Capacity Building for Conflict Resolution – 2nd ARC

13 Nov

Capacity Building for Conflict Resolution – 2nd ARC

CHAPTER 4. Land Related Issues

Introduction

Implementation of land reforms in rural areas in the 1950s and 1960s abolished intermediaries and considerably reduced agrarian unrest, while it resulted in the emergence of a new class of land owners.

Ceiling on agricultural holdings has had limited success in granting landless labourers and small and marginal farmers access to land ownership.

Economic growth creates demand for land for non-agricultural use including development projects and the growing impulse to urbanize, putting more pressure on land resource of the country.

According to The Economic Survey 2017-18, agriculture sector which employs more than 50 per cent of the total workforce in India, contributes only around 17-18 percent to the country’s GDP create further scope for conflicts.

Clearly, land is at the heart of the crisis being faced by our agrarian communities and the issue has the potential of initiating major conflicts.

A. Land and the Agrarian Conflicts including Farmers’ Suicides

Facts regarding Indian Agriculture

India has one of the lowest average holding sizes anywhere in the world. The average size of agricultural holdings for the country as a whole declined from nearly 2 Hectares (Ha) in 1951 to 1.41Ha in 1995 to 1.32 Ha in 2000.
Apart from being uneconomical, small and marginal holders are particularly vulnerable to uncertainties of weather, market fluctuations and even moderate increases in inputs costs.

Rising indebtedness of farmers due to

Resort to non-formal sources for short term credit at exorbitant interest rates
Utilising it to meet immediate consumption needs
Failure to generate enough surplus from farming
Lack of resources to repay outstanding loans often forces the farmer to go in for fresh borrowings, creating a vicious circle which causes deep distress.

This debt burden often drives the farmer to suicide.

The measures recommended include:

Expanding the agricultural base by giving more support to small and marginal farmers primarily through ‘Self Help Groups’ (SHGs) and cooperatives.
Transferring informal debt to formal institutions.
Rejuvenation of natural resource base particularly in rain fed areas.
More effective risk coverage to protect the farmers from risks like price and demand fluctuations, vagaries of weather and natural calamities.
Increased public investment not only in agriculture but for diversification of the non-farm sector within the rural areas to generate alternative livelihoods for farmers.
Poverty alleviation programmes to more specifically cater to the needs of poorer farmers with farmers’ organisations being involved in the design of such programmes.

B. Displacement

Acquisition of land is necessary for the larger socio-economic development of a country.

Putting land to more economic use and thus increasing the economic returns to the society is the underlying principle for acquisition of land.

Acquisition of lands is generally problematic as the persons dependant on the land are deprived of their livelihood.

The land acquisition laws provide for a reasonable compensation to be paid to the land losers. But generally the compensation so paid is a lower than market value of land.

This low compensation often coupled with the usual bureaucratic hurdles brings a feeling of deprivation among land losers and marks the beginning of conflict.

There was no comprehensive policy for rehabilitation of such persons until 2003 when Government of India formulated a National Policy on the Resettlement and Rehabilitation of Project Affected Families which was notified in 2004.

Objectives of the policy were:

To minimize displacement and to identify non-displacing or least-displacing alternatives;
To plan the resettlement and rehabilitation of Project Affected Families (PAFs), including special needs of Tribals and vulnerable sections;
To provide better standard of living to PAFs; and
To facilitate harmonious relationship between the requiring body and PAFs through mutual cooperation.

The benefit-sharing strategies outlined involve the following mechanisms:

Establishment of revolving development funds through fixed allocations.
Equity sharing in the new, project-created enterprises and other productive assets through various forms of co-ownership.
Special taxes paid to regional and local governments, additional to the general tax system, to supplement local development programmes with added initiatives.

Revised National Policy On The Resettlement And Rehabilitation 2007.

The objectives of the policy were:

Principle of rehabilitation before displacement;
Land for land as compensation;
Consultations with Gram Sabhas or public hearing made compulsory
Social Impact assessment (SIA) introduced for displacement of 400/200 or more families in plain/tribal, hilly, Scheduled areas, etc;
Skill development support and preference in project jobs
Option for shares in companies implementing projects to affected families;
Housing benefits to all affected families including the landless;
Monthly pension to the vulnerable, such as disabled, destitute, orphans, widows, unmarried girls, etc;
National Rehabilitation Commission for external oversight.
Ombudsman for Grievance Redressal.

If land acquired for a public purpose remains un-utilized for the purpose for five years from the date of taking over possession, the same shall revert to the Government concerned.

In the light of the lessons learnt and as a conflict resolution measure for those displaced, there is need to introduce the concept of benefit-sharing in development-induced displacement in India.

The old concept of paying compensation based on the market value of land should be replaced with assessing the true value of land for all those who depend on it and then compensating them adequately

Also the compensation/rehabilitation should not be confined only to the title holders of land but should include all those who derived sustenance from the land.

Capability building measures and internal supervision mechanisms needs to be strengthened.

C. Special Economic Zones

The Special Economic zones (SEZs) Policy was announced in April 2000.

SEZs in India functioned from 1.11.2000 to 09.02.2006.

To instill confidence in investors and signal the Government’s commitment to a stable SEZ policy regime and with a view to impart stability to the SEZ regime the SEZ Act, 2005, was enacted.

The main objectives are:

Generation of additional economic activity
Promotion of exports of goods and services
Promotion of investment from domestic and foreign sources
Creation of employment opportunities
Development of infrastructure facilities.

The SEZ Act, 2005 makes quite a few incremental changes over the SEZ policy of 2000. Like, corporate tax exemption, exemption from Service Tax and Securities Transaction Tax, Greater operational freedom etc.

Chinese Experience with SEZs

Establishment of SEzs in china started in 1978 and achieved considerable success because of

Unique locations – of the five SEzs, Shenshen, Shantou and zhuhai are in Guangdong Province adjoining Hong Kong. Fourth, Xiamen, is in Fujian Province and nearer Taiwan
Large size
Investment-friendly attitude towards Non-resident chinese and Taiwanese
Attractive incentive packages for foreign investment
Liberal customs procedures
Flexible labour laws providing for contract appointments.
Decentralization of Power local authorities in administering the zones.

However, the negative consequence was that the SEZ scheme produced a speculative land market.

The Large-scale transfer of land to real estate developers was prompted by what was called ‘zone fever’. The provincial and local governments declared their own special zones providing land to the industries and real estate speculators. In fact, the zone fever was escalated to the level where by early 1990s, there were no accurate numbers on how many developmental zones actually existed.

Criticism of SEZs in India

SEZ has led to displacement, loss of agricultural land.
Rehabilitation package which include a job for at least one person from the affected family is Inadequate.
While China had permitted a limited number of very large sized SEZs, in India hundreds of SEZs have been approved including some that are only 10 hectares in size.
The 25% cap on processing activity in multi-product SEZs would lead to speculative real estate activity rather than job creating manufacturing activities.
Tax breaks given which can continue for as long as 15 years will lead to revenue loss as well as diversion/displacement of units, particularly IT units which will all move to SEZs because their existing tax-breaks would expire in 2009.

All the elements of the Chinese SEZ policy that led to negative consequences are also present in the Indian SEZ policy.

Administrative Arrangements for Conflict Resolution for SEZs

A job for at least one person from the affected family, such a stipulation is not adequate. Rehabilitation packages should be based on an income-sharing strategy.
The idea, on the whole, should be to make the oustees primary stakeholder partners rather than one-time beneficiaries or spectators of SEZ development.
In addition to sites in lieu of land, an ex gratia housing grant, a transportation grant, a subsistence grant, a rehabilitation grant for loss of land, vocational training and employment to one member of each affected family constitute part of the package.
The SEZ law should specify establishment of vocational training centers. Provision of water, sanitation and health facilities should precede the actual developmental activities in the vicinity of the villages. There should be a clear provision in the SEZ law allocating such responsibility to the entrepreneurs seeking to establish the SEZs.
In order to prevent conflict situations from arising and leading to violence, it is necessary that industrial activities and SEZs are located in areas where they cause the least displacement and dislocation, and do not usurp productive agricultural lands.

Land Records

The unsatisfactory state of land records is a major source of dispute between individuals as also between individuals and the government. Such disputes sometimes take a violent turn.

The commission in its Report on the Right to Information has emphasized the importance of land records maintenance in our governance system.

Recommendations

The following steps may be taken to alleviate the distress in the agrarian sector:

Provide renewed impetus to land reform measures like redistribution of surplus land, vesting title in tenants and carrying forward consolidation of land holdings etc for maintaining and promoting the sustainability of agriculture.
In order to provide adequate and timely facilities to farmers, there is need to augment the banking system in the rural areas and make them more responsive to the farmers’ needs
Redesign poverty alleviation programmes to make them more relevant to the needs of small and marginal farmers.
Step up public investment in order to expand non-farm and off farm activities to provide alternative livelihood opportunities for the poorer farmers within rural areas.
Introduce measures to encourage formation of ‘Self Help Groups’ (SHGs) to improve access to credit and marketing and empower the disadvantaged.
Diversify risk coverage measures such as weather insurance schemes and price support mechanisms.

There is need to amend the present approach to SEZs on the following lines:

In establishing SEZs, use of prime agricultural land should be avoided
The number of SEZs should be limited, with a larger minimum size with locations preferably in backward areas so that they act as nuclei for economic growth.
SEZs promoted by farmers themselves should be encouraged
The livelihood of the displaced should be a major concern of the SEZ policy.
The SEZ regulations should clearly allocate social responsibility of rehabilitation to entrepreneurs seeking to establish SEZs. This should include provision for water, sanitation, health facilities, and vocational training centers.
The proportion of land that is permitted to be used by the promoters of SEZs for non-processing activities should be kept to a minimum and this should be ensured at the time of approval of their plans. The existing ratio between processing and non-processing activities needs to be re-examined in order to maximize the proportion of land put to productive use. Also strict adherence to environmental regulations should be ensured.
Comprehensive land use plans should be prepared and finalized after wide public consultations. Industrial activities in SEZs should be located only in areas earmarked for the purpose in the land use plans.
The extremely liberal tax holidays provided both to export units and to developers require reconsideration.

CHAPTER 5. Water Related Issues

A. Inter-State Water Conflicts

Constitutional Provisions and Important Laws

Water is a State subject in list II of 7th Schedule and the union comes in only in the case of inter-State waters, Entry 56 of list I (union list)
Article 262 – which deals with adjudication of disputes relating to matters of inter-state rivers or river valleys

The two laws enacted under Article 262 and entry 56 of list I are:

The River boards Act, 1956 : The River boards tried to prevent conflicts by preparing developmental schemes and working out the costs to each State. No water board, however, has so far been created under the River boards Act, 1956.
Inter-State Water Disputes Act, 1956. Provides for an aggrieved State to ask the union Government to refer a dispute to a tribunal.

The Inter-State Water Disputes Act was amended in 2002 and the following important changes were made:

Government of India to establish a Tribunal within one year on a request by a State Government.
The Tribunal to investigate the matters referred to it and give its Report within a period of three years (Government of India may extend the period by another two years).
The decision of the Tribunal, after its publication in the Official Gazette by the central Government, shall have the same force as an order or decree of the Supreme court.

B. Lessons Learnt from Inter-State River Disputes

The union Government has not been able to act decisively
The other lesson is that the time lost in delays due to wrangling both before and during tribunal proceedings is very costly, in terms of loss of production, loss of farmers’ income growth and the rising cost of constructing irrigation systems.
States are becoming resistant to compliance with Awards of tribunals in spite of express provisions in the constitution regarding the finality of such awards.
A long time is taken to constitute tribunals and giving awards and in pronouncements of interim Awards that have led to further complications.
After an Award is given, there are problems of interpretation and implementation and there is no mechanism to enforce the binding character of such Awards.
Courts are barred from reviewing the Awards of the tribunals, but matters are still taken to the Supreme Court on related issues.
The questions raised before the Supreme court are on questions of its sharing during years of poor rainfall and on those relating to environmental aspects, displacement and rehabilitation of people and human rights in the context of specific projects. Such references delay the settlement of disputes and implementation of projects for years.

Inter State Water Dispute Tribunals

Krishna: Out of a total catchment of 2,55,949 sq. km., 6821 sq. Km lie in Maharashtra, 1,11,959 sq. Km in Karnataka and 75369 sq. Km in Andhra Pradesh.
Godavari: the party States are Maharashtra, Andhra Pradesh, Orissa, Madhya Pradesh and Karnataka
Narmada: The union Government constituted the Narmada Water Disputes Tribunal (NWDT) on 6th October, 1969
Cauvery: The dispute over the allocation of the waters of the River Cauvery is more than 100 years old. The matter has again been taken up before the Supreme Court in the form of a Special Leave Petition.
Ravi-Beas: to consider river water claims of Punjab, Haryana and Rajasthan, tribunal was set up by an ordinance in January 1986.

The National commission for Integrated Water Resources Development that gave its report in 1999 had recommended setting up of River basin Organisations (RBOs) as a body in which the concerned State Governments, local governments and water users would have representation and which would provide a forum for mutual discussions and agreement.

Way Forward

The commission recommended legislation in place of the River boards Act, 1956 that could provide, in addition to the establishment of River basin Organisations for each interstate river, the following by way of goals, responsibilities and management for the RBOs:

Goals:

Enunciation of principles for the development of the basin
Issuing guidelines for major projects
Prescribing technical standards
Maintaining and improving water quality for all beneficial uses
Prescribing a framework for development of ground water
Controlling land degradation
Rehabilitation of land resources to ensure their sustainable utilization and conservation of the natural environment of the basin

Responsibilities:

Water allocation to the States and administration of various key natural resources strategies
Technical responsibility for water quality, land resources, nature conservation and community involvement
Collection of data

Water Management Responsibilities:

Regulation of inter-state rivers and a programme of water quality monitoring.
Coordination of river management to encourage appropriate land-use practices, best practical means of waste-treatment and off-river disposal
Responsibility for developing programmes for the preservation of the ecosystem and for coordination of management of wetlands.

C. National Water Resources Council

The National Water Resources council was set up by the Government of India in March 1983 to discharge the following functions:

To lay-down and review the national water policy.
To consider and review water development plans.
To recommend acceptance of water plans with such modifications as may be considered appropriate and necessary
To give directions for carrying out such further studies as may be necessary for full consideration of the plans or components thereof
To advise on the modalities of resolving inter-State differences with regard to specific elements of water plans.
To advise on practices and procedures, administrative arrangements and regulations for the fair distribution and utilization of water resources.

As far as coordination of river basin planning and management and effective water use are concerned, the council has not had much impact.

National Water Resources Council

The Prime Minister is the chairman
The Union Minister of Water Resources is the Vice-chairman

Members of the Council

The Minister of state for water Resources, concerned union Ministers/ Ministers of State, chief Ministers of all States and lieutenant Governors/Administrators of Union Territories are the Secretary, Ministry of Water Resources is the Secretary of the council.

This Council first met in October, 1985 and adopted a National Water Policy in 1987; Although the council is supposed to meet once a year, this does not often happen.

Way Forward

The council should play a much more positive role.
The council and its secretariat should be more proactive, suggest institutional and legislative reforms in detail, devise modalities for resolving interstate water conflicts, and advise on procedures, administrative arrangements and regulation of use of resources by different beneficiaries keeping in view their optimum development and ensuring maximum benefits to the people.

D. Need for a National Law on Water

Due to Rapid development, average availability of water is likely to fall below the water-stress level in the near future and there is need for much greater efficiency in the use of water and a greater public awareness on the criticality of water conservation. This would call for efforts to develop, conserve, utilise and manage water on the basis of a framework that incorporates national perspectives.

The commission would therefore like to recommend that the law, at the minimum, should incorporate the following:

The use of all water, should be subject to regulation by prescribed bodies.
The location of water resources in relation to land shall not in itself confer preferential rights to usage.
The unity of the water cycle and the inter-dependence of its elements needs to be recognized.
Resource planning should be done for a hydrological unit such as a drainage unit as a whole or for a sub-basin.
Responsibility for the development, apportionment and management of available water resources will vest with the basin or regional level in such a manner as to enable the interested parties to participate fully
Water required to ensure that everyone has access to sufficient drinking water should be reserved.
Provision should be made for the establishment of one or more regulatory bodies.
There should be a standardized national information system with a network of data banks and databases integrating and strengthening the central, state and basin-level agencies and improving the quality of data and the processing capabilities.

E. Recommendations

The Union Government needs to be more proactive and decisive in cases of inter-State river disputes and act with the promptness and sustained attention that such disputes demand.
Since Article 262 of the Constitution provides that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of inter-State river disputes, it is necessary that the spirit behind this provision is fully appreciated.
River Basin Organisations (RBOs) should be set up for each inter-State river, as proposed by the Report of the National Commission for Integrated Water Resources Development, 1999 by enacting a legislation to replace the River Boards Act, 1956
The Chairmen of all the River Basin Organisations, as and when formed, should be made members of the National Water Resources Council.
The National Water Resources Council and RBOs should play a more positive role. The Council and its secretariat should be more proactive, suggest institutional and legislative reforms in detail, devise modalities for resolving inter-State water conflicts, and advise on procedures, administrative arrangements and regulation of use of resources by different beneficiaries keeping in view their optimum development and ensuring maximum benefits to the people.
In order to develop, conserve, utilize and manage water on the basis of a framework that incorporates long term perspectives, a national water law should be enacted.

CHAPTER 6. Issues Related To Scheduled Castes

Introduction

Members of the Scheduled castes are among the poorest in the country and also, the most discriminated against. This discrimination often manifests itself in the form of socio-economic exploitation, denial of civil rights, social ostracism and even violence against them which sometimes assumes brutal proportions in the form of massacres, rape, burning of colonies etc.

A. Constitutional Safeguards

Broadly classified into 3 types:

Protection: Legal/Regulatory measures for enforcing equality and removing disabilities; providing strong punitive action against physical violence
Compensatory discrimination: Enforcement of reservation provisions in public services, representative bodies and educational institutions.
Development: Measures to bridge the wide gap between the Scheduled castes and other communities in their economic conditions and social status, covering allocation of resources and distribution of benefits.

B. Legislative Framework

Article 17 of the constitution of India abolished ‘untouchability’ and forbids its practice in any form.

In order to enforce Article 17 of the constitution, within five years of adoption of the constitution, the untouchability (Offences) Act, 1955 was enacted by Parliament. Subsequently, the Act was revised in November 1976 and renamed as the Protection of civil Rights Act, 1955. The offences under the Act were made cognizable as well as non-compoundable.

Further, to check and deter crimes against the Scheduled castes and Scheduled Tribes, the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was brought into force with effect from 30th January, 1990. Measures taken for the effective implementation of this Act are:

Provision for adequate facilities, including legal aid, to the persons subjected to atrocities to enable them to avail themselves of justice;
Provisions for travelling and maintenance expenses to witnesses, including the victims of atrocities, during investigation and trial of offences under the Act;
Provision for the economic and social rehabilitation of the victims of the atrocities;
Appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of the Act;
setting up of committees at appropriate levels as the State Government may think necessary to assist the Government in formulation of such measures;
provision for a periodic assessment of the working of this Act with a view to suggesting measures for its better implementation;
Identification of atrocity prone areas.

C. Evaluation of The Legislative Framework

The number of cases registered under the PCR Act has shown a constant decline after the 1970s. These figures could, however, lead to the erroneous conclusion that the problem of untouchability is also on the decline.
In fact, the National commission for Scheduled castes, in its Sixth Report has observed “rather, it is a reflection on the ineffectiveness of the law enforcement machinery”. From the figures indicated above, it is also evident that the Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act has become the main instrument for preventing harassment to the Scheduled castes.
The conviction rate under both the Acts has been low. (Under the Protection of civil Rights Act, in 2005 a total of 101 cases ended in conviction whereas 385 ended in acquittal; Under the Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, in the year 2005, 7110 cases ended in conviction whereas 17,401 cases ended in acquittal).

Several studies have confirmed that the abhorrent practice of untouchability still persists. Studies have also highlighted cases of reluctance and negligence on the part of the law enforcement machinery. The National commission for Scheduled castes and Scheduled Tribes in a special report have stated that ignorance of law, fear of reprisals and lack of faith in the enforcement system, often compel victims to acquiesce in the existing unjust situation. Also because of protracted trials, witnesses become reluctant to testify against powerful elements.

Way Forward

The commission is of the view that the Administration should be much more proactive in dealing with cases of exploitation of the Scheduled castes. Therefore the approach of the Administration should be to detect cases of violation of law, suo-motu rather than wait for an FIR to be filed.

D. Institutional Framework

1. National commission for Scheduled castes

The constitution, earlier provided for appointment of a Special Officer under Article 338; designated as commissioner for Scheduled castes and Scheduled Tribes.
In 1978, Article 338 was amended vide the constitution (Sixty-fifth) Amendment Act, 1990 and the first National commission for Scs and STs was set up in March, 1992.
Consequent upon the constitution (Eighty-ninth Amendment) Act, 2003 which came into force on 19th February, 2004, the National commission for Scheduled castes and Scheduled Tribes has been replaced by:
(1) National commission for Scheduled castes, and (2) National commission for Scheduled Tribes.

2. National commission for Safai Karamcharis

Constituted in August 1994, through an Act of Parliament, namely the National commission for Safai Karamcharis Act, 1993 initially for a period of three years.

It is not a permanent commission but its tenure has been extended from time to time.
It consists of a chairperson, a Vice-chairperson and five members all nominated by the union Government. At least one member is a woman.
The union Government is required to consult the National commission on all policy matters affecting Safai Karamcharis.
It can investigate and take suo moto action relating to their problems.
The commission is empowered to call for information with regard to Safai Karamcharis from the concerned governments or authorities.
The commission is required to prepare an Annual Report which is laid on the table of both Houses of Parliament. Where the matter in the Report relates to the State Government, a copy of such Report is to be laid by the Governor of the concerned State before the legislature of the State.
The commission has so far submitted four reports with a large number of recommendations

E. Evaluation of The Working of The Institutional Framework

The National Human Rights commission has analyzed the effectiveness of the above mentioned watch-dog institutions and has concluded that these institutions are handicapped because of the very large number of complaints received, their limited capacity to deal with these complaints and also due to the absence of adequate field staff.

The National commission for SCs and STs feels there is an urgent need to look into the issue and empower the commission by giving it more powers under the constitution, to ensure the implementation of its recommendations.

Advisories by The Ministry of Social Justice and Empowerment

Distribution of booklets in Hindi and local languages highlighting the theme of combating untouchability and atrocities.
Mass awareness programmes.
Sensitizing of constabulary and police officers of police station level.
Research studies for identifying the forms, causes & measures required for eradication of untouchability.
Identification of atrocity prone areas in a focused manner.
Effective implementation of land reforms.
Promotion of Self Help Groups, especially for women.
Adequate flow of resources from the outlays earmarked by State Governments for Scheduled Caste Sub Plan (SCSP)
Legal literacy among women about their rights and provisions of legal aid available
The Minimum Wages Act be strictly enforced.
Expanding the coverage of social security.
The Vigilance and Monitoring Committees, in association with State Commissions for Scheduled Castes, to particularly review cases pertaining to dispossession of lands owned by SCs as well as instances where pattas have been issued but actual possession of land has not been given.

F. Administrative Action Required

Considering the magnitude of the atrocities and discrimination practices, a strategy should be evolved that needs to include the following:

Effective implementation of various laws enacted for the purpose:
Motivating the field functionaries
Monitoring and review by District Level Monitoring Committees
Police reforms
Engaging independent agencies to conduct field surveys to identify cases of social discrimination
Involvement of Civil Society Organisations (CSOs):
To help the Scheduled castes to raise their voice against atrocities discrimination and exploitation fearlessly
Coordination mechanism for the various National and State level Commissions
Involving Panchayati Raj Institutions
Effective implementation of land reforms and other social legislation:
There are a large number of legislations – bonded labour Abolition Act, child labour Prohibition Act, land Reform laws, Debt Relief Act
Expeditious Trial of Criminal Cases.
Convergence of Regulatory and Development Programmes:
Social justice through effective implementation of existing legislations and other measures for preventing and protecting members of the Scheduled castes from atrocities is not enough for resolving conflicts unless they are accompanied by effective and time-bound implementation of developmental schemes.

G. Recommendations

Effective Implementation of the Constitutional, legal and administrative provisions in letter and spirit.
To ensure speedy trial of cases pending in subordinate.
Place a positive duty on public authorities for promotion of social and communal harmony.
There is need for engaging independent agencies to identify cases of social discrimination.
Launch well-targeted awareness campaigns in areas where the awareness levels are low.
The administration and the police should be sensitized towards the special problems of the Scheduled Castes and Scheduled Tribes.
Strict enforcement of the rights of the weaker sections should not be downplayed by the administration for fear of further disturbances or retribution.
More focus on the rehabilitation of the victims including Counselling.
As far as possible the deployment of police personnel in police stations with significant proportion of SCs and STs should be in proportion to the population of such communities
Introduce a system of incentives for officials, in detecting and successfully prosecuting cases of discrimination/atrocities against the Scheduled Castes.
Active involvement of the local governments, corporate sector and NGOs in complementing the efforts of government for the development of the Scheduled Castes.

CHAPTER 7. Issues Related To Scheduled Tribes

Introduction

The position of the tribals lies at the very periphery of the social formation. The Human Development Indices (HDIs) of the ST population are much lower than the rest of the population. Social inequalities of the tribal population are manifested in various forms of exploitation such as bondage, forced labour and indebtedness. They are also exploited by merchants, money lenders and forest contractors.

A. Social Justice

Like the members of the Scheduled castes, tribals are also subject to atrocities. And, the position regarding the disposal of cases for crimes committed against members of the Scheduled Tribes by courts is no better than in the case of the Scheduled castes.

The implementation of laws and capacity building, recommendations made by the commission in case of the Scheduled castes, hold good for the Scheduled Tribes also.

B. Displacement of Tribals

Tribals have been displaced in large numbers on account of various large development projects like irrigation dams, hydro-electric and thermal power plants, coal mines and mineral-based industries.
A National Policy on Relief and Rehabilitation of Project Affected Families (PAFs) was notified in February, 2004 with a relief package of seventeen parameters to be fulfilled before permitting dislocation. Thereafter, the Government of India, in October, 2007 approved a new National Policy for Rehabilitation and Resettlement. But serious work on PAFs is yet to start in tribal areas.
PESA had specifically provided for prevention of alienation of land. It had asked the State legislatures in the area not to make any law which is inconsistent with the objective of preventing alienation of tribal land.
Paradoxically, however, PESA has been unscrupulously and indiscriminately used to promote industrial development at the expense of tribals.
State Governments should enforce the existing laws on land ceiling
A complete overhaul and systematic organization of existing land records with freer access to such information would have a positive effect and avoid conflict situations.

C. The Panchayats (Extension to the Scheduled Area) Act, 1996

It ensures involvement of tribals in their empowerment process not only as active participants but also as effective decision-makers, implementors, monitors and evaluators.
The Gram Sabha is empowered to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution. The Gram Sabha as articulated in PESA, has within itself an inbuilt capacity for conflict resolution.
A comparative analysis of PESA and the legislations enacted by the States on this subject reveals that the provisions of PESA have been highly diluted in the process of ratification by the States and most of the powers of the Gram Sabha have been given to the district administration or to the zilla Parishad.

D. Capacity Building in Administration

The main problem, while dealing with conflicts concerning the tribal population is that the existing constitutional provisions and laws designed to protect them are not optimally used.
A significant section of the tribal population has gradually been weaned away from the mainstream by the extremists.
It is necessary that the administration takes special care to exercise its basic functions and provide core services in the tribal areas.
It is also necessary that Government posts only such police, revenue, forest and development officials who have the required training and commitment to work in such areas and empathise with the tribal population.
Officials also need to be motivated to work in such areas. One way of doing this would be to select officials for specific posts in tribal areas providing hardship pay, preferential treatment in accommodation and education etc all of which would induce officials to volunteer for such posting.
No amount of legal provisioning or refinement of the planning process can lead to better compliance of legislations either in the protection of rights of the tribal people or development of the Scheduled Areas unless the administration at the cutting level edge is trained and attuned towards the objectives of PESA

E. Tribal Policy

There is no clear national tribal policy laying down the direction and imperatives for tribal development. The last one was the Panchsheel Programme for tribal development enunciated by the late Prime Minister Pt. Jawaharlal Nehru. It is time that a national plan of action for tribe-specific comprehensive development which could serve as a road map for the welfare of the tribals is formulated.

F. Conflicts Related to Inclusion in the List of Scheduled Tribes

There have been agitations –sometimes violent – by certain groups, while laying their claims for inclusion in the list of Scheduled Tribes. The agitation by Gujjars in Rajasthan, and a few groups in Assam are some recent examples of such conflicts.

Article 342 of the Constitution stipulates:

The President may after consultation with the Governor specify the tribes or tribal deemed to be Scheduled Tribes.
Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1).

In June, 1999, Government approved modalities for deciding claims for inclusion in or exclusion from the lists of Scheduled Tribes. Thus, there has to be a mechanism to bring together all such authorities which, in consultation with the major States with tribal population, should attempt to arrive at a comprehensive methodology with clearly defined parameters. It is well understood that inclusion of any tribe in the list would generally lead to further demands and conflicts

G. Recommendations

While all States in the Fifth Schedule Area have enacted compliance legislations vis-à-vis PESA, their provisions have been diluted by giving the power of the Gram Sabha to other bodies.
Timely submission of Annual Reports of the Governors under the Fifth Schedule of the Constitution.
Awareness campaigns should be organised in order to make the tribal population aware of the provisions of PESA and the 73rd amendment to the Constitution.
existing land records with free access to information about land holdings.
There is need to harmonise the various legislations and government policies being implemented in tribal areas with the provisions of PESA
Mining laws applicable to Scheduled Tribal Areas should be in conformity with the principles of the Fifth and Sixth Schedules of the Constitution.
Government should select such police, revenue and forest officials who have the training and zeal to work in tribal areas and understand as well as empathise with the population they serve.
A national plan of action for comprehensive development which would serve as a road map for the welfare of the tribals.
The authorities involved in determining the inclusion and exclusion of tribes in the list of Scheduled Tribes should adopt a mechanism of consultation with the major States and those with tribal populations.

CHAPTER 8. Issues Related To Other Backward Classes

Introduction

There has been a great deal of resentment among people belonging to Other backward classes (OBCs) including minorities that they have not been given the benefit of comprehensive amelioration packages as has been done in the case of SCs and STs. This has often led to conflicts culminating in violence.

The MANDAL commission evolved 11 indicators – a mix of caste and class features – for assessing social and educational backwardness. It arrived at an exhaustive list of 3473 castes that were declared as backward. The tangible indicators to ascertain a caste or any social group as backward included their lower position in the class hierarchy, lower age at marriage within the group, higher female work participation, higher school drop out rate, inaccessibility to drinking water, lower average value of family assets, higher existence of kutcha houses and so on.

Article 15(4) and 16(4) empower the State to make special provisions for any socially and educationally backward class of citizens.

Article 340(1) authorizes the appointment of a commission to investigate the conditions of backward classes.

The constitution refers to the term ‘backward classes’ in Articles 15(4), 16(4) and 340(1).

The First backward commission which was appointed under Article 340(1) submitted its Report in 1955. The Report was rejected by the union Government.

The Second All India backward classes commission – the Mandal commission – submitted its report in 1980.The report of the Mandal commission was partially implemented in 1991.

The Registrar General of India and the census commissioner had discontinued collection of caste-wise information (except for SCs and STs) since the 1931 census. Even the Mandal commission which had estimated the OBC population at 52 per cent of the country’s total population had used the 1931 census data.

No socio-economic survey has been conducted of the Other backward classes in the country. It is therefore necessary that government immediately take up a socio-economic survey of the Other Backward Classes.

An analysis of NSSO data contained various Surveys and Reports and provides following picture of socioeconomic status of OBCs – Poverty, Health Indicators, Unemployment, Asset Ownership, and Indebtedness.

Social Empowerment – On the whole, special schemes on the lines of the schemes for SCs and STs need to be taken up for social empowerment of the OBCs.

Economic Empowerment – the NSSO surveys reveal that the incidence of poverty among OBCs is intermediate to that among SCs/STs on the one hand and the ‘Others’, on the other. We have also seen how open unemployment is consistently higher among OBCs than among ‘Others’. As far as asset ownership including land is concerned, the ownership is only about two-thirds of ‘Others’ in both rural and urban areas. The incidence of indebtedness and consequently the debt to asset ratio is highest among OBCs of all the social groups.

Clearly, if the OBCs are to be put on par with ‘Others’ and made a part of the mainstream, they have to be empowered economically through employment and income generation activities and alleviation of poverty.

The preamble to our constitution clearly declares the intention to secure to all citizens ‘liberty of thought, expression, belief, faith and worship’.

Article 25 guarantees freedom of conscience and the right to freely profess, practice and propagate religion.

Article 26 ensures the right to manage religious institutions and religious affairs.

Article 29 grants the rights to all citizens to conserve their language, script and culture.

Article 30 provides for the protection of the interests of religious and linguistic minorities by giving them a right to establish and administer educational institutions of their choice and the State has been directed not to discriminate against the institutions of the minorities in the matter of given aid.

Article 350A directs the State to provide facilities for instruction in the mother tongue at the primary stage in education.

Communalism in a broad sense implies blind allegiance to one’s own communal group- religious, linguistic or ethnic- rather than to the larger society or to the nation as a whole. In its extreme form, communalism manifests itself in hatred towards groups perceived as hostile, ultimately leading to violent attacks on other communities.

Recommendations

Government may work out the modalities of a survey and take up a state wise socio-economic survey of the “Other Backward Classes”, which could form the basis of policies and programmes to improve their status.
Government needs to formulate and implement a comprehensive scheme for capacity building of OBCs that would bring them at par with the rest of society.

CHAPTER 9. Religious Conflicts

After Independence, there have been instances of large-scale communal violence in the country.

Though a number of communal riots have been dealt with effectively, there have also been many serious failures on the part of the administration in dealing with communal situations in a prompt and effective manner.

This commission found the following problems and shortcomings:

Systemic Problems

Conflict resolution mechanisms are ineffective;
Intelligence gathered is not accurate, timely and actionable;
Bad personnel policies – poor choice of officials and short tenures – lead to inadequate grasp of local conditions.

Administrative Shortcomings

The administration and the police fail to anticipate and read indicators which precipitated violence;
Even after the appearance of first signals, the administration and police are slow to react;
Field functionaries tend to seek and wait for instructions from superiors and tend to interfere in local matters undermining local initiative and authority;
The administration and police at times act in a partisan manner;
At times there is failure of leadership, even total abdication on the part of those entrusted with the maintenance of public order.

Post-riot Management Deficiencies

Rehabilitation is often neglected, breeding resentment and residual anger;
Officials are not held to account for their failures, thus perpetuating slackness and incompetence.

So far as capacity building for resolution of conflicts is concerned, there is need for involvement of citizens in developing internal mechanisms for diffusing conflict situations, which are as follows:

cooperation and coordination with the police (community policing).
cooperation and coordination with the administration (citizens’ committees).

1. Community Policing

The Basic Principle Underlying Community Policing is that ‘A Policeman is a Citizen with Uniform and a Citizen is a Policeman without Uniform’

The Concept of community policing is incorporated in the constitution of the Republic of South Africa. It’s basic principles are:

Establishing and maintaining a partnership between the community and the police.
Promoting communication and cooperation between the police and the community.
Improving the rendering of police services in the community.
Improving transparency in the service and accountability of the service to the community.
Promoting joint problem identification and problem solving by the police and the community.

Definition “Community Policing is an area specific proactive process of working with the community for prevention and detection of crime, maintenance of public order and resolving local conflicts and with the objective of providing a better quality of life and sense of security”.

Many States in India have taken up community policing in some form or the other. Be it ‘Maithri’ in Andhra Pradesh, ‘Friends of Police’ in Tamil Nadu, Mohalla Committees in Bhiwandi (Maharashtra), there have been several success stories from all over the country.

The Commission suggestions on community policing

Community policing is a philosophy and not just a set of a few initiatives.
The success of community policing lies in citizens developing a feeling that they have a say in the policing of their locality.
The idea of community policing would be a success if it is people driven ( inclusive Liaison Group) rather than police driven.
Convergence with activities of other government departments and organisations should be attempted

2. District Administration and Citizens’ Peace Committees

In times of communal tension, administrators working in districts have formed peace committees, consisting of politicians and influential members of different communities who have participated meaningfully in the deliberations of the peace committees and in peace marches.

These committees should be institutionalized as an important forum for conflict resolution between groups and communities. The commission is of the view that District Peace committees should be made effective instruments of addressing issues likely to cause communal disharmony. These committees should be constituted by the District Magistrate in consultation with the Superintendent of Police.

On the lines of the District Peace committees as suggested above, there is also need for organizing ‘Mohalla committees’.

The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005

With a view to further empower the union and State Governments to take effective measures to provide for a holistic approach to prevent and control communal violence, including rehabilitating the victims of such violence, mandating for speedy investigation and trial, and imposing enhanced punishment, the Government of India introduced the bill in Parliament in 2005.

A brief analysis indicates that a separate legislation for dealing with communal violence is, perhaps not required since there are adequate provisions in the present statutes to deal with all aspects of communal violence. For example, there are several provisions in the Indian Penal Code (IPC) which deal extensively with offences relating to religious, racial, linguistic or regional groups, castes and community.

153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

In addition, sub-sections (1)(c), (2) and (3) of Section 505 of the IPC also deal with offences related to promoting enmity, hatred or ill-will between classes on grounds of religion, race, place of birth etc.

Further, chapter XV of the IPC contains provisions regarding offences relating to religion.

Briefly, these include:

Section 295 – Injuring or defiling place of worship with intent to insult the religion of any class.
Section 295A – Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
Section 296 – Disturbing religious assembly.
Section 297 – Trespassing on burial places etc.
Section 298 – uttering, words, etc., with deliberate intent to wound the religious feelings of any person.

In the light of these considerations, the commission is of the view that a separate legislation is not necessary to combat communal violence and may even lead to restricting the use of the substantive provisions in the basic laws. It is better to strengthen the basic laws themselves, where necessary.

However, there are some innovative provisions in the communal Violence (Prevention, control and Rehabilitation of Victims) bill, 2005 which would further strengthen the hands of the Government in dealing with communal violence and negating the ills associated with such violence. These are:

Clause 19(2): Notwithstanding anything contained in the Indian Penal Code whoever commits any act of omission or commission which constitutes communal violence shall, except in the case of an offence punishable with death or imprisonment for life, be punished with imprisonment for a term which may extend to twice the longest term of imprisonment and twice the highest fine provided for that offence in the Indian Penal Code or in any other Act specified in the Schedule. Provided that whoever being a public servant or any other person authorized to act by a competent authority under any provisions of this Act or orders made there under, commits communal violence shall without prejudice to the foregoing provisions be punished with imprisonment which shall not be less than five years.
Clause 19(3): Any person who is guilty of an offence under sub-section (1) shall be disqualified to hold any post or office under the Government for a period of six years from the date of such conviction.
Clause 24 (1): The State Government shall establish one or more Special Courts for trial of scheduled offences committed during the period of disturbance by issuing a notification for the purpose
Clause 24 (2): Establish Additional Special Courts outside the State, for the trial if:
- It is not likely to be fair or impartial or completed with utmost dispatch;
- It is not likely to be feasible without occasioning a breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor and the Judge or any of them;
- It is not otherwise in the interests of justice, it may request the Central Government to establish, in relation to such communally disturbed area, an Additional Special Court outside the State.

These may be incorporated in the IPC and CrPC themselves, particularly since there are several enabling and supplementing provisions relating to maintenance of public order which would facilitate effective implementation of the above provisions.

Another feature of the bill is that it provides a detailed institutional structure for the purpose of providing relief and rehabilitation to persons affected by communal disturbances.

After a comparison, it is apparent that the bill proposes to establish structures which are nearly identical to those already mandated under the DMA, envisaging the involvement of functionaries and authorities who are, in general, common.

While one deals with measures related to disaster management, including relief and rehabilitation, the other relates to relief and rehabilitation precipitated per se by communal violence.

The commission is of the considered view that such parallel structures and duplication of roles hinder good governance

Recommendations

Community policing should be encouraged. The principles laid down should be followed.
District Peace Committees/Integration Councils should be made effective instruments of addressing issues likely to cause communal disharmony. The District Magistrate in consultation with the Superintendent of Police should constitute these committees. In Police Commissionerates, these committees should be constituted by the Police Commissioner in consultation with the Municipal Commissioner. The committees should be of permanent nature. These committees should identify local problems with a potential to degenerate into communal conflicts and suggest means to deal with them at the earliest. Further, Mohalla Committees should also be organized on the same lines.
In conflict prone areas, the police should formulate programmes in which the members of the target population get an opportunity of interacting with the police as a confidence building mechanism.
A separate law to deal with communal violence is not required. The existing provisions of the Indian Penal Code and the Criminal Procedure Code need to be strengthened. This may be achieved by incorporating provisions for:
- Enhanced punishments for communal offences.
- Setting up of special courts for expeditious trial of cases related to communal violence.
- Giving powers of remand to Executive Magistrates in cases of communal offences.
- Prescription of norms of relief and rehabilitation.
For providing relief and rehabilitation to victims of communal violence, the framework provided under the Disaster Management Act, 2005 could be effectively used.

CHAPTER 10. Politics and Conflicts

Introduction

In a heterogeneous country like India, in which different sections of people have grievances that arise out of social, economic and political issues that remain to be resolved, it is important that they make use of the democratic space for the resolution of such grievances. In this respect, political parties have a crucial role to play. When the political process is not in a position to articulate such legitimate demands, conflicts emerge. In the areas now plagued by the left extremist movement, it is the failure of the political process that has enabled the movement to mobilize people and enlist them in its ranks.

Today it has become more difficult for democratic space to be used for resolving conflicts. One reason is because of compulsive politics where each political grouping has multiple identities and where conflicts impinge on regional issues almost all the political parties with regional interest in these issues take a rigid stand because of which conflicts tend to get “frozen”. Examples of these are the inter-State disputes on water, location of central projects etc where political parties of one State including the national parties make common cause against the other State thus becoming a source of conflict in the region.

Politics and Identity Issues

Identity issues are not unique to India, they are a worldwide phenomenon although they prevail in a particularly intense form in today’s India where communities based on language, religion, sect, caste and tribe have strengthened their identities. Conflicts based on such identity issues often lead to violence. A recent example is the increasing conflict generated by sections of society wanting to be counted as tribes, as evidenced in the agitation by the Gujjar community and its opposition by the Meena community in Rajasthan.

The matter is compounded by the fact that identity issues largely determine how political parties behave and function. Whether at the time of elections or in forming alliances in the legislatures or in and between political parties, the equations based on identity issues become the guiding consideration.
Identity politics has induced fundamental changes in how political parties woo the electorate. In the early days of Independence, political parties used to woo all sections of society irrespective of caste, religion, community or class. They projected an inclusive nationalist image rather than that of any sectional interest. Politicians used the need for over-all development as well as anti-poverty, rural development or employment programmes to attract votes.
Fragmentation of the political party system based on the proliferation of narrow and local identities can continue endlessly. Each segment further encourages its sub-segments to search for their political space. In Andhra Pradesh, for example, the conflict between Malas and Madigas, two important Dalit communities in the State, has led to the emergence of separate political organisations.
While it is an inevitable step in the inclusion of marginalized groups in the country’s democratic process, it can also lead to conflict and endless violence.

Recommendations

Political parties should evolve a code of conduct on the forms of dissent permissible in our democratic set up. This could be incorporated in a law, which would apply to all political parties and their functionaries. Enforcement of the law could be entrusted to the Election Commission. The law should also stipulate punitive action against political parties and their functionaries violating the prescribed forms of democratic dissent, by providing for criminal cases to be filed against them and imposing fines as deterrent.
There should be consensus that identity politics would be played within the space provided by democracy and not allowed to develop into intractable conflicts leading to violence. Political parties need to build capacity to arrive at such a consensus.

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Capacity Building for Conflict Resolution – 2nd ARC