
UNICEF’s (2009) estimate of 11 million street children in India is considered to be a conservative figure. The Indian Embassy has estimated that there are 314,700 street children in metros such as Mumbai, Kolkata, Chennai, Kanpur, Bangalore and Hyderabad and around 100,000 in Delhi alone.
12.6 Million children work in India. 65.9% of the street children live with their families on the streets. Out of these children, 51.84% sleep on the footpaths, 17.48% sleep in night shelters and 30.67% sleep in other places including under flyovers and bridges, railway platforms, bus stops, parks, market places.
Has the RTE Act helped them?
As per the Seventh Educational Survey, only 4 crore children out of 19 crore in the 6-14 age group are currently studying in private schools at the elementary stage. The 25% provision will create space for one crore for which the private schools will be reimbursed for the tuition fees. Assuming that these schools are providing quality education, the provision helps only a minority of the underprivileged. What is then the Bills vision of quality education for the remaining 15 crores? They will continue to receive education through a multi-layered school system with each social segment in a separate layer, the much-acclaimed norms and standards in the Bills Schedule notwithstanding.
Everybody knows that, apart from the tuition fees, the private school child has to shell out money for a range of items throughout the year such as expensive uniform and shoes, extra textbooks, picnic and extra-curricular charges, computer fees, etc. Who will pay for that? Why has the Bill not thought of changing the elitist character of these schools that violate the educational principles enunciated by Phule, Gandhi and Tagore?
Whenever the government sets up high profile elite schools the centrally sponsored Kendriya or Navodaya Vidyalayas and the XI Plans 6,000 model schools or the state governments Pratibha Vidyalayas (Delhi), Utkrishta Vidyalayas (Madhya Pradesh) or residential schools (Andhra Pradesh) the regular schools are deprived of funds and good teachers alike. People vie against each other to get their children admitted, using their political contacts, bureaucratic pressure or even bribes. The result: poor communities are divided and disempowered. This sop will thus further divert political attention away from the ongoing struggle for education of equitable quality through a Common School System.
First, the Kothari Commission (1964-66) recommended that 6% of GDP must be invested on education (including higher education) by 1986 and then maintained at that level. We never got there. Since 1991, the educational expenditure as percentage of GDP has been steadily declining and this is now down to 3.5% of GDP. Without fulfilling this cumulative gap, how does the government hope to provide quality education
In its estimate of Rs 228,680 crores required for implementing the Bill in seven years time starting in 2008-09, there are plenty of clues how this will be achieved. Look, for instance, at the teachers salaries. As per the Bill, the primary school teachers shall be paid a monthly salary of Rs 6,000 and those of the upper primary (class VI-VIII) stage shall receive a monthly emolument of Rs. 8,000. At present, as per Fifth Pay Commission, the gross monthly emolument of the primary school teachers (PRT Grade) and the upper primary teacher (TGT Grade) is respectively Rs 12,400 and Rs 15,000 at the entry point. The cat is out of the bag. The government plans to replace all the regular teachers (qualified and trained as per NCTE norms) by under-qualified and untrained teachers appointed on short-term contracts. While the low quality teachers will teach in government schools, the private school children will be taught by properly qualified teachers whose pre-service training ironically has been subsidized with public funds. Combine this with the prescribed pupil:teacher ratio of 40:1 (Cuba has 20:1) and you have a perfect recipe for low quality education for the masses.
Spending 6% of GDP on education is still a utopian expectation. On a comparative note, even poorest of the poor countries spend much greater than what India spends on education. For example Rwanda spent 5.1%, Burundi 5.8% South Africa 6.6% and Maldives 5.9% of their GDP.
In fact, there is no scarcity of financial resources but the lack of political will of state that has created artificial scarcity of resources by keeping the educational budget static.
In the last annual budget govt. of India gave bonanza of Rs. 540,000 Crore to corporate sector as tax exemption.
Since the time India signed GATT and WTO she became subservient to the World Bank, IMF and neoliberal ideology. Liberalization, privatization and globalization have taken over the welfarism which was a hallmark of our socialist state hitherto. Privatization of education has turned education into commodity and education sector has become an organized business.
1. You find a 8 year old boy sleeping on a pavement-take the child to a local government school
2. You are a Scheduled Caste in a village and find your child segregated in school-S.9(c). Local Authority in this case will be Panchayat. However no body is there to stop Teachers from harassing further.
3. In a municipality, u get to know from your girl that her teacher discouraging her from opting science-S.9 and S.29 and S.21 complaint to School Management Committee SMC
4. Maths teacher given election duty-S.27 RTE So No remedy. S.25 Teacher-Pupil ratio
5. Not enough teacher in an upper primary school. What to do? S.25-26
6. You come to know that your neighbor’s child was beaten so badly in a school-S.17 violation.
7. You are a christian and your teacher has fixed a program on Good Friday-S.29-values of constitution.
Approach National Commission for the Protection of Child Rights; NCPCR
Redressal of grievances under S.32 RTE 2009
Written complaint to Local Authority
After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of 3 months after affording a reasonable opportunity of being heard to the parties concerned.
Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.
The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.
RIGHT TO WORK
Work gives people dignity and indemnity.
Situations of Recession
Situation of War-US is the best example by creating anarchy in Middle-East and then declaring them terrorists and then declaring War on them.
International Humanitarian Law
International Covenant on Economic, Social and Cultural Right, Article 6
Article 39-Indian Constitution
Five Year Plans-
1st 5 year Plan-Failure of the land Reform Act in 1st five year
2nd 5 year plan-unemployment was identified as a problem. They started measuring different forms of employment. 1.5 crores unemployed people were found
Focus was more on rural industries and labour intensive industries
Two ways of handling the problem-
Rural and cottage industries
Large scale public infrastructure such as canals and roads
It caused dispossession as assets were being taken away
Idea was giving permanent jobs as rehabilitation
Under employment was estimated to be 20 million
1961-66 was very critical period-2 successive drought-rupee was devaluated
US refused us Loan at that time
4th 5 year Plan-Govt backtracked from employment and floated the idea of self-employment-differential rates of interest to poor people
Investment was made in irrigation
Upper caste wanted Dalits who they could control
Section 6-minimum wages
Schedule 2(30)-If wages are not paid on time
John Shay and Aruna Ray work in the study Material
RIGHT TO FOOD
Binayak Sen’s speech
Reasons behind Malnutrition
Inefficient production of grains
Producing but not teaching the people
People do not have money
PDS and Narega System-
Excluding people by making the system more and more complex
Protein consumption in US is 108 gram per day. In developing countries it is 70 gram per day and In India it is 55 gram per day.
Bihar and Orissa Famine code
FOOD Security Act-
Only recognises the pregnant and lactating women
They are to be taken care by Anganwadis
Nutritious diet is very important
Targeted PDS-earlier PDS was not targeted
Trying to replace it by cash has problems-There is no guarantee that people will be able to buy grains from it.
First order passed by SC in 2001 asking to identify all BPL families, issue card and distribute 25 kgs of grains per month per family. Ration is supposed to contain rice/wheat, kerosine, oil, sugar, etc. But Daal is not there.
Antyodaya Anna Yojna-for the most marginalised. It’s a group of special PDS beneficiaries.
Some Antyodaya beneficiaries could have been unable to take the benefit because of financial difficulties.
Midday Meals-SC directed the state to efficiently enforce the midday meal at least 300 calorific value for at least 200 days within a year.
Provisions for adolescent girl
Malnourished children to get 600 calorific food per day-to be provided special supplements
Order of Justice Arjit Parsayat in 2006-
LAND ACQUISITION ACT
Basically started in the colonial period-using the eminent domain of the state to acquire property
Usha Ramanathan article on Eminent domain in colonial countries.
Eminent domain is the power of state to acquire any property in the name of public welfare/purpose.
Article of Arundhati Roy on greatest common good
Land Acquisition Act of 1894 important features
People had little say in the matter
S.5-people could object to acquisition
All government has to do was to come up with a notice (S.4) and S.5A will give people a chance to object about it.
The objection was to be heard by the collector by giving personal hearings
In case of urgency, land could be taken away (such as flood etc) but in reality lands were taken for building power plants etc
Many a times people used to get confused regarding notice and gave collective objections but collectors would not take it seriously.
Award was to be made within 2 years of S.4 notification
2 kinds of acquisitions-
Acquisitions for companies to be done under part 7 of the Act
New Land Acquisition Act 2013-
Original name was ‘Land Planning Act’
Book-‘Legislating for Justice’ by ‘Jairam Ramesh’
Land Acquisition Act 2013
Public Purpose redefined-that government will acquire land and then allocate it to companies
Court refused to lift the ‘corporate veil’
Public Purpose widely defined-S.2
For strategic purposes
For infrastructural purposes excluding private hospitals and institution
For private projects 80% consent needed
For PPP projects 70% consent needed
Definition of affected family includes both who own and do not own lands.
Social Impact Assessment-Cost Benefit Analysis
In case of urgency-national security, defence of India, natural calamity, etc
In case of STs and STs, special attention to be paid
Acts like PESA and MESA and FRA to be taken into account
Tribunal created for dispute settlement in Land Acquisition will not be jurisdiction of SC.
Ordinance tried to modified several provisions.
It was passed many times in Lok Sabha but could not be passed in Rajya Sabha.
Disclaimer– Pending review