LAW AND POVERTY

Syllabus 4th Semester NLU, Delhi

CONCEPTIONS OF POVERTY AND ITS MEASUREMENT

Notion of impoverishment will be used to critique the dominant conceptions of poverty. (v) (vi) Readings: 1. Michael Haralambos (1980) SOCIOLOGY: THEMES AND PERSPECTIVES, Oxford University Press, New York Chapter 4. 2. Amartya Sen (1981) POVERTY AND FAMINES, Oxford University Press, New York - chapter 2, 3. 3. Amartya Sen (2000) DEVELOPMENT AS FREEDOM, Oxford University Press, New Delhi Chapter 4 4. Arjan de Haan (2008) Social Exclusion: Towards a Holistic Understanding of Deprivation, in Arjan de Haan and Naila Kabeer SOCIAL EXCLUSION: TWO ESSAYS, Critical Quest, New Delhi, pp. 1-18. 5. Report of the Expert Group to Review the Methodology for Estimation of Poverty, Planning Commission, Govt. of India, Nov. 2009, available at planningcommission.nic.in. 6. Madhura Swaminathan, A Methodology Deeply Flawed, The Hindu, 5 th Feb 2010, p. 8. 7. Upendra Baxi (ed.) (1988) LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi - Introduction Measurement of poverty in India The Method Constitutionality of Poverty Line

8. Human Development Report 1997, United Nations Development Programme.

II

RELATIONSHIP BETWEEN LAW AND POVERTY

In this unit, the discussion would focus on understanding the relationship between law and poverty as it is envisaged within the sociological and Marxian approaches towards law. The aim would be to assess the ameliorative potential of law with respect to the poor. Readings: 1. Upendra Baxi (1993) MARX, LAW AND JUSTICE, M.N.Tripathi, New Delhi, Chapters 2 and 3 2. Upendra Baxi (1982) THE CRISIS OF INDIAN LEGAL SYSTEM, Vikas Publishing House, New Delhi chapter 1 and 2.

III

Law, Justice and the Poor

This section explores the constitutional promises with respect to socially and economically marginalized. The nature and scope of the promises and their ameliorative potential. Readings: 1. S.Murlidhar (2004) Economic, Social and Cultural Rights: An Indian Response to the Justiciability Debate, in Yash Ghai and Jill Cotrell (eds.) ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN PRACTICE: THE ROLE OF JUDGES IN IMPLEMENTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INTERIGHTS, London. 2. M. P. Singh, The Statics and the Dynamics of the Fundamental Rights and the Directive Principles A Human Rights Perspective, (2003)5 SCC (J) 1.

3. Onara O Neill (1986) FACES OF HUNGER: AN ESSAY ON POVERTY, JUSTICE AND DEVELOPMENT, Allen and Unwin, London Chapter 6, pp. 97-120.

(ii)

Poverty and the Criminal Justice System a) Poverty and Criminality: Some Issues b) Criminal Procedure In this section we will explore the basis for the identification of an act as a crime especially with reference to crimes like suicide, beggary as well as the notion of autonomy and free will that an individual is attributed with, in the context of his criminal acts. We would also focus on the interface between poor accused/victim, criminal justice process and its consequences in terms of impoverishment.

Readings: 1. Meena Radhakrishna (2008) Laws of Metamorphosis: From Nomad to Offender, in Kalpana Kannabiran and Ranbir Singh (eds.) CHALLENGING RULE(S) OF LAW: COLONIALISM, CRIMINOLOGY AND HUMAN RIGHTS IN INDIA, Sage, New Delhi, pp. 3-27. 2. S. Murlidhar (2004) LAW, POVERTY AND LEGAL AID: ACCESS TO CRIMINAL JUSTICE, Lexis Nexis Butterworths, New Delhi Chapter 6, pp. 255 284. 3. B. B. Pande (1988) Vagrants, Beggars and Status Offenders, in Upendra Baxi (ed.) LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi, pp. 248-276. 4. K.D.Gaur (1988) Poor as Victims of Uses and Abuses of Criminal Law and Process, in LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi, pp. 63-97. 5. 156th report of The Law Commission of India on The Indian Penal Code, portion on suicide. 6. P. Sainath (2007) The Agrarian Crisis, in Michael Higgins et al (eds.) FOOD SECURITY AND JUDICIAL ACTIVISM IN INDIA, Human Rights law Network, pp. 89-97.

(iii)

Labour Law and the Poor Minimum Wages Act, 1948

Bonded Labour (Abolition) Act, 1976 Child Labour (Prohibition and Regulation) Act, 1986 The Unorganised Workers Social Security Act, 2008

The arena of labour law will be explored to assess the nature and kind of norms embodied to prevent impoverishment and the implementation of those norms will also be evaluated. Readings: 1. T. S. Sankaran, The Unorganised Workers' Social Security Act, 2008 - A Critique, available at http://www.lawyerscollective.org/magazine/dec2008-jan2009/feature5

2. Report on Conditions of Work and Promotion of Livelihood in the Unorganised Sector (2007) National Commissions for Enterprises in the Unorganised Sector, available at http://nceus.gov.in/Condition_of_workers_sep_2007.pdf 3. Peoples Union for Democratic Rights v. Union of India AIR 1982 SC 1423. 4. Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.

(iv)

Law, Social Justice and the Poor Protection of Civil Rights Act, 1955 Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993

Social exclusion, being integral to and a significant aspect of poverty, this section will dwell upon the role of law as an instrument of social change and its potential in the context marked by systematic and deep-rooted social segregation. Readings: 1. S. R. Sankaran (2008) Social Exclusion and Criminal Law, in in Kalpana Kannabiran and Ranbir Singh (eds.) CHALLENGING RULE(S) OF LAW:

COLONIALISM, CRIMINOLOGY AND HUMAN RIGHTS IN INDIA, Sage, New Delhi, pp. 121-141. 2. Bhim Rao Ambedkar, Annihilation of Caste, in WRITINGS AND SPEECHES OF DR. BHIM RAO AMBEDKAR, vol - I, Govt. of India. 3. Upendra Baxi (1988) Untouchability: Constitution, Law and Plan, in Upendra Baxi (ed.) LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi, pp. 165-174. 4. Upendra Baxi (1988) The Protection of Civil Rights Act: Pitfalls in Implementation, in Upendra Baxi (ed.) LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi, pp. 175-185. 5. Combat Law Special Issue on Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sept-Dec 2009. 6. Report on Prevention of Atrocities against Scheduled Castes (2006) National Human Rights Commission

STRATEGIES FOR POVERTY ALLEVIATION AND THE CHALLENGES

Role of Bench and Bar This sub-section focuses on the engagement of the judiciary and lawyers with the legal issues pertaining to the conditions of poor. The role of the two in recognition and realization of rights of the poor in the light of Constitutional guarantees along with the efficacy of litigation as a strategy and strategy of litigation in the furtherance of rights of the poor will be examined.

(a) Role of Civil Society Struggle for State Accountability o o (iii) Right to Information Social Audit

Narmada Bachao Aandolan Right to food Movement

Self help Case studies

The primary focus of the unit will be the rights approach to poverty alleviation, while making an effort to distinguish it from welfare emphasizing the prospects and challenges in the context of the two. A basic understanding of the significance of economic, social rights discourse with respect to the conditions of the poor will be developed and standards used to assess the violation of these rights will also be delved into. Rights are used as a strategy for addressing different facets of poverty both by the state (through the recognition and creation of conditions for enjoyment and enforcement of rights) and by the civil society (by claiming recognition, enjoyment and exercise of rights). The section will undertake an evaluation of these endeavours. The third strategy which is separately recognized for discussion is self help or local initiative which may or may not adopt an approach geared towards formal recognition of a right by the state but involves strategies aiming at amelioration of conditions of the poor by individual or collective efforts. Readings: 1. Henry Shue (1996) BASIC RIGHTS: SUBSISTENCE, AFFLUENCE AND U.S. FOREIGN POLICY, Princeton University Press, New Jersey 2. Usha Ramanathan (2008) Eminent Domain, Protest and the Discourse on Rehabilitation, in Michael Cernea, Hari Mohan Mathur (eds.) CAN COMPENSATION PREVENT IMPOVERISHMENT, Oxford University Press, New Delhi, pp. 209-229. 3. Bernard D Mello Environmental Impact of Large Dams: A Social Critique, http://www.3inetwork.org/reports/IIR2002/HTML/chapter5.HTML

4. Jean Dreze (2007) Employment Guarantee Act and the Right to Food, in Michael Higgins et al (eds.) FOOD SECURITY AND JUDICIAL ACTIVISM IN INDIA, Human Rights law Network, pp.81-85. 5. B. B. Pande The Constitutionality of Basic Human Needs: An Ignored Area of legal Discourse, (1989) 4 SCC (J) 1. 6. Upendra Baxi (1982) THE CRISIS OF INDIAN LEGAL SYSTEM, Vikas Publishing House, New Delhi chapter 1 and 2. 7. Fernando Rojas A Comparison of change Oriented Legal Services in Latin America with Legal Services in North America and Europe, International Journal of the Sociology of Law, 1988 vol. 16, pp. 203-256. 8. Lucie E. White Mobilisation on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. and Soc. Change 535. 9. Harsh Mander (2003) Corruption and the Right to Information, in Rajesh Tandon and Ranjita Mohanti (eds.) DOES CIVIL SOCIETY MATTER? GOVERNANCE IN CONTEMPORARY INDIA, Sage Publications, New Delhi, pp. 145-163. 10.Bishnu M. Mohapatra (2003) A View from the Subalterns: The Pavement Dwellers of Mumbai, in Rajesh Tandon and Ranjita Mohanti (eds.) DOES CIVIL SOCIETY MATTER? GOVERNANCE IN CONTEMPORARY INDIA, Sage Publications, New Delhi, pp. 285-314. 11.Aruna Roy and Nikhil Dey NREGA: Breaking New Ground, http://www.hinduonnet.com/mag/2009/06/21/stories/2009062150010100.htm 12.Upendra Baxi (1988) Taking Suffering Seriously: Social Action Litigation in the Supreme court of India, in Upendra Baxi (ed.) LAW AND POVERTY: CRITICAL ESSAYS, N.M.Tripathi, New Delhi, pp. 387-415. 13.P. Sainath (2002) EVERYBODY LOVES A GOOD DROUGHT: STORIES FROM INDIAS POOREST DISTRICTS, Penguin Books, India. 14.P.Sainath Neo Liberal Terrorism in India: The Largest Wave of Suicides in History, http://www.counterpunch.org/sainath02122009.html 15.P.Sainath Farm Suicides: A Twelve Year Saga, http://beta.thehindu.com/opinion/columns/sainath/article94324.ece 16.Rajasthan PUCL Writ in Supreme Court on Famine Deaths, http://www.pucl.org/reports/Rajasthan/2001/starvation-writ.htm 17.The Special Economic Zones Act, 2005 18.The Land Acquisition Act, 1894.

19.The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 20.Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545. 21.Sodan Singh v. NDMC (1989) 4 SCC 155. 22.Azad Rickshaw Pullers Union v. State 1980 Supp SCC 601. 23.Narmada Bachao Aandolan v. Union of India AIR 2000 SC 3751. 24.Balco Employees v. Union of India (2002) 2 SCC 333. 25.Kali Das v. Govt. of Jammu and Kashmir (1987)3 SCC 430. 26.Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645.